Federal Constitutional Court - Press office -
Press release no. 78/2009 of 14 June 2009
Order of 10 June 2009 – 1 BvR 825/08 and 1 BvR 831/08 –
No obligation for small private mutual insurance associations
to contract with non-members in the basic category
In a judgment of 10 June 2009, (1 BvR 706/08 - 1 BvR 814/08 - 1 BvR
819/08 -1 BvR 832/08 and 1 BvR 837/08; on this, see press release of 10
June 2009), the First Senate of the Federal Constitutional Court decided
that the provisions of the GKV-WSG and the VVG-ReformG, challenged by
the private insurance companies, are in principle compatible with the
constitution. In addition, constitutional complaints by two small mutual
insurance associations which solely insure one occupational group
(priests) were pending. These were dismissed as inadmissible by the
First Senate on the understanding that the obligation to enter into
contracts for the basic category created by the 2007 health reform
encroaches on the freedom of association (Article 9.1 of the Basic Law
(Grundgesetz GG)) of these small mutual insurance associations and
therefore such an obligation exists only towards applicants for
insurance who satisfy the association’s membership requirements as
stated in its articles of association.
The complainants are small mutual insurance associations which offer
their members comprehensive health insurance and specific supplementary
policies. They have an obligation only to enter into their insurance
contracts with persons who are members. They are prohibited by law from
entering into insurance transactions without membership, which the large
mutual insurance associations are permitted to enter into. The complaint
of the two complainants challenges the new provisions of the Act to
Strengthen Competition in Statutory Health Insurance (Gesetz zur
Stärkung des Wettbewerbs in der gesetzlichen Krankenversicherung –
GKV-WSG) of 26 March 2007 and the Act for the Reform of Private
Insurance Law (Gesetz zur Reform des Versicherungsvertragsrechts –
VVG-ReformG) of 23 November 2007. Above all, they criticised the fact
that, for them, the provisions on the obligation to enter into contracts
in the basic category constituted a de facto prohibition of an insurance
provided solely for one profession. They also saw the absolute
prohibition of termination of all comprehensive health insurance
policies as an infringement of their freedom of association.
The decision is essentially based on the following considerations:
§ 193.5 sentence 1 of the Insurance Contract Act (Gesetz über den
Versicherungsvertrag – VVG) and § 12.1b sentence 1 of the Insurance
Supervision Act (Versicherungsaufsichtsgesetz – VAG) are to be
interpreted, in conformity with the GG, to the effect that an insurer is
only obliged to accept an applicant in the basic category if the
applicant belongs to the group of members of the relevant small
insurance association as defined in its articles of association.
Unlike in the case of the big private health insurance companies, the
duty to give insurance cover in the basic category is an encroachment
upon the right to freedom of association (Article 9.1 GG) of small
insurance associations, which in contrast to the large mutual insurance
associations may only transact members’ business, but no non-member
contract business. However, an interpretation in conformity with the GG
in the light of this fundamental right shows that the obligation to
enter into contracts in the basic category does not apply in full to
small mutual insurance associations, and therefore in effect there is no
infringement of the freedom of association.
In accordance with their intended purpose, the sphere of activity of the
small insurance associations is restricted objectively, locally or with
regard to persons accepted. The significance of the element of the
persons accepted by a small insurance association is particularly
apparent in the case of the complainants, who insure exclusively one
professional group, united in occupation and belief. In this case, it is
often not solely the business aspect that will determine the decision as
to membership, but also the specific idea of the solidarity of a
particular community of policyholders.
The provisions on the obligation to enter into contracts encroach upon
the freedom of association because the small mutual insurance
associations are no longer free to decide on the acceptance of new
members solely on the basis of their articles of association, but must
also accept as members persons who satisfy the requirements of § 193.5
sentence 1 VVG. The obligation to enter into contracts in the basic
category would force the complainants, although their organisation is
structured on the basis of the persons who are its members, to accept as
members persons who do not have any relationship to the group of persons
previously insured. But the legislative aim of the GKV-WSG of ensuring
that all persons allocated to private health insurance have adequate
insurance cover is already fulfilled by the big mutual insurance
associations and joint-stock companies, which almost completely cover
the market. Nor is it necessary to take a different view because the
complainants would obtain an unjustified competitive advantage. For they
participate in the balance of risks under § 12 g VAG in the same way as
the large companies. Since a small insurance association can be licensed
only if strict requirements are met, no incentive to found small
insurance associations is created by the need to avoid the obligation to
enter into contracts in the basic category.
Insofar as the absolute prohibition of termination of § 206.1 sentence 1
of the VVG that applies to all substitutive comprehensive health
insurance policies is challenged, the provision does encroach upon the
area of protection of freedom of association (Article 9.1 GG), but for
reasons of public welfare this encroachment is justified. The
prohibition of termination fulfils the legitimate purpose of preventing
the loss of insurance cover and thus guaranteeing that private health
insurance policies function in full for the group of persons allocated
to them and preventing the loss of the ageing reserve associated with
the termination of the insurance contract. In this case, the Senate was
able to leave undecided the question as to whether it may for
constitutional reasons be necessary in exceptional cases to permit a
deviation from the absolute prohibition of termination.
This press release is also available in the original german version.
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