GUARANTEE FUND FOR COMPULSORY DAMAGE INSURANCE
LexInter | August 27, 2003 | 0 Comments

GUARANTEE FUND FOR COMPULSORY DAMAGE INSURANCE

Section 1
Guarantee fund for compulsory insurance of damage
Sub-section 1

Extension of the competence of the Road and Hunting Accident Guarantee Fund to damage insurance companies

Article 80

  1. – After article L. 124-1 of the insurance code, an article L. 124-1-1 is inserted as follows:“Art.L. 124-1-1.- For the purposes of this chapter, any damage or set of damage caused to third parties, engaging the responsibility of the insured, resulting from a damaging event and having given rise to one or more claims constitutes a claim. The harmful event is that which constitutes the generating cause of the damage. A set of harmful facts having the same technical cause is assimilated to a single harmful fact. ”

    II. – After article L. 124-4 of the same code, an article L. 124-5 is inserted as follows:

    “Art. L. 124-5. – The guarantee is, according to the choice of the parties, triggered either by the damaging event or by the complaint. However, when it covers the liability of natural persons outside their professional activity, the guarantee is triggered by the harmful event. A Council of State decree may also impose one of these trigger modes for other guarantees.

    “The contract must, as the case may be, reproduce the text of the third or fourth paragraph of this article.

    “The guarantee triggered by the harmful event covers the insured against the pecuniary consequences of the claims, since the harmful event occurs between the initial entry into force of the guarantee and its termination or expiry date, regardless of the date of the other components of the incident.

    “The guarantee triggered by the claim covers the insured against the pecuniary consequences of the claims, since the damaging event is prior to the date of termination or expiry of the guarantee, and the first claim is addressed to the insured. or to its insurer between the initial effective date of the cover and the expiration of a period subsequent to its termination or expiry date mentioned in the contract, regardless of the date of the other elements constituting the claims. However, the guarantee only covers claims of which the harmful fact was known to the insured after the date of termination or expiry if, at the time when the insured became aware of this harmful fact, this guarantee does not has not been resubscribed or the was on the basis of triggering by the damaging fact. The insurer does not cover the insured against the pecuniary consequences of claims if it establishes that the insured was aware of the damaging event on the date of taking out the cover.

    “The subsequent period of guarantees triggered by the claim cannot be less than five years. The ceiling of the guarantee triggered during the subsequent period cannot be lower than that of the guarantee triggered during the year preceding the date of termination of the contract. A longer period and a higher level of subsequent guarantee may be fixed under the conditions defined by decree.

    “When the same claim is likely to bring into play the guarantees provided by several successive contracts, the guarantee triggered by the damaging event having taken effect after the entry into force of law n ° 2003-706 of 1 August 2003 of financial security is called as a priority, without applying the fourth and fifth paragraphs of article L. 121-4.

    “The provisions of this article do not apply to insurance guarantees for which the law provides other conditions for the application of the guarantee over time. ”

    III. – 1. The second paragraph of article L. 112-2 of the same code is supplemented by a sentence worded as follows:

    “Before the conclusion of a contract including liability guarantees, the insurer gives the insured a form. information, the model of which is set by decree, describing the operation over time of the guarantees triggered by the harmful event, the operation over time of the guarantees triggered by the claim, as well as the consequences of the succession of contracts having different triggers. ”

    2. The insurer is also bound by the obligations provided for in Article L. 112-2 of the Insurance Code, in its wording resulting from this law, during the first renewal of contracts following the entry into force of the this law.

    IV. – The I, II and III apply to guarantees taking effect after the entry into force of this law, due to the subscription of a new contract, or the renewal of guarantees of a current contract.

    Any other guarantee, when it is stipulated that the occurrence of the harmful event during the period of validity of the contract is a necessary condition for compensation, is triggered by the harmful event in accordance with I and II.

    Any guarantee that does not fall under either of the two preceding paragraphs is triggered by the complaint. Without prejudice to the application of contractual clauses stipulating more extensive protection, I and II are applicable.

    V. – Article L. 251-2 of the Insurance Code is amended as follows:

    1 ° In the first paragraph, the word: “generators” is replaced by the word: “harmful”. In the first, third, fifth and sixth paragraphs, the word: “generator” is replaced by the word: “damageable”;

    2 ° After the words: “guarantees,” the end of the first sentence of the fourth paragraph reads as follows: “when the harmful event has occurred during the period of validity of the contract and within the framework of the activities guaranteed at the date of termination or expiry of the guarantees, regardless of the date of the other elements constituting the claim. “;

    3 ° At the end of the first sentence of the fifth paragraph, the words: “at the time of the first complaint” are replaced by the words: “at the date of termination or expiry of the guarantees, regardless of the date of the other components of the incident ”;

    4 ° In the last paragraph, the words: “third and fourth” are replaced by the words: “fourth and fifth”.

    VI. – In the last paragraph of article 5 of law n ° 2002-1577 of December 30, 2002 relating to medical civil liability, the word: “generator” is replaced by the word: “harmful”.

    VII. – The provisions of this article come into force at the end of a period of three months from the publication of this law.

Article 81

  1. – The Insurance Code is amended as follows:I. – 1. The title of Chapter I of Title II of Book IV is worded as follows: “The Guarantee Fund for Compulsory Damage Insurance”.

    2. Throughout the code, the words: “Guarantee fund against traffic and hunting accidents” are replaced by the words: “Guarantee fund for compulsory damage insurance”.

    II.- The title of section 1 of the same chapter reads as follows: “General provisions”.

    III.- The title of section 6 of the same chapter reads as follows: “Intervention of the fund in the event of withdrawal of administrative approval of compulsory insurance companies”.

    IV. – Article L. 421-1 is amended as follows:

    exclusion of railways and trams running on their own tracks. “;

    2 ° It is supplemented by a paragraph worded as follows:

    “When the guarantee fund takes over, on behalf of the company in liquidation, the payment of the damages mentioned in article L. 211-1, it cannot exercise no recourse against the policyholders and policyholders for the recovery of the indemnities which it has paid in application of this article. »

    V. – Article L. 421-2 is worded as follows:

    “Art. L. 421-2. – The guarantee fund is a legal person governed by private law. It groups together all the insurance companies approved in France and subject to State supervision under Article L. 310-1 which cover the risks subject to an obligation to insure by virtue of a legislative or regulatory provision. It also groups together all the companies that offer car insurance and hunting guarantees. ”

    VI. – Article L. 421-9 is worded as follows:

    “Art. L. 421-9. – I. – The Compulsory Damage Insurance Guarantee Fund established by Article L. 421-1 is responsible for protecting insured persons, subscribers, members or beneficiaries of insurance contract services whose subscription is made compulsory by a legislative or regulatory provision, against the consequences of the failure of insurance companies approved in France and subject to State supervision by virtue of Article L. 310-1, with the exception of those approved for operations mentioned in 1 ° and in the last paragraph of the same article and, exclusively, for the operations mentioned in 2 ° of said article or for the assistance activities mentioned in 3 ° of this article.

    “The guarantee fund covers only claims guaranteed by the contract for which the damaging event occurs no later than noon on the fortieth day following the publication in the Official Journal of the decision to withdraw the insurer’s authorization, and which give rise to a declaration by the insured or to a first claim by a third party victim less than five years after this date.

    “II. – Insurance contracts are excluded from any compensation under this section:

    “1 ° For which an insured, a subscriber, a member, a beneficiary of services or a third party acting on behalf of one of these persons has have been able to benefit from information on the situation of the failing company or from specific advantages;

    “2 ° Relating to the bodies of maritime, lake, river, air, space and rail vehicles; goods transported; legal protection; assistance to people in difficulty, in particular during travel; liability or financial guarantee required under the international conventions on nuclear liability, on the transboundary movements of hazardous waste and on the liability of maritime, river and air carriers, and those subscribed in application of Regulation (EC) No. 2027 / 97 of the Council of 9 October 1997 on the liability of air carriers in the event of an accident;

    “3 ° Covering or compensating for risks or commitments located outside the European Community, or covering or compensating third-party victims who are nationals or residents of countries located outside the European Community;

    “4 ° Underwritten by the following persons:

    ” a) Directors, managers, personally liable partners holding, directly or indirectly, at least 5% of the capital of the insurance company, auditors and policyholders having the same qualities in other group companies, directors of the mutual insurance company;

    “B) Third parties acting on behalf of policyholders, policy subscribers, members and beneficiaries of services, cited in the first paragraph of I;

    “C) Insurance companies governed by this code, provident institutions governed by the social security code or the rural code as well as mutual societies governed by the mutual insurance code, except in the case of contracts taken out in the for the benefit of their employees or customers;

    “D) Companies falling within the scope of consolidation defined in Article L. 233-16 of the Commercial Code to which the insurance company falls, except in the case of contracts taken out for the benefit of their employees or of their clients ;

    “E) Credit institutions and persons mentioned in Article L. 518-1 of the Monetary and Financial Code, except for contracts taken out on behalf of a borrower, a client or their employees;

    “5 ° Insuring legal persons and natural persons, subscribers, members or beneficiaries, with regard to their professional activities; On the other hand, contracts taken out for the benefit of a natural person, client or member outside the framework of his professional activities or for the benefit of the employees of the legal or natural persons mentioned above are covered.

    “III. – In the cases provided for in 1 °, 4 ° and 5 ° of II, persons who are victims of damage for which the insured is responsible and who are not in a contractual situation with him due to their professional activity are compensated. by the fund.

    “A decree in the Council of State determines the modalities of application of this article. ”

    VII. – Section 6 of Chapter I of Title II of Book IV is supplemented by six Articles L. 421-9-1 to L. 421-9-6 worded as follows:

    “Art. L. 421-9-1. – I. – When, during the procedure provided for in Article L. 310-18, the Insurance Control Commission, Mutuals and Provident Institutions considers that one of the companies mentioned in the first paragraph of I of Article L. 421-9, or present on the market for motor vehicle liability guarantees, is no longer able to meet its commitments to the persons mentioned in the same article, it decides to resort to the Guarantee Fund compulsory damage insurance.

    “Before making its decision, the committee consults the guarantee fund in writing, indicating that it is considering having recourse to it. The fund has a period of fifteen days to send its observations to the committee and its representative may be received by the latter during this period. At the end of this period, or of a shorter period fixed by mutual agreement between the guarantee fund and the chairman of the commission, the commission decides on the referral of the fund and notifies it of its decision to appeal or not. to him.

    “If it contests the decision of the commission, the fund may, within fifteen days from this, refer the matter to the minister responsible for the economy. The latter can then, in the interest of the policyholders and of the policyholders, members and beneficiaries of the contracts and within a period of fifteen days, ask the commission for a new deliberation.

    “The decision of the commission to use the guarantee fund is immediately notified to the company concerned at the end of the procedure described above.

    “II. – As soon as this notification is received, the Insurance, Mutual and Provident Institutions Control Commission launches a call for tenders for the transfer of this company’s portfolio of contracts under the conditions provided for in Article L. 310-18. This call for tenders is communicated to the guarantee fund.

    “III. – The commission selects the offer (s) which it deems to best protect the interests of policyholders, policy subscribers, members and beneficiaries of services.

    “The decision of the commission which pronounces the transfer of the portfolio of contracts in favor of the company or companies it has designated is published in the Official Journal. This decision releases the ceding company from any commitment towards the policyholders, policy subscribers, members and beneficiaries of services, whose contracts have been transferred by virtue of the provisions of this article.

    “When the portfolio transfer procedure is unsuccessful, the Insurance, Mutual and Provident Institutions Control Commission informs the guarantee fund.

    “IV. – The transfer of all or part of the portfolio or the observation of the failure of the transfer procedure entails withdrawal, by the Insurance Control Commission, mutual societies and provident institutions, of all administrative approvals of the failing company. The guarantee fund performs, until the appointment of the liquidator, the acts necessary for the management of the part of the portfolio of contracts which has not been transferred. The provisional administrator appointed, where applicable, by the Insurance, Mutual and Provident Institutions Control Commission may perform these management acts on behalf of the guarantee fund.

    “Art. L. 421-9-2. – In the event of portfolio transfer, the part of the rights of policyholders, policy subscribers, members and beneficiaries of services, possibly not covered by the transferee, is guaranteed by a payment from the guarantee fund to the transferee within the limits set by decree in Council of State and in those provided for by contracts signed with the company whose approval has been withdrawn.

    “When the portfolio transfer procedure has not been successful, the rights of policyholders, policy subscribers, members and beneficiaries of services born before the termination provided for in Article L. 326-12 are guaranteed by payments, at their profit, from the guarantee fund within the limits provided for by decree of the Council of State. These payments cannot, in any case, exceed the conditions of the contracts.

    “Art. L. 421-9-3. – The minister responsible for the economy or his representative as well as the chairman of the Commission for the control of insurance, mutual societies and provident institutions or his representative may, at their request, be heard by the fund.

    “The Supervisory Commission for Insurance, Mutuals and Provident Institutions hears the representative of the guarantee fund for any question concerning an insurance company. The fund is also heard, at its request, by the committee.

    “Art. L. 421-9-4. – The guarantee fund is subrogated in the rights of the insured, policy subscribers, members and beneficiaries of services, up to the amount of the sums it has paid.

    The guarantee fund is also subrogated, within the same limits, in the rights of the company whose authorization has been withdrawn, up to the amounts payable by virtue of the execution of the reinsurance treaties in progress. The payments of the sums due in this respect and within the same limits by the reinsurers are made for the benefit of the guarantee fund. Notwithstanding any legal provision or any contractual clause, no indivisibility, termination or resolution of reinsurance treaties can result from the sole withdrawal of authorization from the ceding company that is a member of the guarantee fund.

    “The guarantee fund may initiate any liability action against the de jure or de facto directors of the insurance company whose default has led to its intervention in order to obtain reimbursement of all or part of the sums paid. by him. The fund may also initiate a liability action against the persons mentioned in a of 4 ° of II of article L. 421-9, for the purpose of obtaining reimbursement of all or part of the sums paid by it. It informs the Supervisory Commission of insurance, mutual societies and provident institutions.

    “In order to obtain reimbursement of compensation for third parties who are victims of damage for which a legal person or a natural person is responsible within the framework of his professional activities for which the insurer has been the subject of the procedure provided for in Article L. 421-9-1, the guarantee fund initiates an action against the person responsible for the damage. When the guarantee fund takes over, on behalf of the company in liquidation, the settlement of the damages mentioned in article L. 211-1, the seventh paragraph of article L. 421-1 is applicable.

    “A decree in the Council of State determines the modalities of application of this article.

    “Art. L. 421-9-5. – The members of the board of directors of the guarantee fund, as well as any person who, by virtue of his or her functions, has access to the documents and information held by the guarantee fund, are bound by professional secrecy under the conditions and under the penalties provided for in article 226-13 of the penal code. This secrecy cannot be enforced either against the judicial authority acting in the context of criminal proceedings, nor against the civil courts ruling on an appeal against a decision of the guarantee fund, nor against the Control Commission. insurance, mutuals and provident institutions.

    “Art. L. 421-9-6. – A decree in the Council of State specifies:

    “1 ° The conditions and limits of compensation per insured, subscriber, member or beneficiary, the terms and deadlines for compensation as well as the rules relating to customer information. The same decree also sets an overall multi-year ceiling for the intervention of the fund for the missions defined in article L. 421-9, to the exclusion of those defined in articles L. 421-1 and L. 421-8. ;

    “2 ° The time limits for the foreclosure of payment requests presented by the transferee companies of the portfolio or by the insured, subscribers, members or beneficiaries;

    “3 ° The procedures for defining the guarantee limits in the event of a transfer of the portfolio of the defaulting company;

    “4 ° The list of mandatory guarantees covered by the guarantee fund, as well as the conditions for indemnifying beneficiaries of guarantee contracts, in particular the applicable deductible and the percentage of compensation paid by the guarantee fund for the sums that the defaulting insurance company would have had to pay in the event that its commitment was fulfilled.

    “This decree can only be amended after consulting the guarantee fund. ”

    VIII. – In Article L. 324-5, the words: “in Article L. 423-1” are replaced by the words: “in Articles L. 421-9 and L. 423-1″.

    IX. – After article L. 326-14, an article L. 326-14-1 is inserted as follows:

    “Art. L. 326-14-1. – When a company has been the subject of a withdrawal of authorization within the framework of the provisions of Article L. 421-9, the Supervisory Commission for Insurance, Mutuals and Provident Institutions may decide, where applicable, that the natural or legal persons carrying out insurance brokerage through which contracts have been taken out with this company must pay back to liquidation a share of the commissions received for any reason whatsoever, from time to time of these contracts, within the limit of one quarter of the commissions received since January 1 of the year preceding the year in which the approval is withdrawn. The same provision applies to non-salaried representatives of the same company, who do not were not required to reserve exclusively for the latter the exclusivity of their contract contributions. ”

    X. – Articles L. 326-17 to L. 326-19 are repealed.

    XI. – In the first paragraph of Article L. 421-10, the words “and L. 421-9” are deleted.

    B. – The provisions of Article L. 421-9 of the Insurance Code in the version resulting from this law apply to insured persons, subscribers, members or beneficiaries of insurance contract services who are subject to the consequences of the failure of insurance companies whose authorization has been withdrawn from the promulgation of this law or whose liquidation procedure was still in progress at that date. A Council of State decree determines the conditions under which the Guarantee Fund for compulsory damage insurance intervenes for failures still in progress at the date of the promulgation of this law.

Sub-section 2

Various extensions of the Guarantee Fund for

compulsory damage insurance

Article 82


I. – The second paragraph of article 2 of law n ° 74-1118 of December 27, 1974 relating to the revaluation of certain annuities granted in compensation for damage caused by a land motor vehicle is worded as follows:

“The increases including the payment is the responsibility of the insurance companies and the guarantee fund provided for in Article L. 421-1 of the Insurance Code are managed and financed by said fund. ”

II. – The first paragraph of article 3 of law n ° 51-695 of May 24, 1951 on the increase of certain life annuities and pensions reads as follows:

“The increases the payment of which is the responsibility of insurance companies are managed and financed by the guarantee fund provided for in Article L. 421-1 of the Insurance Code. ”

III. – After the third paragraph of Article L. 421-1 of the Insurance Code, two paragraphs are inserted as follows:

“The guarantee fund also compensates the damage resulting from an injury to the person suffered by the victims or their successors. right, when this damage has been accidentally caused by animals which have no owner or whose owner remains unknown or is not insured, in places open to public traffic and when they result from an accident of circulation on the ground. The guarantee fund pays the indemnities which cannot be covered for any other reason.

“It also compensates, under the conditions and limits set by decree taken by the Council of State, damage caused to property resulting from the events referred to in the third and fourth paragraphs. However, when the person responsible for the damage is unknown or the animal is not identified, this damage is only covered if the driver of the accident vehicle or any other person has suffered bodily injury. ”

IV. – Article L. 421-1 of the same code is supplemented by a paragraph worded as follows:

“The guarantee fund is also responsible for managing and financing the increases in annuities provided for in article 1 of law n ° 74-1118 of December 27, 1974 relating to the revaluation of certain annuities allocated in compensation for the damage caused by a land motor vehicle and Article 1 of Law No. 51-695 of May 24, 1951 on the increase of certain life annuities. ”

V. – Article L. 421-1 of the same code is supplemented by a paragraph worded as follows:

” The guarantee fund may finance, according to the terms and within the limits set by decree of the Council of State, actions aimed at reduce the number of traffic accidents and prevent uninsured motor vehicle liability. ”

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