Gender is not allowed to determine PKV contributions

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The Advocate General of the European Court of Justice demands unisex tariffs for insurance. Gender cannot decide on contributions to private health insurance.

(06.10.2010) According to Juliane Kokott, Advocate General of the European Court of Justice (ECJ), gender-specific insurance premiums will no longer exist in the future. The common practice in health insurance and life insurance, for example, to levy the contribution based on gender, violates the prohibition of discrimination.

Equal treatment of men and women is fundamental Union law Equal treatment of men and women is one of the main legislative concerns at the level of the European Union. For example, Directive 2004/113 / EC, according to which men and women should have equal "access to and supply of goods and services", explicitly opposes unequal treatment and discrimination on grounds of gender. According to clear jurisprudence, this is also valid for insurance contracts that were newly concluded after December 21, 2007 and basically prohibits the consideration of the factor gender when calculating insurance premiums and benefits. However, certain insurance companies have so far been able to make an exception to the directive because different benefits and prices are permitted if “gender is a determining risk factor and this can be underpinned by relevant and accurate actuarial and statistical data,” said Juliane Kokott. According to the Advocate General, this exception, and in particular its current application, for example in health and life insurance, is not compatible with fundamental Union rights and is therefore unlawful.

There are no clear biological differences. The Belgian consumer association "Association Belge des Consommateurs Test-Achats" and two private individuals have brought an action before the Belgian Constitutional Court against the exceptions to Directive 2004/113. The Belgian Constitutional Court has now appealed to the EU judges assess the compatibility of the contested exceptions with the Union law principle of equal treatment for men and women. Juliane Kokott wrote the legal opinion now submitted as part of the procedure (Az: C-236/09) and comes to the conclusion that only "clearly demonstrable biological differences between the sexes" could justify unequal treatment. This is the case, for example, in pregnancy, but not in the statistically longer life expectancy of women. Because the life expectancy of the insured is more dependent on other factors such as the social environment, nutrition, consumption of luxury foods or drugs, stress at work and in everyday life, leisure activities etc. than on gender.

Introduction of "unisex tariff" required In her opinion before the European Court of Justice, the Advocate General emphasized the importance of equal treatment for men and women and stated that gender, as well as race and ethnic origin, "are inextricably linked to the person insured" is. For example, gender cannot be viewed separately from the person of an insured person when designing insurance products. In addition, the current exemptions have led to fundamentally different treatment of male and female insured. The Advocate General believes that men and women often still pay different premiums for life, pension, health and car insurance, and is therefore calling for the abolition of the exemptions and the introduction of a "unisex tariff" for insurance companies .

Insurance against cancellation of the exemptions The proposal of the Advocate General Juliane Kokott to abolish the exemptions and the calculations based on them and to replace them with a generally equal contribution for both genders is causing nervousness in insurance circles. Because with the “unisex tariffs”, where the gender should not appear in the calculations, all their complicated gender-specific insurance models would completely tip over and an increase in the average premium level would be very likely. The Association of the German Insurance Industry (GDV) currently hopes that the Advocate General will not prevail with her argument.

Transitional rule of three years planned In order not to jeopardize the legal certainty of current insurance contracts, the Advocate General suggests to the ECJ that the exceptions to Directive 2004/113 / EC should be deleted, but this invalidation only applies to future insurance contracts. Juliane Kokott also suggests that insurance companies be given a transition period of three years after the ECJ pronounced the judgment. The court's ruling is expected next year, with the judges not being bound by the Advocate General's proposals, but have mostly followed them in the past. (fp)

Also read:
Private health insurance: is it worth changing?
Save on private health insurance
PKV: Services and quality a reason for changing?
Federal government: Billions package for the PKV
PKV change does not always make sense

Image: Margot Kessler /

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