Health Care Reform as an Entry Point into the Totalitarian Welfare State?

A truck driver who sits behind the wheel for 13 hours at night is immediately taken out of circulation, if he hasn’t already woken up in the ditch. The renewed compromise on health care reform probably came about in a similar way with a comparable result.


Compulsory health insurance for all (as an introduction to general citizens’ insurance) is now intended to dispel the concerns of private health insurers (PKV) that the basic tariff will only be selectively taken out by the uninsured when they become ill.

With such Verschlimmbesserungen one should consider oneself as a PKV federation whether one may still risk Meckern. After all, no one will complain about headaches anymore if the guillotine is threatened as an adequate solution. Above all, compulsory insurance for all appears to be constitutionally questionable. Finally, the private autonomy of the citizen is curtailed more than necessary.

It means not only social security, but depending on the clientele possibly private health insurance – presumably you can not simply choose. This would be a first – not only in social security. If this were permissible, then old-age provision in social or private pension insurance could also be made compulsory, even abolishing any alternative form such as occupational pension schemes. Again, constitutionalists would doubt the necessity and appropriateness.

What do you mean “for everyone”:

All those living in Germany, all Germans, all employed persons and their relatives, really all of them, or at least all of them whom the German justice system can apprehend?

Are you then not allowed to enter Germany at all without proof of health insurance?

In the case of foreign au pairs, compulsory health insurance has been a de facto reality for decades – in line with the level of benefits, premiums start at 22 euros/month. The basic tariff, however, at a high performance level of the statutory health insurance for all would be allowed to cost up to about 530 euros per month. Or will you no longer get an ID card, a work permit, a business registration, or receive a fine – and if you don’t pay it, a jail cell if you don’t adequately meet your insurance obligation?

Will the lawyer be disbarred if he is without health insurance, or will the private builder have to check that the builder also has health insurance?

Are you no longer allowed to cancel your health insurance and neither is your health insurer if you don’t pay your premiums? In private compulsory long-term care insurance, for example, the health insurer is already not allowed to terminate the policy if only this is not paid – the shortfall is then made up within the private health insurance. There are, for example, so-called “Heilfürsorgeberechtigte” who – from the police, fire brigade or Bundeswehr – are fully cared for in case of illness – these have no health insurance at all today.

The Krankenversorgung der Bundesbahnbeamten (KVB) and the Postbeamtenkrankenkasse are neither social health insurance funds nor private insurance companies – but those insured against illness there need neither statutory nor private health insurance. The “Werk gegenseitiger Hilfe im Verein Pfälzischer Pfarrerinnen und Pfarrer e.V.”, the professional association of pastors of the Protestant Church of the Palatinate, is also a social self-help institution that does not fall under either statutory or private health insurance – similar institutions are also found elsewhere. The Insurance Supervision Act explicitly exempts them from insurance supervision. So what alternative insurance against the event of illness will remain permissible in future and mean that those concerned will remain unaffected by the newly introduced general health insurance obligation?

The question then arises as to whether the scope of compulsory health insurance cover is also prescribed. A duty without any prescribed minimum scope would practically run into the void – that is why, for example, in the motor vehicle liability insurance, a statutory minimum scope is also mandatory, without which no motor vehicle is registered or even compulsorily immobilised. If, in the future, one only has to take out health insurance to the extent that it corresponds to the statutory health insurance, then, for example, only outpatient benefits with a 20,000 euro deductible and, if necessary, with further exclusions or a daily sickness allowance of 5 euros would be sufficient – for today’s employer’s allowance (which is not also based on a comparability with the statutory health insurance in terms of amount), this would be sufficient in any case. If, however, the minimum scope is prescribed, then further constitutional concerns arise – just as they have already been expressed against the basic tariff going beyond an absolute minimum.

The constitutional lawyer will look at every compulsory service component, and for each of them the question of the prohibition of excess will arise, from the point of view of the citizen: “Politics for 82 million people” also means a remarkable potential for going all the way to the Constitutional Court. Even a complaint in only one instance is sufficient to stay the proceedings and to appeal to the Constitutional Court if the judge considers the statutory provision to be unconstitutional.

Or is, for example, private health insurance that reimburses only 50 or 70 percent of the costs sufficient to meet the future insurance obligation? Should a 100 percent coverage and this also over prescribed comprehensive service areas be prescribed? Then perhaps even many today privately insured would have to increase your insurance expensive, which so far a lower protection is enough. But is a dental prosthesis, which even in a luxury version costs only 20,000 euros (comparable to the price of a simple new car), really an existential life risk that cannot be financed by anyone and against which everyone would have to take out compulsory insurance?

Even the statutory health insurance only pays a percentage subsidy here, which is also based on the most economical health insurance version. Doctors do not necessarily need protection against outpatient doctor’s fees because of treatment by colleagues and pharmacists do not need protection against drug costs, dentists do not need protection against dental treatment costs or dental prostheses – as can be seen from corresponding private health insurance offers. And for glasses, the legislature has already determined that everyone can well pay for them themselves, and has therefore largely removed them from the benefits catalogue of the GKV. Furthermore, there is the allowance – persons entitled to an allowance only need supplementary cover anyway, up to a maximum of the amount exceeding the percentage reimbursement (e.g. 50 per cent, 70 per cent or, in the case of children, 80 per cent) of the allowance.


Up to now, the general legal opinion has been that civil servants are free to take out additional insurance cover, e.g. through their own assets instead of additional private insurance. Should he now be required to take out 100 percent private insurance to cover the entire difference? This could also be a constitutionally intolerable special sacrifice on the part of private health insurers, because the obligation to include customers who are no longer insurable in private health insurance in corresponding tariffs would often mean certain losses for the insurer – and thus the limit of the social obligation of property may have long been exceeded. However, even civil servants who are willing to take legal action will oppose such a disenfranchisement – as they did unsuccessfully with the compulsory introduction of compulsory long-term care insurance – if necessary all the way to the Federal Constitutional Court. Those insured by the KVB (Krankenversorgung der Bundesbahnbeamten – health insurance for civil servants of the German Federal Railways) receive from there partly 100 percent, partly only 90 percent with further restrictions.

Most of the people insured there do not have and do not need any additional private cover – should this change or is only 90 percent still sufficient in some cases? Aid is not only available for civil servants, but every employer is free – and this is also practised – to promise his employees (e.g. also those who are not compulsorily insured) aid in the event of illness – e.g. along the lines of the civil servant’s allowance.

This is expressly provided for under SGB V, for example for teachers at private schools, and is also practised to a large extent and even promoted by the state as part of the constitutionally required financing of private schools. The abolition of this possibility of enabling teachers at increasingly sought-after private schools to enjoy conditions comparable to those for teachers at public schools would possibly even interfere with the constitutionally expressly prescribed right to exist of these forms of school. Are private schools – which may be disliked by some politicians – now to be pushed back by making it more difficult for them to recruit suitable teachers on terms comparable to the public sector?

Should such possibilities of liberal voluntary provision for the event of illness be abolished or should those entitled to benefits – who may already be adequately covered – also be forced to take out compulsory private or social insurance to a prescribed extent?

The suspicion arises that private health insurance is to secure new sinecures here as a substitute for lost market opportunities by forcing additional groups of people who were previously covered by other means to take out private health insurance – at the expense of previously widespread liberal other forms of cover. Should PKV be compensated in this way for lost customers in other ways?

Furthermore, it would be an additional advantage for private health insurance companies if every insured person were also forced to take out a comprehensive minimum level of insurance that is not required in individual cases – e.g. percentage and absolute deductibles or the waiving of certain benefits would only be permitted to a limited extent. The additional premium income from this could compensate for the decline in new entrants due to the stricter requirements for exemption from insurance in the SHI system – total exemption from insurance would be abolished anyway. Nevertheless, experts expect that some private health insurance providers will be forced to withdraw from the market for economic reasons.

This raises far-reaching practical implementation questions and constitutional concerns. For example, the questions of equal treatment and the limits of permissible expropriation are affected. As long as the health care reform was only intended to create regulations for private and statutory health insurance, these questions that are now arising could be left out of the equation.


However, compulsory insurance “for all” – and this only in the statutory or private health insurance – affects wide areas of currently existing models outside these two forms of insurance, which cannot now simply be abolished in favour of statutory or private health insurance without raising new constitutional concerns. One can almost assume that the private insurance industry – which has already demanded that private old-age provision be made compulsory by law for everyone – even sees state compulsion – possibly underpinned by fines, calls for wanted persons and threats of imprisonment – to conclude private insurance contracts as desirable – a path to the totalitarian welfare state (into which private insurers would then also allow themselves to be integrated in order to survive). The fact that the economy is won over by granted advantages in such political developments has also been experienced in the past. Maybe one day, in order to secure the social totalitarian welfare state, the three-child family will be prescribed and singles who are labeled as pathologically antisocial will be sent to family rehabilitation camps protected by barbed wire and electric fences?


by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm


courtesy of


and ( published in Die Zahnarzt-Woche 04/07, page 6)

and (published in January 2007)

and (published in EWuB 1/07, page 143)


from (published in P.T. Magazine 2/2007, page 12)

Our office in Munich

You will find our office at Fasolt-Strasse 7 in Munich, very close to Schloss Nymphenburg. Our team consists of highly motivated attorneys who are available for all the needs of our clients. In special cases, our law firm cooperates with selected experts to represent your interests in the best possible way.

About the author

Dr. Johannes Fiala Dr. Johannes Fiala

Dr. Johannes Fiala has been working for more than 25 years as a lawyer and attorney with his own law firm in Munich. He is intensively involved in real estate, financial law, tax and insurance law. The numerous stages of his professional career enable him to provide his clients with comprehensive advice and to act as a lawyer in the event of disputes.
»More about Dr. Johannes Fiala

On these pages, Dr. Fiala provides information on current legal and economic topics as well as on current political changes that are of social and/or corporate relevance.

Arrange your personal appointment with us.

Make an appointment / call back service

You are already receiving legal advice and would like a second opinion? In this case please contact Dr. Fiala directly via the following link.

Obtain a second legal opinion

(The first phone call is a free get-to-know-you conversation; without consulting. You will learn what we can do for you & what we need from you in terms of information, documents for a qualified consultation.)