The Recourse Claim of the Polish Compensation Body in Cases of Uninsured Vehicles—Analysis of Its Nature and Scope in the Light of Private International Law

The chapter undertakes an analysis of the recourse claim of the Polish Motor Insurers’ Bureau, which is the Polish compensation body in cross-border traffic accident cases. The inquiry involves questions related to a situation where the Bureau—acting pursuant to the Polish regulations on compulsory insurance—has reimbursed the proper foreign compensation body or a foreign bureau for the payment the latter had made to the injured party when no insurance coverage was provided by the vehicle holder. The right to subrogation of compensation bodies has not been harmonized by the Codified Directive 2009/103. The first part of the article deals with the private international law analysis, which leads to the determination of the law applicable to the recourse right and the extent of its application (3). The author argues first that the public nature of the recourse claim is one of the decisive factors in that analysis (2). The relationship between the Bureau and the injured party resembles the one between a motor third-party liability (MTPL) insurer and the injured party; however, the Bureau cannot be legally qualified as an insurer. This argument should prevail in the interpretation of rules that form exceptions to the main rules, in particular as regards rules on jurisdiction (Sect. 3.2). In the second part of the chapter (Sect. 4), the structure of the recourse action is discussed, with a particular focus placed on the conditions, personal scope and extent of compensation that can be recovered by the Bureau. The considerations include a necessary comparison between the recourse claim of the Bureau and the recourse by the Polish Insurance Guarantee Fund. The author concludes, i.a., that any institutional recourse provided by the legislator, or enforceable through the EU regulations, such as the one belonging to the Bureau, should be construed narrowly. The interpretation according to which the standard of liability in recourse towards the Bureau should be based on fault is presented. The author also calls for the use of mechanism to alleviate the burden of liability put on the person who failed to insure the vehicle or who caused the damage.