ECJ: Health insurance companies bound by competition rules

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Unfair commercial practices and misleading advertising are also prohibited for health insurance companies

In a recent decision, the European Court of Justice (ECJ) made it clear that statutory health insurers - like traditional traders - must also abide by the competition rules. The proceedings concerned a breach by BKK Mobil Oil of the prohibition of unfair business practices, whereby the Federal Court of Justice had asked for clarification as to whether statutory health insurance companies that perform their duties as a body under public law are also considered to be within the meaning of the EU directive "Companies" are to be treated. This has now been confirmed by the ECJ.

In 2008, BKK Mobil Oil contacted the insured on its website that "whoever is going to leave the BKK ... is now bound to the [new statutory health insurance] for the next 18 months" and may have to pay more in the end , "If your new fund does not get along with the money allotted to it and therefore makes an additional contribution." The headquarters for combating unfair competition e. V. saw this as clearly misleading consumers and thus a violation of the EU directive on unfair business practices and national competition law. The competition center therefore warned BKK Mobil Oil by letter dated December 17, 2008 "and asked them to file a declaration of injunctive relief and reimbursement of pre-judicial costs," reports the CJEU.

Misleading advertising statement by the health insurance company
The competition center rated the statement by BKK Mobil Oil as misleading, since the health insurance company "concealed the fact that the policyholder was entitled to a special statutory right of termination in the event of an additional premium being charged." BKK Mobil Oil removed the statements in question immediately after receiving the warning their website and admitted that they had incorrect information that should no longer be used for advertising in the future. However, the health insurance company refused to provide the competition center with a punitive injunction and the assumption of the pre-judicial costs. The Federal Court of Justice saw the substantive allegation of the competition center confirmed, but it is unclear "whether the directive on unfair business practices should be interpreted as meaning that an economic operator like the BKK, which as a corporation under public law fulfills the tasks of statutory health insurance, in the dissemination of disputed statements as Companies acted. ”It could possibly be argued here that such an institution did not carry out any economic activity but pursued a purely social purpose. The ECJ should therefore clarify to what extent the directive also applies to statutory health insurance funds.

Statutory health insurance companies are also bound by the competition rules
With its decision, the ECJ now confirmed that statutory health insurers also fall under the Unfair Commercial Practices Directive if they go public with appropriate advertising statements. If statutory health insurance companies published commercial advertisements, the health insurance companies would have to be treated like normal traders - and should not deceive consumers, the ECJ confirmed the position of a legal opinion that had already been obtained. “The directive wants a high level of protection for consumers against unfair commercial practices and misleading advertising. Therefore, it must apply regardless of the public or private nature of a company, ”said the ECJ. (fp)

Image: Claudia Hautumm /

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