On 15 July 2015, the Federal Financial Supervisory Authority (BaFin) issued a statement on foreign private health insurance (PKV), including considerable legal errors. Here now part 2.
High risk for European health insurance intermediaries from 2016″?
In addition to the legal errors already mentioned (we already reported in Part 1), there is a risk for the provider in cases other than genuine correspondence insurance that the new provision in the ISA will be regarded as protective legislation and that the insurance contracts brokered will be “null and void”. This is expressly referred to in the explanatory memorandum to the Act when it states: “In this way, a legal situation comparable to that of the German Banking Act (Section 32 (1) sentence 1, Section 53b KWG) is also brought about”. (BT-Drucksache 18/2956 of 22.10.2014), in future in §§ 57 ff. (to 73) VAG n.F (= VAG2016). Whoever violates § 32 KWG as an intermediary is usually completely and not only his reputation ruined, because he is personally liable for all investment losses, is usually at least previously convicted, or is temporarily accommodated at state expense, § 54 KWG. The new ISL now also offers the prospect of such an approach for certain cross-border brokerage services.
It has been disputed until now whether brokers are always intermediaries – and possibly insurance advisors are not, just like lawyers, whereby they are even allowed to act as intermediaries, but not the insurance advisor, who merely helps the UN to obtain insurance cover itself, like the expert if necessary. If it is a correspondence insurance policy, the future UN can also be assisted by advisors, as long as he procures the insurance cover himself – for example as a travel souvenir on the occasion of a trip to the mountains or even just on a virtual trip along the threads of the world wide web. Then, of course, the German VAG will not intervene.
Expulsion from paradise for tax evaders
Brokers in CH, for example, who are approached from D should simply know how to act legally as messengers from the UN to the BoD. Fax, e-mail, letter, telephone, bottle post or target missile and, if one is closer, also the stone with the wrapped letter through the window or the messenger are the beginning of a correspondence on the initiative of the UN and thus, if necessary, a correspondence insurance.
It does not matter whether the messenger, who is also a real estate agent by profession, is based in D or CH. In a concrete case, he may not mediate, but limit himself to a messenger activity. Then he himself is not even remotely covered by any VAG or VVG.
However, if the German UN has engaged a domestic broker (even if the commission remains abroad as black money), or a bank employee as an agent of a credit institution with its registered office in Luxembourg(leaks), in order to buy an insurance from the Principality of Liechtenstein or the Helvetic Confederation, Section 9 of the old version of the EGVVG already nullified the choice of law due to an “intermediary”. Thus, the German VVG was already in force in the past, for example with the consequence that a foreign private health insurance company could not cancel and no bankruptcy privilege could be effectively agreed for a foreign life insurance company.
Legal coinsurance at home and abroad
There is also the possibility of co-insurance as a VP in a group that is based abroad and is the UN of the insurer (BoD) there. It could also be based in Germany and be a domestic BoD. It is important that it is not a substitute health insurance, i.e. one that replaces a SHI system. However, mere co-insurance does not replace membership in the SHI system, since the contract is with the group that can never be a member of the SHI system.
Co-insurance as a family member can replace a non-contributory family insurance in the SHI system. In this case, German law may apply, but since it is not a substitutive health insurance policy, it does not have to be calculated according to the type of life insurance policy, and the other protective regulations specifically for substitutive health insurance, life insurance policy according to the type of life insurance (with ageing provisions) or compulsory insurance (which may not be the case, but a – quite adequate – other “comparable” insurance) do not apply, even if German law applies in other cases. The latter does not apply anyway, even if the UN group is located abroad.
Other coverage excludes insurance obligation
For example, the ruling (Ref. B 12 KR 14/11 R) of the Federal Social Court (BSG) of 20.03.2013 confirmed that although the US health insurance TRICARE (of the US Armed Forces) does not meet the insurance obligation, it is an alternative coverage that excludes the insurance obligation.
Incidentally, the Merchant does not need to be granted a legal claim to the benefits even in the case of compulsory private health insurance. This follows from the ruling of the Higher Regional Court of Cologne (OLG Cologne, ruling of 08.03.2013, ref. 20 U 218/12) that the own insurance obligation can also be fulfilled by a co-insurance (wife, adult child) with a third person.
However, the legislator subsequently clarified even more clearly in the wording of the VVG that only the UN, but not the CP has a legal claim to the insurance benefits (according to a different ruling of the Federal Court of Justice interpreting the wording of the VVG in the presumed intention to legislate, Ref: IV ZR 205/04 of February 8, 2006). In 2008, it clearly clarified this in § 194 (3) VVG and thus gave the BGH a negative ruling. It is therefore excluded that the legislator wants to make the own legal claim to the benefits a prerequisite for the fulfilment of the insurance obligation.
Alternative of the health support fund without legal entitlement
The Merchant therefore fulfils its insurance obligation through the coinsurance even if it has no legal claim itself. Of course, this also takes away any argument that a health support fund (UK) without a legal claim cannot be any other form of protection, because this would set stricter standards for it in this respect than for a private health insurance company that fulfils the insurance obligation. It does not yet constitute a legal claim to certain benefits that would be enforceable even if the Articles of Association impose on the Board of Directors a promise of the UK to use its best efforts to provide certain services, Deo volente nobis viventibus, sub conditione Jacobaea or insha’allaah.
by Dr. Johannes Fiala and Dipl.-Math, Peter A. Schramm
with friendly permission of www.experten.de (published on 15.04.2016)
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 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.
You are already receiving legal advice and would like a second opinion? In this case please contact Dr. Fiala directly via the following link.
The first telephone call about your request is free of charge.