– Men are entitled to a lower risk-adjusted contribution –
“HURRA!!! We’re still alive!” (Milva)
Just in time for the end of the Mayan calendar on 21 December 2012, the EU has banned the use of anything other than gender-uniform so-called unisex premiums for new insurance contracts from that date.
The starting point is the EU Equality Directive (No. 2004/113/EC) of 13 December 2004, which granted the national legislator a transitional period of five years. In its ruling of 01.03.2011, the European Court of Justice (Case C-236/09) decided that from 21.12.2012 insurance premiums may no longer be calculated differently according to gender. Different insurance benefits according to gender are also no longer permitted since this effective date.
Unfortunately, however, this requirement was not transposed into German law in time because the Bundestag did not approve the relevant article law due to the simultaneously envisaged far-reaching reduction of the participation in hidden reserves in life insurance and appealed to the Mediation Committee.
Although this means that the old law will remain in force nationally, insurers’ associations and the supervisory authority have unanimously declared that the unisex tariffs will be introduced on time,
because EU law would take precedence here. In doing so, however, they are ignoring binding German law.
This is because the Insurance Supervision Act (VAG), which is still in force, specifically stipulates in § 12 VAG, for example, that private health insurance with ageing provisions must be calculated in accordance with the provisions of the so-called Calculation Ordinance (KalV). Unfortunately, however, the amendments required there for the introduction of the extramural tariffs were not signed due to the lack of an authorisation basis. For example, it is still bindingly stipulated there – especially for the actuaries responsible for this in private health insurance – that claims and premiums are to be calculated separately for men and women. At least as far as ageing provisions are taken into account – for private comprehensive insurance this is absolutely mandatory.
If insurers already charge uniform premiums based on gender without a sufficient legal basis, they are therefore in breach of national law.
They argue that EU law would take precedence and therefore, as of 21 December – regardless of what the German legislator says – different contributions for men and women may no longer be used according to the EU. Otherwise, women could insist on paying the same premiums as men in private health insurance, for example, by invoking EU law, if different premiums were still calculated in accordance with national law. At a minimum, it would be a significant legal risk if policyholders were to sue for this equal treatment.
This may be true – but the fact that one is now forbidden does not mean that the other is now already allowed in Germany. If the German legislator has not created the conditions for uniform gender premiums for new contracts in good time, it simply follows that, in order to avoid a breach of EU requirements, no new contracts can be concluded at all in the first instance. Legal risks due to women suing for equal treatment with men or vice versa can therefore not even exist.
But one would rather violate German law – even the hope that the end of the world associated with the end of the Mayan calendar would prevent this has not been fulfilled. Unfortunately, this is precisely what is now leading to possible lawsuits by men with private health insurance as of December 21, 2012, who instead of paying the high unisex premiums simply want to pay their own risk-based calculated premiums in accordance with the provisions of the previous calculation ordinance still applicable to them. In doing so, they can refer to § 203 para. 1 of the Insurance Contract Act (VVG), which states:
“In the case of health insurance where the premium is calculated in the manner of life insurance, the insurer may only demand the premium to be calculated in accordance with the technical bases of calculation pursuant to sections 12, 12a and 12e in conjunction with section 12c of the Insurance Supervision Act.”
Thereafter, the Costing Ordinance will also be decisive not only in terms of supervisory law but also in terms of contract law. The Ministry of Finance is in principle authorised to issue these in the aforementioned Section 12c of the Insurance Supervision Act (VAG), but in the absence of a specific authorisation basis for unisex contributions as at 21 December 2012, it did not sign the necessary amendments to this KalV either.
From this date onwards, men who have private health insurance according to unisex contributions can therefore claim under sec. 203 para. 1 VVG also subsequently demand to be classified in their own contribution group according to favourable men’s contributions. They will then remain in this position for life, since the unisex contributions apply at best to new contracts.
This applies to all tariffs that are calculated “in the manner of life insurance”, i.e. with ageing provisions. In contrast, it has always been permissible to calculate on a gender-uniform basis according to the type of non-life insurance without ageing provision – the insurer does not even have to observe a calculation regulation for this.
It would not be the first time that the Federal Court of Justice later found that the joint assessment of supervisors, insurers and their associations was wrong. The Federal Court of Justice has already ruled that the amendments to ineffective acquisition cost clauses in the trustee proceedings, which were unanimously implemented by the insurance supervisory authorities, the insurance lobby and insurers as supposedly necessary and permissible, were in turn ineffective – resulting in billions of euros in possible additional claims from insurance customers.
After the PKV could not wait for the creation of the legal basis for EU-compliant unisex contributions, it now has to reckon with a large number of lawsuits from affected men. That they do not accept the dictates of the EU without complaint, the authors also conclude from their increasing demand for pension insurance in the Confederates, where people have rejected such foreign dictates since the Rütli oath. However, insurance intermediaries – agents or brokers – in Germany as well as Switzerland are not allowed to broker these tariffs to customers in Germany due to the lack of a licence – thanks to the EU, they are only left with the unfavourable unisex tariffs.
by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm
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About the author
Dr. Johannes FialaPhD, MBA, MM
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.
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