Gender may not determine PKV contributions

The Advocate General of the European Court of Justice calls for unisex insurance rates. Gender may not decide on contributions to the private health insurance.

(06.10.2010) Gender-specific insurance premiums will no longer exist according to the ideas of Juliane Kokott, Advocate General of the European Court of Justice (ECJ). For example, the usual practice in health insurance and life insurance to make the contribution dependent on gender violates the prohibition of discrimination.

Equal treatment of men and women is fundamental to the Union
Equal treatment of men and women is one of the main legislative concerns at European Union level. For example, Directive 2004/113 / EC, which equates to men and women, is already in issue „Access to and supply of goods and services “ should have explicitly against the unequal treatment and discrimination based on gender. According to clear case law, it is also valid for insurance contracts newly concluded after 21 December 2007 and, in principle, prohibits the consideration of the gender factor in the calculation of insurance premiums and benefits. However, certain insurance companies have so far been able to invoke a derogation from the Directive, since different benefits and prices are allowed if “Gender is a determining risk factor and this can be substantiated by relevant and accurate actuarial and statistical data“, explained Juliane Kokott. This derogation, and in particular its current application in, for example, health and life insurance, is incompatible with EU fundamental rights and therefore unlawful, according to the Advocate General.

Clear demonstrable biological differences are not given
The Belgian consumer association „Association Belge of the Consommateurs Test-Achats“ and two private individuals have brought an action before the Belgian Constitutional Court against the derogation from Directive 2004/113, the Belgian Constitutional Court has now turned to EU judges to assess the compatibility of the alleged exceptions with the EU law principle of equal treatment for men and women. Juliane Kokott, in the context of the case (Az: C-236/09), has drafted the legal opinion she has just presented and concludes that it is exclusively „clearly demonstrable biological differences between the sexes“ could justify a difference in treatment. This is, for example, given in pregnancies, but by no means statistically longer life expectancy of women. Because the life expectancy of the insured is more dependent on other factors such as the social environment, the diet, the consumption of stimulants or drugs, the stress at work and in everyday life, leisure activities, etc. than by gender.

Introduction of „Unisex tariff“ required
In her Opinion to the European Court of Justice, the Advocate General emphasized the importance of equal treatment for men and women and explained that gender, as well as race and ethnic origin „Inseparably connected with the person of the insured“ is. Thus, even in the design of insurance products, gender can not be considered detached from the person of an insured person. In addition, the standard exemptions have led to a fundamentally different treatment of male and female insured persons. The fact that men and women often still pay different premiums for life, pensions, health and motor insurance is in the view of the Advocate General unreasonable and therefore calls for the abolition of derogations and the introduction of a „Unisex Tariff“ at the insurance companies.

Insurance against deletion of exemptions
The intention of the Advocate General Juliane Kokott to abolish the exemptions and calculations based on them, and to replace them with a generally equal contribution for both sexes, causes nervousness in insurance circles. Because with the “Unisex rates”, If gender is not included in the calculations, all of their complicated gender-based insurance models would completely collapse and a rise in the average premium level would be very likely. The General Association of the German Insurance Industry (GDV) currently hopes that the Advocate General will not prevail with her arguments.

Transitional plan of three years planned
In order not to jeopardize the legal certainty of current insurance contracts, the Advocate General proposes that the ECJ should delete the derogations from Directive 2004/113 / EC, but only refer this declaration of invalidity to future insurance contracts. In addition, Juliane Kokott proposes to grant the insurance companies a transitional period of three years after the ECJ has handed down the judgment. The court's ruling is expected to come next year, with the judges not being bound by the Advocate General's proposals, but mostly following them in the past. (Fp)

Also read:
Private health insurance: Worth a change?
Save on private health insurance
PKV: services and quality a change reason?
Federal Government: billions for the PKV
PKV change does not always make sense

Picture: Margot Kessler