Road Safety and European Law

Motorcyclists are now formally recognised as vulnerable road users in the context of road safety, in line with the guidelines of Directive (EU) 2019/1936, transposed into national law by Decree-Law 84-B/2022.

This legal framework reinforces the principle of strict liability for risk, especially in accidents between heavy motorised vehicles and vulnerable road users such as motorcyclists, cyclists and pedestrians. In line with European law, drivers of vehicles with a greater potential for harm assume a greater degree of responsibility in the event of an accident.

The measure aims to reduce serious accidents and guarantee greater protection for those travelling with less physical protection. The principle is also laid down in the legislation of other EU member states, consolidating a system of reinforced protection for those most at risk on public roads.

This change requires a coordinated response between public policies, enforcement and road education, ensuring that infrastructure, driver behaviour and the legal framework converge to effectively protect motorcyclists.

Motorcyclists as Vulnerable Road Users

Responsibility for risk and harmonisation with European law

Within the framework of European and national road safety policies, motorcyclists are now recognised as vulnerable road users, a status that has direct implications for the analysis of civil liability in the event of an accident. This qualification is the result of a legislative development that strengthens the protection of the most exposed road users.

Directive 2019/1936, which amended Directive 2008/96/EC on road infrastructure safety management, expressly introduced the concept of "vulnerable road users", covering:

• Pedestrians
• Cyclists
• Motorcyclists

The aim is to ensure that road safety policies take account of the increased risk to these groups, obliging member states to adapt infrastructure management and risk assessment practices accordingly.

Assembly of the Republic Resolution 43/2025 of 25 February 2025

Main points recommended to the government:

• Eliminate slippery materials in road expansion joints.
• Gradually replace expansion joints, according to Infraestruturas de Portugal's timetable.
• Prohibit speed bumps on bends, taking into account the risks to motorcyclists.
• Create specific vertical signage for motorcyclists (warnings for railway lines, joints, grilles, metal covers).
• Regulate advanced zones for motorbikes near traffic lights and junctions.
• Apply protection to the metal guardrails on roads (motorways and main roads), prioritising "black spots" and planning the extent of the protection.

National Transposition - Decree-Law 84-B/2022

This decree transposes Directive (EU) 2019/1936 into Portuguese law. It recognises that motorcyclists are among the road users most at risk of serious and fatal injuries, and states:

"Road safety assessment shall take into account the increased risks for vulnerable road users, namely pedestrians, cyclists and motorcyclists."

(Art. 2 of Decree-Law 84-B/2022)

In line with the principle of objective liability for risk - enshrined in the civil liability regime for motor vehicles - drivers of motor vehicles that pose a greater risk (namely cars and lorries) have an increased duty of care and vigilance towards vulnerable users.

This principle, already established in Portuguese doctrine and jurisprudence, has now been reinforced by the inclusion of motorcyclists in the legal concept of vulnerability, bringing the Portuguese regime closer to that already in force in countries such as Germany, France and the Netherlands.

Practical implications:

• Greater diligence for drivers of larger vehicles
• Reinforcement of imputation of liability in situations of collision with motorcyclists, even without direct fault
• Adapting road infrastructure to improve visibility, grip and safety for motorcyclists
• Focus on training and awareness-raising campaigns

Recognising motorcyclists as vulnerable road users represents an important step forward for road safety in Portugal, bringing the country into line with the best practices in the European Union. At the same time, it consolidates the responsibility of drivers with the greatest potential for harm, in a legal system that favours the protection of the weakest.

This is a paradigm shift that places the principle of road solidarity at the centre of public policy, legislation and case law.

With the transposition of Directive (EU) 2019/1936 into the Portuguese legal system, through Decree-Law 84-B/2022, motorcyclists were formally included in the category of vulnerable road users. This legislative change has direct implications for insurers, particularly in the area of compulsory motor vehicle liability.

Aggravated Risk in Motorcycle Accidents

In collisions between motor vehicles (cars, lorries, etc.) and motorbikes, the likelihood of serious injury or death for the motorcyclist is significantly higher, even when travelling legally. The European legislator has recognised this structural risk factor and has ordered member states to adopt measures to strengthen the legal and infrastructural protection of these users.

Insurers' obligations: Motor Civil Liability and the Risk Principle

Legal framework:

Motor vehicle civil liability in Portugal is currently governed by Decree-Law 291/2007, which requires compulsory motor vehicle civil liability insurance for all motor vehicles.

This insurance

• Guarantees compensation for damage caused to third parties as a result of the circulation of the insured vehicle;
• Applies regardless of fault, as long as there is a causal link between the use of the vehicle and the damage suffered.

Application to the case of motorcyclists:

When a motorcyclist is the victim of an accident caused by a larger vehicle, the insurer of that vehicle may have to compensate the damage even if fault is not fully clarified. This system stems from the application of the principle of risk, which is widely accepted in Portuguese jurisprudence:

"Anyone who creates a specific risk with the circulation of their vehicle must be liable for the damage that this activity may cause, regardless of proof of fault."

Thus, even without proven fault on the part of the driver, insurers can be called upon to compensate motorcyclists on the basis of the objective risk of motor traffic - aggravated by the motorcyclist's vulnerable status.

Aggravated Liability and Specific Duties of Insurers

When insurers are called upon to guarantee this type of risk, they have specific obligations, namely:

Duty of speed in settling the claim:

• In accidents involving vulnerable users, a prioritised and speedy analysis is expected, especially in cases involving serious bodily injury.

Proportional assessment of fault:

• Even in cases of shared responsibility, the vulnerable status of the motorcyclist must be taken into account in the proportional allocation of responsibility, as provided for in Article 570 of the Civil Code.

Compensation for pecuniary and non-pecuniary damage:

• Serious injuries, periods of incapacity and moral damage (suffering, loss of quality of life, aesthetic damage) must be fully compensated, in accordance with the criteria of the National Disability Assessment Table and up-to-date case law, although these are not binding in court decisions.

Taking out policies with specific clauses:

• Some insurers already offer additional cover for motorcyclists, including own damage, personal accidents and legal protection - which can reduce future litigation and speed up compensation.

Harmonisation with European law

The actions of insurers should also respect the principles of Directive 2009/103/EC (compulsory motor insurance), complemented by the requirements of Directive 2019/1936 regarding the protection of vulnerable users. The evolution of European legislation points to a model in which:

• Objective liability tends to prevail in accidents involving vulnerable users;
• Insurers must adapt to guarantee faster, fairer and more proportionate solutions.

Recent legislative developments place motorcyclists at the centre of the legal and insurance protection regime. This new approach requires insurers not only to fulfil insurance contracts formally, but also to play an active role in effectively protecting the rights of vulnerable road users.

A safer road also starts with insurers who are more aware of their social, legal and economic role.

Article 570 of the Civil Code, regarding the distribution of responsibility between drivers and the recognition of vulnerability, tells us that:

Article 570 - Liability of several persons

• If the act was carried out by several people and it is not possible to determine the extent to which each contributed to the damage, liability shall be joint and several.
• If, however, the injured party contributed culpably to the damage, the amount of compensation will be fixed fairly, taking into account the seriousness of the faults and the consequences of the event.

Application in road accidents involving motorbikes

In road accidents involving motorbikes and cars, it is common for both drivers to have committed acts with some causal relevance to the accident - for example, a motorcyclist who was speeding and a car driver who changed lanes without signalling. In these cases, Article 570(2) applies, determining the equitable distribution of liability.

However, case law and doctrine tend to mitigate the motorcyclist's liability based on two factors:

1. Physical vulnerability of the motorcyclist

Since motorcyclists are categorised as vulnerable users (cf. Decree-Law 84-B/2022 and Directive 2019/1936), their physical fragility in the face of impact must be taken into account when weighing up fault.

• The courts recognise that the greater susceptibility to serious injury justifies enhanced protection, which can lead to a mitigation of the motorcyclist's liability, even if he or she contributed to the accident.
• The equity provided for in Article 570(2) serves precisely to adjust liability according to the physical and technical imbalance between the parties involved.

Practical example: A motorcyclist was travelling slightly above the permitted speed, but a car made a sudden manoeuvre to change direction without warning. Even if there is concurrent fault, the courts may assign most of the responsibility to the car driver, as he represents a higher risk.

2. Liability for Objective Risk

The majority of Portuguese doctrine argues that the principle of risk, although not expressly enshrined in the Civil Code, is adopted by case law in matters of road accidents.

This means that

• Whoever drives a vehicle with greater damaging potential assumes a greater risk, regardless of fault.
• In the event of concurrent fault, the risk created by that vehicle justifies a greater degree of strict liability, which should be reflected in the equitable application of Article 570.