ECJ health insurance companies bound by competition rules

Unfair commercial practices and misleading advertising are prohibited even for health insurances

04/10/2013

In a recent decision, the European Court of Justice (ECJ) has made it clear that statutory health insurance funds, like traditional businesses, must also comply with the competition rules. The case concerned an infringement by BKK Mobil Oil of the prohibition of unfair commercial practices, in which the Federal Court of Justice had asked for clarification as to whether statutory health insurances acting as public corporations fulfill their duties within the meaning of the EU Directive „Companies“ to be treated. This has now been confirmed by the ECJ.

In 2008, BKK Mobil Oil turned to its website with the statement to the insured that „who leaves the BKK ... now, to the [new statutory health insurance] for the next 18 months“ bind and possibly have to count on it at the end, „if your new fund does not manage with the money allocated to it and therefore charges an additional fee.“ The Center for Combating Unfair Competition e. V. saw this as a significant misleading of consumers and thus a violation of the EU Directive on Unfair Commercial Practices and national competition law. The Wettbewerbszentrale therefore warned BKK Mobil Oil by letter of 17 December 2008 „and asked them to file a cease and desist order and to reimburse pre-trial costs“, reports the ECJ.

Misleading advertising statement of the health insurance
The Wettbewerbszentrale evaluated the statement of the BKK Mobil Oil as misleading, since the health insurance „conceal the fact that the policyholder is entitled to a special statutory right of termination in the case of an additional contribution under German law.“ Although the BKK Mobil Oil removed the statements in question immediately after the warning from their website and acknowledged that they had discontinued incorrect information, which should no longer be advertised in the future. But the health insurance company denied to the Wettbewerbszentrale the submission of a punitive cease and desist order and the assumption of pre-trial costs. Although the Federal Court of Justice acknowledged the substantive allegation of the Wettbewerbszentrale, it was still unclear, „whether the Unfair Commercial Practices Directive should be interpreted as meaning that an economic operator such as BKK, which, as a public-law body, performs the tasks of statutory health insurance, distributes the offending statements as Companies acted.“ It may be argued that such a body does not pursue an economic activity but pursues a purely social purpose. Therefore, the ECJ should clarify to what extent the directive also applies to the statutory health insurance funds.

Even statutory health insurance companies are bound by the competition rules
The ECJ has now confirmed with its decision that the statutory health insurance companies are also covered by the Unfair Commercial Practices Directive when they make public their claims with corresponding advertising statements. If public health insurance companies published commercial advertisements, the health insurances would have to be treated like normal traders - and should not deceive consumers, the ECJ confirmed the position of a previously obtained legal opinion. „The Directive seeks to ensure a high level of consumer protection against unfair commercial practices and misleading advertising. Therefore, it must apply regardless of the public or private nature of a company“, according to the communication of the ECJ. (Fp)

Image: Claudia Hautumm