Overview of Compensation Funds in France and Germany

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Prof. Dr. Jonas Knetsch from the University of Reunion Island explores the topic of compensation funds in France and Germany, highlighting the diversity and classification of these funds. The presentation covers various groups of compensation funds, including those for traffic accidents, medical incidents, environmental harms, and financial services. The analysis delves into the dogmatic, procedural, practical, and organizational aspects of these funds, shedding light on their importance in the realms of civil liability and public health.

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Prof Dr Jonas Knetsch, LLM University of Reunion Island (France) jonas.knetsch@univ-reunion.fr Compensation Funds in France and Germany University of Antwerp 7 June 2016

Introduction - still a Cinderella subject for many tort law scholars - despite a compensation fund boom over the last 25 years

Compensation Funds in France and Germany I. Diversity of compensation funds II. Dogmatic issues III. Procedural issues IV. Practical issues V. Organizational issues

I. Diversity of Funds - more than 25 compensation funds in France and Germany - 1st group: traffic accident and crime victims Verein Verkehrsopfer- hilfe e.V. (1965) Fonds de garantie automobile (1951) -> FGAO Fonds de garantie des victimes d actes de terrorisme et d autres infractions (FGTI) (1977/1990)

I. Diversity of Funds - more than 25 compensation funds in France and Germany - 2nd group: medical and public health-related accidents Fonds d indemnisation des transfus s et h mophiles (1991) (1991) Fonds d indemnisation des transfus s et h mophiles Thalidomide Fund (1970) HIV-Hilfe-Gesetz (1995) Dopingopfer-Hilfegesetz (2002) 2004 ONIAM (2002)

I. Diversity of Funds - more than 25 compensation funds in France and Germany - 3rd group: environmental harms IOPC Fund (1971/1992) Sewage-sludge fund Agricultural damages caused by wild animals and natural disasters ; mining damages F : Asbestos fund (> public health) - 4th group: financial services Failure of a bank or an insurance company D : Notary fraud

I. Diversity of Funds - Classification of compensation funds funds replacing civil liability (Haftungsersetzung) vs. funds completing civil liability (Haftungserg nzung) subsidiary compensation vs. primary compensation retrospective vs. prospective compensation funds Gaps in Civil Liability Public health scandal Fund Past Future Present

Compensation Funds in France and Germany I. Diversity of compensation funds II. Doctrinal issues III. Procedural issues IV. Practical issues V. Organizational issues

II. Doctrinal issues Q: What exactly is a Compensation Fund? compensation funds = private insurance? ~ Fund Benefits Policyholder Insured Person ~ Contributor Guarantee Premium Insurer ~ Fund Beneficiary Insured Person ~ Contributions

II. Doctrinal issues Q: What exactly is a Compensation Fund? compensation funds = private insurance? compensation funds = social security/welfare? similarities differences

Compensation Funds in France and Germany I. Diversity of compensation funds II. Doctrinal issues III. Procedural issues IV. Practical issues V. Organizational issues

III. Procedural Issues Q: What is the Difference between a Civil Liability Action and Compensation by a Fund? - fund compensation advantages: timeliness, simplicity comprehensive information on website quasi-administrative procedure

III. Procedural Issues Application form (French asbestos fund)

III. Procedural Issues Q: What is the Difference between a Civil Liability Action and Compensation by a Fund? - acceptance of compensation procedure victimological studies procedural guarantees (independance, impartiality) role of lawyers

Compensation Funds in France and Germany I. Diversity of compensation funds II. Doctrinal issues III. Procedural issues IV. Practical issues V. Organizational issues

IV. Practical Issues Q: Are Fund Benefits Equal to Full Compensation under Tort Law? - 1st point of criticism: variety in the level of compensation full compensation (r paration int grale) vs. partial compensation or lump-sum liability of a third-party? more favourable treatment of physical injuries

IV. Practical Issues Q: Are Fund Benefits Equal to Full Compensation under Tort Law? - 2nd point of criticism: minimalist view of full compensation non-pecuniary damages under French tort law arbitrary assessment of pr judice moral compensation guidelines (ONIAM, reform of civil liability)

Compensation Funds in France and Germany I. Diversity of compensation funds II. Doctrinal issues III. Procedural issues IV. Practical issues V. Organizational issues

V. Organizational Issues Q: How should Compensation Funds be Coordinated with Tort Law? - problem of cumul d indemnit s 1990 s: Council of State vs. Court of cassation legislator: acceptation of compensation offer = out of court settlement (transaction) csq: no additional compensation for same heads of damages

V. Organizational Issues Q: How should Compensation Funds be Coordinated with Tort Law? - consolidation of existing compensation funds ( super-fund ) D: environmental compensation fund (project) F: compensation fund for personal injuries (project) critical assessment alternative : single-window approach

Conclusion Law of Compensation (Entsch digungsrecht) Social security and welfare insurance Private Civil and state liability Compensation Funds

Prof Dr Jonas Knetsch, LLM University of Reunion Island (France) jonas.knetsch@univ-reunion.fr Thank you for your attention! University of Antwerp 7 June 2016