Headnotes

to the judgment of the First Senate of 10 June 2009

- 1 BvR 706/08 -

- 1 BvR 814/08 -

- 1 BvR 819/08 -

- 1 BvR 832/08 -

- 1 BvR 837/08 -

1. The introduction of the basic rate in the 2007 health reform, to ensure lifelong comprehensive cover of persons insured by private health insurance, is constitutional.

2. In order to make it easier to change insurer and to improve competition in private health insurance, the legislature was entitled to provide for partial portability of ageing reserves.

3. Compulsory insurance in statutory health insurance may be extended to three years in which the annual earnings limit is exceeded.

4. The legislature has a duty to observe the consequences of the reform for the insurance undertakings and their insured.

FEDERAL CONSTITUTIONAL COURT

– 1 BvR 706/08 –

– 1 BvR 814/08 –

– 1 BvR 819/08 –

– 1 BvR 832/08 –

– 1 BvR 837/08 –

IN THE NAME OF THE PEOPLE

In the proceedings
on
the constitutional complaints

– 1 BvR 706/08 –,

– 1 BvR 837/08 –,

– 1 BvR 814/08 –,

– 1 BvR 832/08 –,

– 1 BvR 819/08 –,

the Federal Constitutional Court – First Senate –

with the participation of Justices

President Papier,

Hohmann-Dennhardt,

Bryde,

Gaier,

Eichberger,

Schluckebier,

Kirchhof,

Masing

held on the basis of the oral hearing of 10 December 2008:

Judgment:

1. The constitutional complaints are rejected as unfounded.

Reasons:

A.

The subject of the proceedings, which have been consolidated to be heard and decided jointly, is the question as to whether provisions of the Act to Strengthen Competition in Statutory Health Insurance (Gesetz zur Stärkung des Wettbewerbs in der gesetzlichen Krankenversicherung – GKV-Wettbewerbsstärkungsgesetz – GKV-WSG) of 26 March 2007 and Act for the Reform of Private Insurance Law (Gesetz zur Reform des Versicherungsvertragsrechts – VVG-ReformG) of 23 November 2007 are compatible with the Basic Law (Grundgesetz – GG).

I.

In Germany, approximately 71 million people are insured under statutory health insurance, approximately 65 of them compulsorily insured and approximately 6 million of them voluntarily insured. Approximately 8.4 million people are insured under private health insurance, including about 4.5 million civil servants in rates designed for civil servants who receive a government subsidy for health care charges (Beihilfe ). In addition, there are a small number of persons in Germany, estimated at 200,000, who have no health insurance.

1. a) The system of statutory health insurance is based on the statutory health insurance funds as self-governing corporate bodies under public law. Statutory health insurance is primarily financed by contributions from its insured and their employers. The amount of the contributions, up to the income limit for contributions assessment, is based on the amount of the insured’s pay from employment. Family members with no significant income of their own are co-insured free of charge. Persons dependent on social security benefits also receive insurance cover without making contributions. Persons who satisfy the requirements, laid down by law, of compulsory statutory insurance are covered by insurance, regardless of whether they have pre-existing conditions or pay contributions. The law does not provide for termination of or exclusion from statutory health insurance. The persons voluntarily insured under statutory health insurance are in principle subject to the same conditions as compulsory members.

b) The majority of those insured under statutory health insurance, employed persons, are by operation of law subject to compulsory insurance. Specific occupational groups are exempted from this, for example, under § 6.1 no. 2 of the Fifth Book of the Code of Social Law (Sozialgesetzbuch V – SGB V) – Statutory Health Insurance, civil servants, judges and soldiers who have a claim to a government subsidy for health care charges or to medical care, and under § 6.1 no. 1 SGB V wage earners and salary earners whose regular annual pay exceeds a specific amount. Previously, for wage earners and salary earners to be exempted from compulsory insurance, it was sufficient for their regular pay to exceed this amount in one year, but under the amendment of the provision by the Act to Strengthen Competition in Statutory Health Insurance challenged in these proceedings it must now, since 2 February 2007, exceed the annual earnings limit in three consecutive calendar years. Only then is the insured exempted from compulsory insurance. The aim of the reform is to ensure that even salary earners with high earnings are committed to statutory health insurance for at least three years, in order in this way to strengthen the financial basis of statutory health insurance.

2. In contrast, civil servants, self-employed persons and other persons not compulsorily insured are insured under private health insurance irrespective of the amount of their income, as are persons who by reason of the amount of their earnings are no longer compulsorily insured in statutory health insurance and do not remain there as voluntarily insured persons, but move to private health insurance. The private health insurance undertakings offer comprehensive health insurance policies with a varying range of benefits; this insurance generally provides a higher and more comprehensive level of cover than the benefits of statutory health insurance. In addition, they offer a number of supplementary insurance policies, which are also for persons insured under statutory health insurance. They calculate their insurance premiums, unlike statutory health insurance, on the basis of the individual risk of the respective insured person; the aged of the insured on first taking private health insurance also plays a role.

a) Under previous law, the private insurance undertakings could decide themselves whether to enter into an insurance contract, and if they found an applicant’s risk of illness too great they could refuse to enter into a contract or agree with the applicant on appropriate risk loading or an exclusion of benefits (e.g. for particular illnesses). But if a health insurance contract had been entered into and it was capable of taking the place in whole or in part of the health insurance cover provided in the statutory social insurance system (known as substitutive health insurance), even in the past it was provided by law that both an increase of premium and termination by notice by the insurer on the basis of a subsequent increase in the individual risk of illness of the insured was excluded. It remains the case that an increase of premium is permitted only in circumstances that extend beyond the individual insured, for example if there is a change in the average expectation or life, or in the case of substantial increases in expenses within a rate that have previously not been calculated. Increases of premium are also possible if there are changes of circumstances in the health care system that are not merely temporary. In the calculation of the premium, the insurance undertakings are subject to the rules of the Ordinance of the Actuarial Methods of Premium Calculation and of Calculation of Ageing Reserves in Private Health Insurance (Verordnung über die versicherungsmathematischen Methoden zur Prämienkalkulation und zur Berechnung der Alterungsrückstellung in der privaten Krankenversicherung – Kalkulationsverordnung – KalV – Calculation Ordinance), which contains provisions for the calculation of adequate premiums, taking account of sufficient collateral security.

b) Under statutory provisions, the private health insurance undertakings have a duty to form ageing reserves in substitutive health insurance. For this purpose, at the very beginning of the insurance relationship the insurance premium is calculated on the basis that a specific part of it is not used to cover current illness costs, but instead paid into an interest-bearing reserve account in order later to cover the age-related increased expenses of the relevant insured person. Under the Insurance Supervision Act (Gesetz über die Beaufsichtigung der Versicherungsunternehmen – Versicherungsaufsichtsgesetz – VAG), these ageing reserves are governed by specific protective provisions, in order to guarantee that they are applied as intended.

The insurance contracts entered into by the private health insurance undertakings in the past provided that if the insured terminated an insurance contract, there was no claim to the payment of the calculated individual ageing reserve or to the transfer of this reserve to a new insurer. If the insured discontinued private insurance – for example by moving to another undertaking or because he or she became subject to compulsory insurance in statutory health insurance – the ageing reserves created for him or her accrued to the community of policyholders (this was known as “succession”). This “succession” as a result of persons moving from an insurance undertaking while leaving behind the accrued and retained capital is already taken into account by the insurance undertakings, as what is known as the “lapse rate”, when the first premium is calculated, and it results in a lower premium. However, this “succession” has the consequence for the insured that from a certain age they can move to a different insurance undertaking only with substantial disadvantages. The greater the age of an insured at entry, the higher is his or her insurance premium in the new insurance undertaking, because the latter has not yet been able to compensate for the insured’s risk of illness, which rises with age, by ageing reserves. The longer the insurance relationship lasts and the older the insured becomes, therefore, the more unattractive a change of insurance undertaking becomes, and in practice it occurs only in exceptional cases.

c) In the past, this effect has repeatedly been cited as an impediment to insured persons’ freedom of choice and thus also a restraint on the competition between private health insurance undertakings. For this reason, the legislature provided that when an insurance relationship continues, the insured may require the insurer to accept applications to move to other rates with the same insurance cover while taking account of the rights acquired in the original rate and the ageing reserve. In this way, ageing reserves have become portable when insured change their rate within one insurance undertaking, in order that above all older insured persons have a claim to reclassification if their rate is closed for new entrants and therefore runs the risk of ageing.

In addition, with effect from 1 July 1994, § 257.2a to 2c SGB V added provisions on what is known as the standard rate. Under § 257.2 SGB V, particular employees who are not subject to compulsory insurance or who are exempted from compulsory insurance have a claim against their employer for a subsidy towards their contribution to their private health insurance undertaking. However, this subsidy was only paid if the private health insurance undertaking offered a standard rate that was uniform throughout the industry and whose benefits in the case of illness were comparable to the level of statutory health insurance and whose premium was limited to the average maximum contribution to statutory health insurance.

Only a limited group of persons had to be admitted to the standard rate. These were in particular older insured who had been insured under private health insurance for a long time, and specific persons with pre-existing conditions who were entitled to a government subsidy for health care charges. The standard rate was never very important; in 2006, the Verband der privaten Krankenversicherung e.V. announced that in the whole Federal Republic of Germany, only approximately 24,800 persons were insured in the standard rate.

d) In recent decades, the premiums in private health insurance have increased steeply. The average annual increase in premiums in the past thirteen years was 5 per cent, and it was therefore higher than the rate of increase in statutory health insurance. It is thought that the reasons for this are the general above-average development of prices in the health care system, but also calculation assumptions, some of which were unrealistic, made by the insurance undertakings in the past, for example in the mortality tables used as a basis. In order to reduce the burden of costs in old age, in the year 1994 the insurance undertakings were required to credit most of what is known as excess interest (the difference between guaranteed minimum interest and actual interest) on the investment of the ageing reserves to the insured persons and to use it to reduce the premium in their old age. Since the year 2000, legislation has also provided for charging a ten-per-cent additional premium, which is to be added to the ageing reserve and used to reduce the premium in old age.

II.

1. The Act to Strengthen Competition in Statutory Health Insurance of 26 March 2007 maintains the bipartite health insurance system of statutory and private health insurance, but it introduces substantial reforms from 1 January 2009. It makes statutory or private health insurance compulsory for all inhabitants of Germany. In addition to a number of new provisions, which are intended to strengthen competition by giving the health insurance funds greater freedom of contract, the Act aims to improve rights of choice and possibilities to change insurer in private health insurance by making it possible for some of the ageing reserve to be transferred to another health insurance fund and by introducing a basic rate. Statutory and private health insurance are each, as separate pillars, to ensure that the rates of persons allocated to them have permanent and adequate insurance cover against the risk of illness, even in situations of social need. For this purpose, amendments are made both to provisions of the Fifth Book of the Code of Social Law and to a large number of provisions of the Insurance Contract Act (Versicherungsvertragsgesetz – VVG) and the Insurance Supervision Act, and also to the Calculation Ordinance. As a result of the Act for the Reform of Private Insurance Law of 23 November 2007, the provisions of insurance contract law amended by the Act to Strengthen Competition in Statutory Health Insurance were incorporated in the Insurance Contract Act in force from 1 January 2009, unaltered in content, but renumbered.

2. Since 1 January 2009, all those persons who neither have statutory health insurance nor are covered by another insurance system are under an obligation to take out and maintain medical expenses insurance with a private health insurance undertaking (§ 193.3 VVG). Every termination by the insurer of a medical expenses insurance policy where the policy satisfies the obligation under § 193.3 sentence 1 VVG (that is, to take out substitutive medical expenses insurance) is excluded (§ 206.1 sentence 1 VVG).

3. § 12.1a VAG provides that, from 1 January 2009, insurance undertakings with their seat in Germany which provide substitutive health insurance must offer a basic rate, uniform throughout the industry, whose contractual benefits are all comparable in nature, extent and degree to those of statutory health insurance. The basic rate must contain versions for children and young persons and for persons with a claim to a government subsidy for health care charges and their relatives who are eligible for coverage. The insured persons must be granted a number of deductible levels.

Under § 12.1b VAG, the private health insurance undertakings have an obligation to contract in the basic rate. In insurance contract law, this is reflected in § 193.5 VVG, which creates a claim under private law to enter into a contract in the basic rate. The provision reads as follows:

“The insurer shall have an obligation to grant insurance in the basic rate under § 12.1a VAG to

1. all persons voluntarily insured in statutory health insurance

a) within six months after the introduction of the basic rate,

b) within six months after the beginning of the possibility of changing their rate within their voluntary insurance relationship, provided in the Fifth Book of the Code of Social Law,

2. all persons with their residence in Germany who are not compulsorily insured under statutory health insurance, do not belong to the group of persons under number 1 or subsection 3 sentence 2 nos. 3 and 4 and do not already have a medical expenses insurance policy with an insurance undertaking admitted to operate in Germany which satisfies the duty under subsection 3,

3. persons who have a claim to a government subsidy for health care charges or have comparable claims, insofar as they need additional insurance cover to perform the obligation under subsection 3 sentence 1,

4. all persons with their residence in Germany who have taken out a private medical expenses insurance policy in the meaning of subsection 3 with an insurance undertaking admitted to operate in Germany and whose contract is entered into after 31 December 2008

…”

If the private medical expenses insurance contract was entered into before 1 January 2009, then in the case of a change or termination of the contract, under § 204.1 VVG the insured has a claim to entry into a contract in the basic rate with his or her own or another insurance undertaking, transferring the ageing reserves to the new undertaking, only until 30 June 2009 (§ 12.1b sentence 2 VAG).

If an insured applies to join the basic rate, the application may only be refused if the applicant was already insured by the insurer and the insurer

1. challenged the insurance contract for threat or deception or

2. rescinded the insurance contract on the grounds of an intentional infringement of the pre-contractual duty of disclosure (§ 12.1b sentence 4 VAG, § 193.5 sentence 4 VVG).

The contribution for the basic rate without deductible and at all deductible levels may not exceed the maximum contribution for statutory health insurance (§ 12.1c sentence 1 VAG). For persons with a claim to a government subsidy for health care charges under civil service law, the maximum contribution of statutory health insurance is replaced by a maximum contribution corresponding to the proportion of their entitlement to insurance benefits that supplements the government subsidy for health-care charges (§ 12.1c sentence 3 VAG). The maximum contribution is reduced by half if the payment of the contribution alone would result in neediness within the meaning of the Second or the Twelfth Book of the Code of Social Law (§ 12.1c sentence 4 VAG). If the insured is still needy when the contribution is reduced, then on the application of the insured the responsible institution is to contribute to the necessary extent, insofar as this prevents neediness (§ 12.1c sentence 5 VAG). If neediness under the Second or Twelfth Book of the Code of Social Law exists irrespective of the amount of the contribution payable, sentence 4 shall apply with the necessary modifications; the responsible institution shall pay the same amount as it has to bear for a recipient of unemployment benefit II in statutory health insurance (§ 12.1c sentence 6 VAG).

The association Verband der privaten Krankenversicherung is granted the right to determine the nature, extent and degree of benefits in the basic rate in accordance with the provisions in § 12.1a VAG. The Federal Ministry of Finance is responsible for supervisory control (§ 12.1d VAG).

The contributions for the basic rate, without the costs of the insurance undertaking, are established as a uniform rate for all undertakings involved, using a common basis of calculation (§ 12.4b VAG).

In the basic rate, agreeing risk loading and exclusion of benefits is not permitted (§ 203.1 sentence 2 VVG).

Under § 12g.1 VAG, all insurance undertakings that offer a basic rate must, in order that the obligations under the insurance policies can be performed in the long term, participate in the balancing of the insurance risks in the basic rate, and for this purpose they must create and maintain an equalisation pool, to which they belong. The equalisation pool must guarantee a long-term and effective equalisation of the various burdens. Additional expenses incurred in the basic rate as a result of pre-existing conditions must be distributed equally between all persons insured in the basic rate; additional expenses that are incurred in order to guarantee the contribution limits set out in § 12.1c VAG are to be apportioned between all insurance undertakings involved in such a way that these undertakings are uniformly burdened.

Thus, the additional expenses for pre-existing rates are borne only by those insured in the basic rate. In contrast, the additional expenses arising from the limits on contributions are ultimately, if necessary, also apportioned to the persons insured in the other substitutive rates of private health insurance, since under § 8.1 no. 6 of the Calculation Ordinance the expenses for apportioning the limitation of the contribution amount in the basic rate are taken into account in the calculation of these rates.

4. The provisions on the basic rate are supplemented by § 315 SGB V. This provision defines the former standard rate from 1 July 2007 in a similar way to the basic rate. Persons who were neither insured in statutory health insurance nor compulsorily insured and who also had no other insurance cover were entitled until 31 December 2008 to require insurance cover in the standard rate. Under § 315.4 SGB V, these contracts were converted to the basic rate from 1 January 2009.

If the insured under a substitutive medical expenses insurance policy is in arrears in the amount of part of the premium for two months, § 206.1 sentence 1 VVG provides that the insurer may not terminate the insurance contract, but if the requirements set out in more detail in § 193.6 VVG (in particular a prior demand for payment) are satisfied, the insured’s entitlement to benefits is then suspended. The suspension ends when the proportion of the contribution in arrears that relates to the period of suspension has been paid or when the insured becomes needy within the meaning of the Second or Twelfth Book of the Code of Social Law. During the period of suspension, the insurer continues to be liable, but solely for expenses that are necessary to treat acute illnesses and pain and in the case of pregnancy and motherhood. If the proportion of contributions in arrears, penalties on arrears and costs of collection are not paid in full within one year after the beginning of the suspension, the insurance is continued in the basic rate.

5. Another important element of the Act to Strengthen Competition in Statutory Health Insurance is the introduction of portability of ageing reserves from 1 January 2009.

In the case of a continuing insurance relationship, the insured may require the insurer to accept applications to change to the basic rate while crediting the rights acquired under the contract and the ageing reserve. Under § 204.1 sentence 1 no. 1 letter a VVG, this applies without restriction to medical expenses insurance policies which are taken out after 1 January 2009 (new contracts). In the case of old contracts which were taken out before 1 January 2009, it is possible to change if the insured has reached the age of fifty-five, is entitled to a pension or retirement pay or if there is neediness under the Second or Twelfth Book of the Code of Social Law. In addition, restricted to the first six months of 2009, existing insured persons are granted a general right to change to the basic rate of their insurance undertaking.

In addition, ageing reserves are also portable to some extent in the case of a change of insurance undertaking. § 204.1 sentence 1 no. 2 VVG provides that the insured may take the transfer value calculated under § 13.1 of the Calculation Ordinance – that is, a specific sum of money – to the new insurer. This transfer value is limited to the ageing reserve that would have been created if the insured had been insured in the basic rate from the beginning. This provision applies without restriction to contracts that were newly entered into after 1 January 2009. Insured persons who entered into their contract before 1 January 2009 are given this possibility in the first six months of 2009. Insofar as the benefits in the rate from which the insured wishes to change are greater or more comprehensive than in the basic rate, the insured may require the previous insurer to agree a supplementary rate in which the ageing reserve that exceeds the basic rate is to be taken into account (§ 204.1 sentence 2 VVG).

The Act for the Further Development of the Organisational Structures in Statutory Health Insurance (Gesetz zur Weiterentwicklung der Organisationsstrukturen in der gesetzlichen Krankenversicherung ) of 15 December 2008 (Federal Law Gazette I p. 2426) empowers the Federal Ministry of Finance to pass delegated legislation for health insurance operated in the manner of life insurance containing more detailed provisions on the change to the basic rate under § 12.1b VAG and on a subsequent change from the basic rate. With effect from 1 January 2009, on this basis, it is laid down in § 13.1a of the Calculation Ordinance that for persons already insured in private health insurance who under § 204.1 no. 2 letter b VVG change to the basic rate of another insurance undertaking in the first six months of 2009 and later move to another full health insurance rate in the new undertaking, the ageing reserve they have taken with them can only be taken into account after a qualifying period of eighteen months has ended.

6. The Act to Strengthen Competition in Statutory Health Insurance also results in substantial changes in the law of statutory health insurance from 1 January 2009.

a) § 53 SGB V as amended by the Act to Strengthen Competition in Statutory Health Insurance provides for the increased introduction of elective rates in statutory health insurance. Under § 53.1 SGB V, the health insurance fund may provide in its articles of association that insured persons may assume part of the costs to be borne by the health insurance fund for one calendar year at a time (deductible). Under § 53.2 SGB V, the health insurance fund may provide in its articles of association that insured persons who have been insured for more than three months in a calendar year shall receive a bonus payment if they and their co-insured family members do not claim any benefits from the health insurance fund in that calendar year. Under § 53.3 SGB V, the health insurance fund must provide in its articles of association that insured persons who participate in special forms of care under § 63, § 73b, § 73c, § 137f or § 140a SGB V are offered special rates; the health insurance fund may provide for a bonus payment or a reduction in additional contribution for these insured.

In addition, the health insurance fund may provide in its articles of association that insured persons may choose for themselves and their co-insured family members rates providing for reimbursement of costs instead of non-cash benefits. It can vary the amount of reimbursement and provide for special premium payments by the insured for this purpose (§ 53.4 SGB V). In its articles of association, the health insurance fund may also make provisions on assuming the costs of pharmaceutical products of the special forms of therapy which under § 34.1 sentence 1 SGB V are excluded from the benefits, and may provide for special premiums to be paid by the insured persons for this (§ 53.5 SGB V). Finally, in its articles of association, the health insurance fund must offer rates with extended sickness benefit for particular groups of insured persons; for this purpose, it must provide for premium payments by the insured person corresponding to the increase of benefits (§ 53.6 SGB V).

b) The Federal Government has granted subsidies to statutory health insurance for some years. The statute now provides for annual payments of 2.5 billion euros for the years 2007 and 2008. In the following years, these will rise to a total annual sum of 14 billion euros. Under § 221.1 SGB V, these payments are intended to be a flat-rate reimbursement of the expenses of the health insurance funds for benefits unrelated to insurance.

III.

1. a) The first, second and third complainants are insurance undertakings in the form of stock corporations (Aktiengesellschaft ), the fourth and fifth complainants are insurance undertakings in the form of mutual insurance associations. They offer both full insurance policies and supplementary insurance policies. However, by far the majority of their business (75 per cent to 90 per cent) concerns comprehensive health insurance, including insurance for civil servants with a claim to a government subsidy for health-care charges. Together, the first to fifth complainants have more than four million insured persons with comprehensive health insurance policies.

In the constitutional complaints, the first to fifth complainants directly challenge the new provisions insofar as these introduce compulsory entry into insurance contracts from 1 July 2007 in the standard rate and from 1 January 2009 in the basic rate, uniform throughout the industry, and an absolute prohibition of termination and an obligation to provide emergency treatment for all substitutive comprehensive insurance policies. In addition, they challenge the provisions on the portability of ageing reserves and the supplementary actuarial provisions in the Calculation Ordinance insofar as these contain provisions on the basic rate and on the calculation of the transfer value of the ageing reserves. They submit that there is an infringement of Article 2.1, Article 12.1 and Article 14.1 of the Basic Law. The fourth and fifth complainants in the form of mutual insurance associations also submit that there is an infringement of Article 9.1 of the Basic Law.

The second to fifth complainants also challenge the provisions of § 6.1 no. 1, § 53.4 to 53.6 and § 221.1 SGB V; in this respect, they submit that there is an infringement of Article 2.1, Article 3.1 and Article 12.1 of the Basic Law.

In addition, the first complainant challenges § 208 VVG, which provides that there may be no deviation from the statutory provisions to the detriment of the policyholder or the insured.

Finally, the second complainant challenges further provisions on elective rates in § 53.1, 53.2, 53.5, 53.7 and 53.9 SGB V.

b) In addition, as the sixth to eighth complainants, three persons who have private health insurance with the fifth complainant have filed constitutional complaints.

The sixth complainant, who was born in 1981, is a self-employed physiotherapist and has had health insurance with the fifth complainant since 2003. She has multiple sclerosis.

The seventh complainant, who was born in 1949, a teacher with the status of a civil servant, has been insured by the fifth complainant since 1974. He had high expenses for dental prostheses in the year 2007.

Both challenge all the above-mentioned provisions – with the exception of § 6.1 nos. 1 and 9, § 221.1 SGB V and the provisions on the portability of such health insurance contracts as were only entered into after 1 January 2009 – to the same extent as the fifth complainant. They submit that there is an infringement of Article 9.1, Article 3.1 and Article 2.1 of the Basic Law.

The eighth complainant was a salary-earner from 1987 to 1998. From 1999 he was self-employed. He has had private health insurance with the fifth complainant since 1993. From 1 November 2007, he commenced an employment relationship with a salary above the annual earnings limit. Pursuant to § 6.1 no. 1 SGB V, new version, he now has statutory health insurance again. The eighth complainant challenges § 6.1 no. 1 and § 6.9 sentence 1 SGB V and submits that compulsory insurance infringes Article 2.1 and Article 3 of the Basic Law.

2. With regard to the admissibility of the constitutional complaints against the introduction of the basic rate and the extended standard rate, the prohibition of any termination and the obligation to provide emergency treatment despite failure to pay contributions, the complainant undertakings submit that it is only by way of a constitutional complaint that they can obtain effective legal protection. They submit that it is in particular unreasonable to provoke proceedings before the ordinary courts by the failure to comply with unambiguous statutory provisions, for example by refusing to accept individuals in the basic rate. This will result in the regulatory authorities intervening and imposing sanctions, up to and including revocation of licence. Such proceedings, they submit, would also result in the clarification of the relevant questions of law being deferred until long after the statute entered into force, with the result that an abundance of contracts that could not be reversed might possibly come into existence.

The sixth and seventh complainants submit that they are personally and directly affected by the basic rate because the costs not covered by this rate are passed on to them as insured persons in normal rates. They concede that the first increase of contribution will not be made until 2010, but the burden is already clearly foreseeable. They submit that the compulsory acceptance of new persons in their insurance association and the prohibition of termination infringe their own rights. They state that they have no possibilities of legal protection against this before the non-constitutional courts.

3. The second to seventh complainants are of the opinion that the federal legislature is not competent to legislate for the basic rate. They submit that although the Act to Strengthen Competition in Statutory Health Insurance preserves the structure of private law, its contents deviate so far from the typical and traditional character of an insurance contract under private law that in their totality they can no longer be described as provisions of private insurance law. The private health insurance undertakings are obliged to offer a rate whose benefits are coupled to the law of statutory health insurance and therefore in many respects determined by external factors. The limits on premiums, they argue, will in the long term result in rates that do not cover the costs, and these will force cross-financing by the persons insured in the normal rates. The provision that during the period where the insured is in default of payment of premium the insurer is not only prohibited from terminating the contract but is even obliged to guarantee emergency treatment for the insured and thus to provide welfare benefits, they submit, departs completely from the basis of private contract law. Apart from the fact that the premium is not dependent on income and family members are not co-insured free of charge, the basic rate thus retains no elements of the character of a private insurance policy. Ultimately, the complainants state, this is a hybrid form of private and social insurance, which is not covered by federal competence.

4. a) The first to fifth complainants regard the basic rate as an infringement of their occupational freedom. They submit that they will have an obligation to insure new persons on conditions determined by external factors, violating fundamental rules of the principle of equivalence and personal autonomy. In the long term, the deficient costs cover will increase to a substantial amount, because the basic rate is only interesting for “bad risks”, who would have to accept risk loading or exclusions of benefits in other rates or might even be uninsured. They argue that the accumulation of bad risks in the basic rate, which is unavoidable in the long term, will lead to the rate exceeding the maximum contribution in statutory health insurance from an age at entry of as low as approximately thirty years; for all persons who entered at a greater age, the general limitation of premium would take effect. This will have to be borne, they submit, by all persons insured in normal rates of private insurance. This will lead to the formation of a risk spiral, which is likely in the medium or long term to destroy the business model of private health insurance. For rising prices in the normal rates, they submit, make these less attractive for new insured persons and increase the attraction for those already assured of changing to the basic rate. In the normal rates, by reason of the increasingly ageing existing insured persons and the price increases, which are in any case disproportionate, in private health insurance there is in any case a danger of steep premium increases for other reasons too, and therefore it can be expected that more and more insured will change to the basic rate, in particular older persons who are already paying contributions approaching the maximum contribution in statutory health insurance. Additional persons changing to the basic category would lead to the burden on the normal rates constantly continuing to rise. The long-term result of this might be that the normal rates are no longer affordable for the insured. But in order to be viable, the basic rate is also dependent on cross-financing by the normal rates.

It is true, they submit, that as yet few people are insured in the standard rate. However, the basic rate is open to a substantially greater group of persons, offers a greater range of benefits and can also – unlike the standard rate – be combined with supplementary insurance policies, as a result of which it is considerably more attractive.

The provisions on the basic rate, they submit, which oblige them to provide benefits corresponding to the law of statutory health insurance, lead to a situation where the range of benefits is externally determined. The private insurance undertakings are effectively subordinated to the decisions of the Federal Joint Committee, which makes the authoritative decisions in determining the benefits. However, they submit that they are not represented on this committee, nor does it have any other legitimisation for measures affecting them.

The obligation to grant insurance in the basic rate within specific periods of time to all voluntarily insured persons in statutory health insurance, even if these persons already have adequate insurance cover, they state, is disproportionate. Equally disproportionate is the obligation to accept even persons who have lost their insurance cover with another insurer by reason of deception, threat or intentional violation of the pre-contractual duty of disclosure. Insofar as the state regards coverage of these persons as appropriate, it must guarantee this coverage through its own institutions and may not burden any private mutual benefit associations therewith.

They submit that the insured persons in the normal rates include many persons, above all civil servants, whose income is relatively low. The idea of solidarity would be perverted if these insured persons in the normal rate had to help support insured persons who took out insurance in the basic rate although they could perfectly well afford the higher premiums in the normal rates.

They argue that halving the maximum premium in the case of neediness is a financial redistribution measure in favour of low-income persons which is foreign to the principle of equivalence and is a duty for the state. It also has inappropriate results, because a person relieved in this way may possibly then be in a better position than a comparable insured person who is only marginally above the threshold of neediness.

Substantively, the basic rate results in the insurance undertakings and their insured being commissioned to provide a state benefit, although they lack the necessary proximity to the subject matter and direct responsibility. Unlike the former standard rate, the basic rate is also open to persons previously uninsured, persons voluntarily insured under statutory health insurance, and persons insured by other undertakings, and therefore it is not justified, for example, as a measure to support long-term insured who have come into difficulties. They submit that the insurance undertakings have no responsibility to uninsured persons or persons voluntarily insured under statutory health insurance.

A further impermissible intervention, they argue, is that the contractual relationship has to be maintained despite even the most serious circumstances, for which the insured is responsible. In the most frequent case, default in paying the premium, it is true that the insurance relationship is suspended, but the insurance undertaking is liable for expenses in the case of acute illness, pregnancy and motherhood. In this way, the legislature accepts the risk that the insurer has to provide benefits even though in many cases it will de facto have no possibility of collecting the premium payment owed. For the insured persons, the pressure to pay the premium is slight, since they will at all events receive emergency treatment. But precisely such emergency treatment benefits are particularly expensive. It is at all events inappropriate that private insurance undertakings should have to support even such persons as do not fulfil their obligations to pay although they are not needy.

b) The fourth and fifth complainants make the supplementary submission that as mutual insurance associations their rights under Article 9.1 of the Basic Law are also infringed by the provisions challenged, for the freedom of association protects autonomous decision-making on accepting and excluding insured persons and also on the contributions to be made by the insured.

The first complainant also sees the introduction of the basic rate as an infringement of the constitutional prohibition of retroactive law. It sees itself confronted by an increasing gap in coverage which has not been allowed for in the calculations, because the expenses to be expected for the persons insured in the basic rate are not compensated for by realistic risk premiums.

The second complainant also submits that the obligation of the undertakings to share in risk equalisation is an impermissible special levy.

c) The sixth and seventh complainants submit that the basic rate and its structure infringe their freedom of association. Whereas, in order to insure against the risk of illness, they voluntarily formed an association on the basis of the principle of equivalence, other persons are now enabled to join on a completely different basis. Because the basic rate does not cover costs, they have to co-finance the expenses caused by this, although in this way benefits also go to persons who are better off financially than they are themselves. But the support of persons who cannot afford insurance premiums is the duty of society as a whole and is not specifically the responsibility of those privately insured. The exclusion of every possibility of termination, together with the financial burdens created by this as a result of loss of premiums, reduces the insurance undertaking’s surplus and ultimately burdens it.

5. a) The first to fifth complainants submit that the portability of ageing reserves leads to a direct interference by the Act, since no further acts of implementation are necessary. They state that there are no possibilities of legal protection apart from a constitutional complaint, nor against the basic rate.

The sixth and seventh complainants submit that as existing insured of the fifth complainant they are directly affected by the introduction of the portability of ageing reserves, because as a result of the introduction of portability it is predictable that the loss of good risks will lead to their having to accept substantial premium increases.

The first to fifth complainants see the introduction of portability in new contracts as an infringement of Article 12.1 of the Basic Law. The product offered by private health insurance, they state, is the long-term, stable coverage of the risk of illness. A functioning system of competition requires the insurer to be able realistically to promise this. In the normal rates, such a promise is no longer possible, by reason of the obligation to allow the calculated ageing reserves to be transferred, because every rate is threatened by a later migration away from it of good risks, taking their ageing reserves with them, which inevitably results in substantial increases of premium for the remaining insured who are excluded from a change of insurer. Such a question, they state, destabilises the market and may create massive problems for individual undertakings. Demutualisation to the detriment of bad risks, they argue, is incompatible with the principle of the social welfare state. The provision is not necessary to improve the possibilities of changing insurer, since for this purpose it would have sufficed to oblige the insurance undertakings to offer rates with portable ageing reserves as an alternative product.

The first complainant also challenges an infringement of Article 14.1 of the Basic Law. It submits that the ageing reserves form ownership positions to which the insurance undertakings are entitled. The introduction of portability encroaches upon their freedom of ownership, because it substantially changes the basis of calculation of the rates.

The introduction of portability for existing customers for the period from 1 January 2009 to 30 June 2009, in the opinion of the first to fifth complainants, infringes Article 12.1 and Article 14.1 of the Basic Law. In order to achieve the aim of improving possibilities of choice and change of insurer, it is not necessary to create portability of ageing reserves for existing customers, for the same reasons as in the case of the new contracts. Nor can it be justified by a right of ownership of the insured with regard to the ageing reserves. The complainants argue that the ownership of the contributions of the insured persons and of the accruals arising from these are allocated to the insurance undertakings, even though these funds, as guarantee assets, are subject to considerable restrictions on disposition. In contrast, the insured do not own the assets corresponding to the ageing reserves, because the ageing reserves were not saved under the existing contracts in the form of a property position allocated to an individual, but form part of an insurance, based on collective calculation of risks, against the risk of a deterioration of health and increased costs of illness. The obligation to allow the insured to take with them the transfer value of the ageing reserve to the extent of the basic rate, they argue, encroaches without justification on the right of ownership of the undertakings. In addition, the introduction of portability in existing contracts is an example of genuine retroactive effect which is unconstitutional.

b) The sixth and seventh complainants submit that the retroactive introduction of portability in existing contracts infringes their right of ownership. The assets created from the contributions of the insured serve to a large extent to ensure that contributions remain stable irrespective of age. The state therefore, they argue, has the duty to protect these assets against dissipation and inappropriate encroachments. Allowing insured persons to take their ageing reserves with them deprives the pool of the means it requires to satisfy the contractual claims and thereby devalues the ownership positions of the other insured. In contrast, the “compensation” for the altered insurance benefits, which is granted to the insured persons in the form of the possibility of taking their ageing reserves with them, does not have the same value. For to persons who like themselves are among the “bad risks”, the guaranteed prospect that the future costs of illness will be borne by the pool, they argue, is substantially more valuable than the calculated ageing reserve.

Another position that can be regarded as property is the guaranteed prospect of reimbursement of contributions or the mitigation of future increases of contributions. By permitting existing customers who move to another undertaking in the first six months of 2009 to take a transfer value with them, the reserves of their insurance undertaking for the reimbursement of contributions are indirectly reduced.

6. The eighth complainant challenges the provision of § 6.1 no. 1 SGB V on the grounds that the requirement that the annual earnings limit is exceeded three times infringes his personal freedom to act. He submits that the legislature does not offer an explanation as to why persons whose income will exceed the annual earnings limit in the next few years do not lose the need of social protection as a factor legitimising obligatory insurance in statutory health insurance until three years have passed. The legislature primarily subjects to compulsory insurance persons – such as, for example, a large number of academic career entrants – who have never yet been covered by statutory health insurance and therefore have never called on the solidarity of statutory health insurance. The mere fact that the reform of the law results in increased revenue in statutory health insurance is not a sufficient ground of justification.

The transitional provision of § 6.9 SGB V provides that where employees were not subject to compulsory insurance on 2 February 2007 under the old law and therefore were privately insured, their reliance on the continued existence of private insurance is protected. The complainant submits that on the key date, 2 February 2007, he was not subject to compulsory insurance and was therefore privately insured. The only reason why the transitional provision does not apply to him, he argues, is because he obtained his high income not as an employee, but as a self-employed person. He submits that this violates the principle of equality.

The second to fifth complainants also submit that their own rights are violated by the provision of § 6.1 no. 1 SGB V. They state that the reform disproportionately restricts their freedom of occupation. They are deprived of a potential group of customers for at least three years, although for the reasons set out by the eighth complainant, there is no justification for this. In addition, the undertakings of private health insurance, by reason of the large number of encroachments by the GKV-WSG, are particularly dependent on acquiring more young insured, which is made considerably more difficult by the reform. For example, since the introduction of the provision they have had significantly lower numbers of new insured.

With regard to the government subsidies to the statutory health insurance funds under § 221 SGB V, the second to fifth complainants are of the opinion that the payment worsens the situation of the private health insurance undertakings in a way which violates the principle of equality as against that of the statutory health insurance funds, which compete for voluntarily insured persons. On the evidence of the legislative materials, the aim of the provision is subsidisation of the co-insurance of children, which is exempt from contributions. Although this is not a special burden of statutory health insurance, they submit, private health insurance receives no corresponding benefit.

7. With regard to the elective rates, the second to fifth complainants submit that the permission of elective rates irreparably changes the nature of competition. For this reason they state that it is not appropriate for such rates to be challenged individually or to wait for such rates offered by the statutory health insurance funds to be approved by the Federal Insurance Supervisory Office. In essence, the permissibility of such rates depends exclusively on the constitutional question as to whether statutory health insurance funds may operate in a market that was previously reserved to the private health insurance undertakings. This, they state, is ultra vires and infringes occupational freedom. Elective rates in the form provided for by the statute are not social insurance benefits, but optional supplementary benefits, which have nothing to do with the elementary life risk of illness. The elective rates lack central characteristics distinguishing them from private insurance. This is particularly apparent in the case of the elective rate providing for reimbursement of costs, which is intended to set off individual statutorily insured persons from the normal insured of the statutory health insurance in such a way that they enjoy better medical benefits as “statutory private patients” by way of higher payments. Fundamentally, the elective rates of the statutory health insurance funds offer the same range of benefits as the supplementary insurance policies of the private health insurance undertakings that are on the market. They serve to protect neither those in social need nor the ability of the social security system to pay. There is no equality of opportunity in competition between private and statutory health insurance here, they submit, on account of the different methods of financing.

The second complainant also sees this distortion of competition in rates of the statutory health insurance funds which allow a deductible and allow the payment of a bonus when benefits are not claimed or restrictions of benefits are agreed.

8. The second to fifth complainants further submit that even if the individual provisions do not infringe their fundamental rights, the provisions of the GKV-WSG in their entirety do infringe them. In the structure of the basic rate and the standard rate, the legislature, they submit, avoids risk-oriented calculation in favour of introducing social elements into the structure of the premium, with the result that from a particular age the premiums no longer cover the illness costs of the relevant age cohorts. In this way, the system of private health insurance becomes dependent on the entry of young and healthy insured persons; the system breaks down if there are an increasing number of older and ill insured persons alongside fewer and fewer young, healthy insured persons, because the limits in the basic and standards rates can only be financed by the future insured. The legislature makes it harder to change to private health insurance by requiring the annual earnings limit to be exceeded for three years. At the same time, the complainants argue, it imposes additional financial burdens on the private health insurance undertakings by way of the prohibition of termination and the obligation to finance emergency treatment. There are further substantial financial burdens resulting from the introduction of portability of ageing reserves. Undertakings that are affected by negative risk selection will find it increasingly harder to carry out their task of long-term coverage of the risk of illness and at the same time to satisfy the “social” requirements laid down by the legislature. In the totality of its measures, they argue, the Act to Strengthen Competition in Statutory Health Insurance has the potential to destroy the business model of private health insurance. This constitutes an impermissible cumulative encroachment upon fundamental rights.

9. The first complainant further submits that the Act to Strengthen Competition in Statutory Health Insurance infringes the requirement of parliamentary approval. The recommendation of the Bundestag Committee on Health on the draft Act to Strengthen Competition in Statutory Health Insurance was passed with amendments which were only conveyed to the committee members the evening before. At the time of approval, the members of the Health Committee had no written version of the Committee’s report on the draft bill in their possession. The plenum of the German Bundestag passed the draft bill on this basis two days after the Health Committee session. In this way, it was practically impossible for the delegates to consider the draft bill in a manner appropriate to its complexity. The complainant submits that the legislature must have a clear view of the restrictions of fundamental rights associated with the provisions that it enacts. For this purpose, it is necessary for the delegates, before a vote is taken, to have a complete overview of the contents of the planned legislation. This did not happen, to judge by the course of the legislative process.

IV.

Opinions on the constitutional complaints were submitted by the Federal Government, the Verband der privaten Krankenversicherung e.V., the Spitzenverband der Krankenkassen (National Association of Statutory Health Insurance Funds), the Bund der Versicherten e.V. and Professor Dr. M. and Professor Dr. R.

1. The Federal Government is of the opinion that large parts of the constitutional complaints are inadmissible. It submits that in order to argue about the cause of complaint based on the reform, the complainants use prognoses which cannot at present be validly examined and which are frequently speculative. A constitutional complaint against a statute is not a suitable proceeding for such an examination.

The reformed provisions, it submits, are constitutional. The challenged provisions of the Act to Strengthen Competition in Statutory Health Insurance are part of a large reform package passed by a large majority which preserves statutory health insurance and private health insurance as a dual system, but delimits the groups of insured persons of the two systems more clearly against each other. In the provisions on the portability of ageing reserves, the statute aims to improve the possibilities of the insured to change insurer, and in this way to strengthen competition, but at the same time, through the basic rate, obligation to contract, exclusion of termination and emergency treatment, it guarantees the necessary protection of social concerns in the new system of competition. The Federal Government states that the changes are acceptable for the undertakings, and the account of effects of the Act to Strengthen Competition in Statutory Health Insurance that allegedly threaten their existence is not very plausible, in view of generally positive up-to-date annual reports of the undertakings.

The case-law of the Federal Constitutional Court on private long-term care insurance shows that the Federal Government is competent to introduce a basic rate; for the characteristics set out there are reflected in the basic rate.

The waiting period for a change to private health insurance is extended to three years for those employees whose income is above the income threshold for compulsory insurance in order that in particular academic career entrants are not de facto allocated to private health insurance at the outset. The overwhelming majority of the new entrants in private health insurance are persons who previously had statutory insurance, which leads to a loss of insured persons in statutory health insurance. This does not constitute an encroachment upon fundamental rights at the expense of the insurers, because the purpose of the statute is not to regulate the practice of an occupation, but solely to strengthen statutory health insurance.

According to the Federal Government, the undertakings' attacks on the federal subsidy for statutory health insurance are unjustified, because there is no genuine competition between the co-existing statutory and private health insurance systems. The subsidies are justified by reason of the socio-political tasks for the whole of society which have been assigned to statutory health insurance, in particular by reason of its numerous family-policy services.

The basic rate realises an essential goal of the GKV-WSG, that of structuring the two pillars of health insurance in such a way that each pillar provides adequate and affordable insurance cover for the whole lives of its insured. For this reason it is necessary that in emergencies it should be possible for insured in both pillars to manage without resorting to the state welfare system and at the same time that cover for all insured should be financeable. The obligation to contract in the basic rate with persons not previously insured which is imposed on the undertakings is necessary to genuinely guarantee insurance cover to those persons who were allocated to private health insurance when the market for statutory insurance was defined; failing this, the danger would exist that the private health insurance undertakings would reject them. The risk selection engaged in by the undertakings in competition with statutory health insurance is not deserving of protection.

The main aim of the basic rate is limiting the premiums to a maximum amount comparable to that of statutory health insurance and reducing the premiums in the case of social neediness, in order to guarantee that the persons insured there will continue to enjoy insurance cover even if, by reason of their personal income or property situation, they are temporarily unable to pay. This also makes it necessary to exclude termination in default of payment, because otherwise the function of compulsory insurance would have no effect. The procedure provided for in the case of default of payment of premiums ensures that in this situation the undertakings only have to provide emergency treatment; for socio-ethical reasons, this is regarded as essential.

The fears relating to the effects of the basic rate on the private health insurance business model are unrealistic. The number of insured in the basic rate is likely to be scarcely different from the total number of insured in the standard rate. The increase of contribution in the normal rates resulting from this will be slight.

Insofar as the undertakings in the form of mutual insurance associations invoke Article 9 of the Basic Law, this does not lead to different results. The challenged provisions relate only to the law of insurance, but not to the law relating to membership. It remains the autonomous decision of the association whether it operates its insurance business on a membership basis or also insures non-members.

It is an important goal of the statute, the Federal Government argues, to improve the conditions of competition in private health insurance by introducing partial portability of ageing reserves. At present [before January 2009], because there is no possibility for an insured person to transfer ageing reserves to a new insurer, there is virtually no competition for existing insured persons, with the result that there are scarcely any incentives to structure benefits in a manner that is cost-conscious for the undertakings. In their arguments, the complainants defend the de facto compulsion to remain in the pool, and thus a situation that is contrary to free market conditions. Admittedly, the dangers for the health insurance market as a result of the effects of one-sided risk selection cited by the complainants are correctly described in the abstract, but the obligation to contract counteracts these dangers; this ensures that the insured – and thus also the good risks – remain in the market. The basic rate also has the effect than any increase of rates that may occur is restricted to a particular level that is uniform throughout the industry. Differences in the risk structure of insurance undertakings, which from the perspective of the undertakings are accidental, are equalised throughout the industry by means of the risk equalisation system of the basic rate. For insurance contracts that are entered into after 1 January 2009, the introduction of portability merely results in the need to calculate rates at a higher figure, that is, taking account of the potential transfer of the ageing reserves on an insured changing to another undertaking. But this affects all undertakings equally. The increase of rates, the Federal Government states, will probably only be in the amount of from 2 per cent to at most 8 per cent. But even this raise in premium does not effect a raise of contributions over the total term of the contract, because this amount benefits the calculated ageing reserves.

With regard to the existing insured, it must be observed that although the ageing reserves are legally the property of the undertakings, they are beneficially the sole property of the insured, because they cover the claims of the insured under insurance contracts. The provision creating portability is at most a restructuring of the previous property position in the context of the constitutional requirement that the use of property should serve the common good: this restructuring is justified in order to give greater freedom to existing insured. For the ageing reserves are to be used by the insurers to reduce the premium burden on the pool in old age. Nor can the expectation of the undertakings to profit from lapses be constitutionally protected. The lapse profits from change of insurer are specifically not based on investments or benefits of the insurers. At all events, the reduction of such an expectation of profit is justified, because the statute serves the purpose of allowing the insured, through the new law on insurance contracts, to share in the strengthening of competition.

The sixth and seventh complainants challenge the burden resulting from the apportionment of the costs not covered in the basic rate; in view of a potential premium increase of a maximum of one per cent to achieve comprehensive insurance cover for the whole resident population, this burden is proportionate, in particular because the possibility of changing to the basic rate also benefits the sixth and seventh complainants. The costs of emergency treatment are financed by the premiums alone. Additional burdens only lead to loss of contributions, but these already exist today.

The submission of the sixth and seventh complainants that introducing portability for existing customers alters their insurance contract subsequently is unsubstantiated, because there is no change either in the calculation of the premium or in the use of the ageing reserves calculated under their contracts.

2. The Verband der privaten Krankenversicherung e.V. fears that the political discussion is aimed at abolishing private health insurance. It states that for this purpose, without credible grounds, compulsory insurance in statutory health insurance is prolonged and the health insurance funds are given the possibility of binding the insured to themselves for several years by way of elective rates, which formed part of the classic supplementary insurance business of the private health insurers. The basic rate gives access to private health insurance to persons who have never had a connection to it. In this way, typical tasks of social welfare are shifted to the private insurance community of policyholders. Unlike statutory health insurance, private health insurance receives no financial compensation for this and does not have the possibilities of economic regulation of the former to mitigate the amount of the contribution. Finally, the possibility given to the existing insured to change insurer and take their calculated ageing reserves with them in the amount of a fictitious insurance policy in the basic rate in the first six months of 2009 means that the contributions will have to be increased. The costs of the change are thus shifted from the individual to the totality of insured.

3. The Spitzenverband der Krankenkassen regards the new provisions as constitutional. Between the two health insurance systems, there is a systematic and permanent risk selection at the expense of statutory health insurance; this is shown inter alia by the fact that the insured in private health insurance have a lower morbidity rate than the insured in statutory health insurance. The measures taken by the legislature are to be seen only as an attempt to correct this imbalance at the expense of statutory health insurance. The basic rate is necessary to protect persons insured in private health insurance against excessive demands in old age. The introduction of portability of ageing reserves serves to create competition for existing insured persons in private insurance, which at present is not functional. The danger of a risk selection is more likely to occur in the medium to long term and leaves enough time for corrective legislative measures.

4. The Bund der Versicherten e.V. is of the opinion that the statute erodes the previous business model of private health insurance. It states that the basic rate does not cover costs and has to be subsidised by those insured in the normal rate, which creates the danger of a migration to the basic rate. The portability of the calculated value of the ageing reserves, for many insurers, leads to risk selection and to increased homogeneity of the pool in the relevant rate; this creates the danger of forming an oligopoly on the insurance market. The private health insurance undertakings are significantly disadvantaged in competition with the statutory health funds.

5. Professor Dr. R. submits that it is impossible to make precise statements on the burden caused by the basic rate, because representative data with information on the structure of the insured in private health insurance are not publicly available. By reason of the structure of the basic rate, which offers only benefits on the level of statutory health insurance, but even for relatively young persons will cost the same as the maximum statutory insurance contribution, this rate is unattractive. The burden for others created by this is therefore likely to be small. The industry itself expects there to be 90,000 insured in this rate. On this basis, the normal rates of the other insured persons will be increased by 1.2 per cent.

The new possibilities of transferring part of the ageing reserves may at least in the short to medium term scarcely be expected to have substantial effects on the premiums in private health insurance. The introduction of portability does not deprive private health insurance of contributions, for when an insured person changes to statutory health insurance, the ageing reserves remain in the undertaking, as was the case to date. The private health insurance undertakings’ assessments of the degree of premium increase as a result of the introduction of portability vary greatly; they range from 2 per cent to 10 per cent.

The introduction of portability of ageing reserves in the extent of a fictitious insurance policy in the basic rate is a mistake from the regulatory point of view, because it generates risk selection; for as a result of this, changes appear all the more attractive the lower the individual risk of illness is. For existing insured, there is merely a possibility of transferring ageing reserves in the first six months of 2009, and only for a change to the basic rate. But a change to the basic rate is not an attractive option for a good risk. The minimum period of eighteen months in the basic rate, enforced by reform of the Calculation Ordinance, prevents such persons using the basic rate as a springboard to the normal rate; this greatly devalues their right to change. For new insured, the situation is somewhat different, since they may also change to normal rates of other undertakings. In general, however, for these persons too, the transferability remains limited to a part of the ageing reserves corresponding to the basic rate benefits, with the result that a change to the normal rate of another insurer still as a rule entails financial penalties for the insured. In view of the ageing reserves that can be created in the basic rate, which it can be seen will be very small, it is above all older insured persons with large ageing reserves who can expect substantial losses on a change of insurer. The partial portability can therefore not be expected to lead to serious increases of premium or to substantial risk selection.

It is impossible to quantify precisely the financial effects of all the measures that will take effect from 1 January 2009. In addition to the burdens arising from the basic rate and the introduction of partial portability, account must also be taken of possible losses of contributions because insured persons are unwilling or unable to pay; however, this financial burden is to be estimated as small.

6. Professor Dr. M. states that the submissions of the undertakings on the expectation that the normal rates will be displaced by the basic rate are not convincing. A serious assessment of the burden to be expected on the normal rates by the need of subsidy of those insured in the basic rate requires well-founded assessments not only of the number of insured expected to enter the basic rate, but also of the proportion of the insured changing to the basic rate whose premium does not cover their actual illness costs, and of the amount by which these will have to be capped, which will therefore need to be financed. None of the constitutional complaints contains an analysis of the change to the basic rate that is complete and consistent in this respect.

Without portability of ageing reserves, competition would be greatly hindered. Admittedly, the introduction of portability of the complete ageing reserves in accordance with the accounts would create the considerable danger of a form of risk selection which might endanger the health insurance market. But the statute introduces only limited portability. This does not completely remove the danger of risk selection, but it reduces its extent and opens up competition, which at present is directed exclusively to business with new insured. The submission of the complainant undertakings, which quote very high transfer values for most of the rates, is implausible and motivated by the recognisable attempt to present the legal situation created by the Act to Strengthen Competition in Statutory Health Insurance as dramatically as possible.

V.

In the oral hearing of 10 December 2008, the complainants, the Federal Minister of Health for the Federal Government and the respective authorised persons made statements. In addition, Professor Dr. Bernd Raffelhüschen spoke on behalf of the complainants. The Federal Constitutional Court also heard the Verband der privaten Krankenversicherung e.V., the Spitzenverband der Krankenkassen, the Bund der Versicherten e.V. and Professors Dr. M. and Dr. R. on the effects of the statutory measures to be expected.

B.

The constitutional complaints are admissible only in part.

I.

The constitutional complaints of the first to fifth complainants are largely admissible, insofar as they challenge portability and the insurance contract provisions and insurance supervisory law provisions on the basic rate.

1. However, contrary to § 23.1 sentence 2, § 92 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG), the first to fifth complainants have not in every respect adequately set out the possibility of an infringement of fundamental rights.

a) With regard to the provisions on the basic rate, which entered into force on 1 January 2009, in 193.5 VVG, § 12.1a to 1c, 4b VAG and § 12g VAG, the first to fifth complainants submit, supporting their submission with evidence, that there is an infringement of Article 12.1 of the Basic Law, because the provisions cause an ultra vires and excessive encroachment on their occupational freedom of contract.

b) Insofar as the first to fifth complainants challenge § 193.6 VVG, the possibility that there is an infringement of fundamental rights is sufficiently argued. They challenge the obligation to provide emergency treatment despite the insured’s failure to pay the contributions, which applies to all substitutive medical expenses insurance policies, and they substantiate this with evidence, as an infringement of their occupational freedom, submitting that this imposes a duty on private undertakings, without justification or compensation, to pay social security benefits.

c) With regard to the absolute prohibition of termination in § 206.1 sentence 1 VVG, the first to fifth complainants submit, with sufficient substantiation, that there is an infringement of Article 12.1 of the Basic Law, and the fourth and fifth complainants additionally submit that there is an infringement of Article 9.1 of the Basic Law.

d) The constitutional complaints against § 204.1 sentence 1 no. 2 letter a VVG, that is, against the introduction of portability of the ageing reserves in the case of a change of insurer where contracts are entered into after 1 January 2009, are also admissible. The first to fifth complainants submit with substantiation by evidence that there is an infringement of Article 12.1 of the Basic Law, on the grounds that the portability of ageing reserves invokes the danger of negative risk selection among the existing insured of an undertaking and thus the endangerment of the fulfilment of the duties under their other insurance contracts.

e) § 204.1 sentence 1 no. 2 letter b VVG creates the right for existing insured to change to the basic rate of another undertaking in the first six months of 2009, at the same time transferring the ageing reserves accumulated with the previous insurer to the extent, as calculated, of the basic rate; the first to fifth complainants submit that this infringes Article 14.1 of the Basic Law. However, the statute interferes with current contracts and thus encroaches directly on the complainants’ occupations, and therefore the complainants’ submissions are in essence a sufficiently substantiated submission of the infringement of Article 12.1 of the Basic Law. The same applies to the right of the insured, contained in § 204.1 sentence 2 VVG, to require the previous insurer to enter into a contract for a supplementary rate in which the ageing reserves over and above the basic rate are taken into account. In contrast, for the reasons set out above, the provisions on portability do not impinge on the area of protection of the freedom of association.

f) The constitutional complaints are inadmissible to the extent that they challenge § 12.1d VAG. This provisions grants the association Verband der privaten Krankenversicherung the right to determine the nature, extent and degree of benefits in the basic rate in accordance with the provisions of § 12.1a VAG. The first and third to fifth complainants do not set out why this is capable of infringing their own fundamental rights. Their cause of complaint is the introduction and the statutory conditions of the basic rate, not the grant of rights to the Verband der privaten Krankenversicherung, which ultimately merely puts into concrete form the contract terms of the basic rate, following the statutory guidelines.

g) With regard to the provisions of the Calculation Ordinance which are challenged in the constitutional complaints, the first to fifth complainants have made no submissions whatsoever as to what constitutional rights of the undertakings might have been infringed by these technical calculation rules.

h) Insofar as the first complainant additionally submits that there has been an infringement of Article 14.1 of the Basic Law by the introduction of portability in new contracts, the possibility of the infringement of a fundamental right has not been set out. The first complainant does not submit what existing ownership positions are claimed to have been affected by the introduction of portability in contracts that can only be entered into after 1 January 2009.

i) The constitutional complaint of the first complainant against § 208 VVG, to the effect that there may be no deviation to the detriment of the policyholder or the insured person from the provisions of §§ 194 to 199 and 201 to 207 VVG is also inadmissible. There is no statement whatsoever as to what independent cause of complaint might be associated with this provision.

j) The submission of the second complainant that the duty to share in the risk equalisation under § 12g VAG is an unconstitutional special levy is also inadmissible. In this respect, no cause of complaint has even been set out. It is true that, under § 12g.1 sentence 3 VAG, the extra expenses which arise in order to guarantee the restrictions of contributions in the basic rate are distributed among all insurance undertakings involved in such a way that these undertakings are equally burdened. But the private health insurance undertakings do not bear this burden, since under § 12c.1 no. 1 VAG in conjunction with § 2.1 no. 5, § 8.1 no. 6 of the Calculation Ordinance these extra expenses of the undertakings are apportioned as a miscellaneous surcharge on the rates of substitutive health insurance policies, that is, ultimately they burden only the insured.

k) The fourth and fifth complainants, which are organised in the form of mutual insurance associations, additionally submit that the provisions on the basic rate infringe Article 9.1 of the Basic Law. In this respect, however, the only conceivable infringement of this fundamental right is through the obligation to contract in the basic rate. In contrast, an encroachment on the fundamental right of freedom of association by the other provisions on the basic rate is out of the question. Encroachments on an insurance undertaking’s freedom to contract and freedom of calculation in structuring a rate do not impinge on the special area of protection of freedom of association, which is based on the principle of free formation of social groups (see Decisions of the Federal Constitutional Court (Entscheidungen des Bundesverfassungsgerichts – BVerfGE) 50, 290 (353)). Neither the organisation of the insurance association, nor its forming of decisions, nor the management of its business is affected by provisions which require an insurance association to offer a rate structured in a particular way. The same applies to the restrictions of contributions in the basic rate under § 12.1c VAG. They do not affect an association in a different way than they do a company (Aktiengesellschaft ) operating the same insurance business; they have no particular relation to the structure of the association.

l) The submission by the fourth and fifth complainants that § 204.1 sentence 1 no. 2 letter a VVG additionally infringes Article 9.1 of the Basic Law is also inadmissible, for they are not affected in this respect. The introduction of portability of ageing reserves affects neither the organisation nor the forming of decisions of an insurance undertaking. Similarly, provisions which govern the possibility of the insured taking ageing reserves with them do not encroach on the freedom to join the association or to leave it. It is only the basic insurance-law conditions, which are of financial importance for individual insured when they decide whether to remain in the association, that are altered, not the rules on joining or leaving.

m) The fifth complainant also fails to substantiate its submission that Article 3.1 of the Basic Law is infringed because the legislature, when introducing the portability of ageing reserves, did not take into account that undertakings which finance the direct costs of entering into an insurance contract not from ageing reserves, but in another manner, would have to give their insured who wished to change insurer greater ageing reserves to take with them than an undertaking using zillmerisation which as soon as the contract is entered into takes the expenses of the insurance mediation from the ageing reserves. The area of protection of Article 3.1 of the Basic Law is impinged upon when different fact situations are treated in the same way despite the fact that the actual disparity is important (see BVerfGE 110, 141 (167); established case-law). Article 3.1 of the Basic Law is not yet infringed if the legislature does not effect differentiations which it is permitted to make; an infringement does not take place until there is no reasonable justification for this equal treatment of different fact situations (see BVerfGE 90, 226 (239)). The fifth complainant does not even adequately show how far it is treated unequally in a significant manner in comparison to undertakings which zillmerise. Concrete figures and sample calculations showing what actual differences occur as a result of the differing amount of ageing reserves in the various undertakings are not given. In addition, the complainant does not critically discuss the natural consideration that the challenged equal treatment may be justified by reason of categorisation and generalisation (see BVerfGE 112, 268 (280)).

2. Insofar as the possibility of infringements of fundamental rights has been shown with adequate substantiating evidence, as stated above, the first to fifth complainants are themselves directly and presently affected by the challenged provisions (see BVerfGE 87, 181 (195); 97, 157 (164)).

The private health insurance undertakings are subjected by § 193.5 sentence 1 VVG, § 12.1b sentence 1 VAG to an obligation to offer insurance cover to the category of persons named in the basic rate, uniform throughout the industry. The provisions challenged are unambiguous in their content and in their consequences for the undertakings affected. The health insurance undertakings may therefore not reasonably be expected to provoke civil litigation by rejecting applications for insurance in the basic rate. If they did so, not only would the danger arise that in a large number of cases persons dependent on health insurance cover would in the first instance remain without benefits, but on the contrary, the insurance undertakings, in view of the fact that their conduct would be clearly unlawful under ordinary law, would have to expect sanctions from the insurance supervisory authority under § 81.2 VAG; these could extend to the revocation of their business licence.

The same applies to the obligation to provide emergency treatment under § 193.6 sentence 6 VVG and the absolute prohibition of termination under § 206.1 sentence 1 VVG. In addition, these provisions are directly linked to the obligation to insure in private health expenses insurance and the obligation to insure in the basic rate, because they all serve to guarantee basic cover within private health insurance. The requirement of procedural economy is also complied with if these provisions are reviewed together as to their constitutionality.

With regard to the statutory requirement of portability of ageing reserves, it is also unreasonable for complainants to be referred to proceedings before the non-constitutional courts. The health insurance undertakings could only provoke civil litigation through clearly unlawful conduct, that is, the refusal to permit insured persons to take ageing reserves with them, and ultimately these proceedings would deal only with the constitutionality of the reform.

II.

Insofar as the first to fifth complainants, in addition, challenge various provisions of the law of statutory health insurance, the constitutional complaints are also only admissible in part.

1. The constitutional complaints of the first to fifth complainants against the provision of § 315 SGB V on the standard rate for persons without insurance cover are inadmissible for lack of a cause of complaint. For from 1 January 2009, the insurance contracts entered into since 1 July 2007 in the standard rate under § 315.1 SGB V were converted by operation of law to contracts in the basic rate under § 12.1a VAG (§ 315.4 SGB V).

2. The constitutional complaints of the second to fifth complainants against § 6.1 no. 1 SGB V are admissible.

The second to fifth complainants submit, substantiated by evidence, that their occupational freedom may have been infringed by the extension of compulsory insurance to a period of three years, because as a result of this they lose potential insured persons. Admittedly, unfavourable changes to the basic financial conditions for the exercise of a profession are not sufficient to assume an encroachment on occupational freedom. The requirement that a complainant is personally affected demands more than a mere effect of state measures. Instead, the state measure must be closely related to the practice of the profession and must show an objective tendency to regulate the occupation (see BVerfGE 106, 275 (299)). That is the case here. The extension to three years in each case limits the group of persons who can enter into a private insurance contract. As a result of this, the possibility of the private insurance undertakings to acquire new insured is adversely affected. The contention that there is no public interest purpose legitimising this implies the admissible submission that there has been an infringement of the private health insurance undertakings’ own fundamental rights; the undertakings are obliged to tolerate bars to market access only if these are constitutionally justified.

3. On the other hand, the constitutional complaints are inadmissible insofar as they challenge the provision of § 53 SGB V on elective rates in statutory health insurance.

It is questionable whether the second to fifth complainants are burdened at all by elective rates offered by the statutory health funds to their insured; for elective rates merely make it possible for their competitors to enter into competition. At all events, the complainants are not directly affected. The statutory health funds are merely granted the right to provide for elective rates in their articles of association. These only enter into effect after they have been approved by the supervisory authority (§ 195.1 SGB V). The challenged provisions merely contain an authorisation, which needs to be given concrete shape, to create rates, and they are therefore not a direct encroachment.

4. Finally, the constitutional complaints are inadmissible insofar as they challenge § 221.1 SGB V. Doubts arise even in view of § 93.3 BVerfGG, which provides that a constitutional complaint directed against a statute or against another sovereign act against which legal action is not possible may be lodged only within one year after the statute enters into force or the sovereign act is pronounced. For § 221.1 SGB V, which provides that the Federal Government must make payments to statutory health insurance for services unrelated to insurance, has been in force in a number of versions since 1 January 2004. However, the Act to Strengthen Competition in Statutory Health Insurance introduces the payments by the Federal Government permanently and increases them.

But the question may be left undecided. For the second to fifth complainants are not personally affected by § 221.1 SGB V. The provision neither influences the occupational conduct of the undertakings of private health insurance in the market, nor does it have a tendency to regulate an occupation.

§ 221.1 SGB V obliges the Federal Government to provide the statutory health insurance funds with the payments set out in the Act as reimbursement for services unrelated to insurance. The Act does not provide for the money to be used for specific groups of persons or special purposes; it accrues to the general budget of the health insurance funds. The payments by the Federal Government therefore result in a reduction of the contributions which equally benefits all contributors to the statutory health insurance funds (§§ 241 et seq. SGB V).

Such a general reduction of rates, made possible by the government subsidy, does not lead to any disadvantage of the private health insurance undertakings that could be challenged by a constitutional complaint. Insofar as the undertakings argue that § 221.1 SGB V is a measure for the equalisation of family burdens and the legislature must therefore provide such preferential treatment to persons with private insurance too, what they are challenging is not an infringement of their own rights: for the private health insurance undertakings charge a contribution for the insurance of a child which is calculated on a risk basis under the rules of insurance law.

In addition, the objective of the provision of § 221.1 SGB V is not directed towards the private health insurance undertakings’ practice of their profession. It governs the lump-sum reimbursement of the expenses of the health insurance funds for services unrelated to insurance. In its opinion, the Federal Government defined this term, with reference to the burdens for the whole of society borne by statutory health insurance, and referred above all to family benefits, such as the insurance of family members without contributions, exemption from contributions in periods of maternity and child-raising benefit, or sickness benefit for those taking care of a sick child. The Federal Ministry of Health quantifies the costs for society as a whole that are borne by statutory health insurance as approximately 25 billion euros for the co-insurance of children and spouses without contribution alone. § 221.1 SGB V is intended to equalise burdens within the system of statutory health insurance, but not to change the market situation in favour of statutory health insurance in relation to the group of persons who are voluntarily insured.

III.

The constitutional complaints of the two privately insured sixth and seventh complainants are inadmissible in total.

1. The sixth and seventh complainants lack entitlement to filing a specific constitutional complaint insofar as they challenge the obligation to contract in the basic rate, invoking Article 9.1 of the Basic Law. The fundamental requirement for being personally affected is that the complainant is a person addressed by a specific statute, that is, that rights and duties arise for the complainant from an element fulfilled by the person of the complainant; a fundamental right of the complainant must be directly affected legally, not merely de facto (see BVerfGE 35, 348 (352)).

Article 9.1 of the Basic Law guarantees the freedom to join existing associations, the unfettered participation of the members in the self-determination of their own organisation, the procedure for their forming of decisions and the conduct of business (see BVerfGE 50, 290 (354); 80, 244 (253)). This guaranteed area is not encroached upon to the detriment of the sixth and seventh complainants by the duty of the insurance undertakings, arising from § 12.1b VAG and § 193.5 VVG, to grant insurance cover in the basic rate to particular persons. For this duty exclusively and directly affects the mutual insurance association in its capacity as an undertaking. Even a merely indirect de facto impairment of the sphere of fundamental rights of the sixth and seventh complainants by the obligation to contract scarcely suggests itself, for in the case of a mutual insurance association, in view of the size of the undertakings by which the two complainants are insured, social elements in connection with personal meetings of the members play no role.

2. Still less do the provisions on the basic rate burden the sixth and seventh complainants under Article 9.1 of the Basic Law, insofar as they concern the obligation of the undertakings to offer a basic rate, uniform throughout the industry, with benefits based on those of statutory health insurance, in which risk loading and exclusion of benefits are prohibited. The question as to under what conditions other members of the association are insured does not impinge on the status of the sixth and seventh complainants and is of financial interest to them only insofar as this, through the apportionment system under § 12g VAG, § 8.1 no. 6 of the Calculation Ordinance, has effects on the costs of their own insurance. Similarly, the legal sphere of the sixth and seventh complainants protected by Article 9.1 of the Basic Law is not affected by the obligation of the health insurance undertakings to provide emergency treatment (§ 193.6 sentence 6 VVG) and the absolute prohibition of termination (§ 206.1 sentence 1 VVG).

3. Insofar as the sixth and seventh complainants challenge the provision of § 204.1 sentence 1 no. 2 letter b VVG with regard to the possibility for insured persons to take with them part of the calculated ageing reserves in the first six months of 2009, the constitutional complaints are also inadmissible.

With reference to Article 9.1 of the Basic Law, the sixth and seventh complainants do not submit in a convincing way how freedom of association might be affected by a change of the provisions that relate to the insurance relationship on transferring ageing reserves.

Insofar as the sixth and seventh complainants submit that there has been an infringement of Article 14.1 of the Basic Law, the legal effect of the challenged provision is solely to their advantage. For the first six months of 2009, if they terminate the insurance contract with their previous insurance undertaking, they are granted the possibility of transferring part of their ageing reserves and therefore an additional contractual right.

The claim of the sixth and seventh complainants that this additional right in effect leads to a de facto devaluation of their ownership position resulting from the insurance contract is unsubstantiated by evidence. The provisions of the Insurance Contract Act and the Insurance Supervision Act guarantee that the insured, on entering into a substitutive health insurance contract, has health insurance cover without the possibility of termination with a premium that in principle remains the same. An increase of premium is only admissible when there is a change of the collective risk or of the cost situation in the health care system (§ 203.2 and 3 VVG). If insured persons change their health insurance as a result of the new legal position, this does not have the result that the pool in one rate is deprived of capital and thus it becomes more difficult to perform the insurance contract. By virtue of the mandatory provisions of the Insurance Supervision Act, assets equal to the expected benefit expenses in all rates must be available as guarantee assets of the undertaking and must be protected from seizure (§ 66.1, 66.1a no. 3, 66.2 VAG, § 77.1 VAG).

It is therefore at most conceivable that if an increased number of insured who are good risks leave the respective rate pool, this results in the risk structure deteriorating, so that following increased costs of illness there may be premium increases. But this is the consequence of market activity, not a state encroachment on an individual financial right of the insured who remain with their insurer. No infringement of Article 14.1 of the Basic Law can arise from this.

The sixth and seventh complainants see it as a violation of property rights that permitting ageing reserves to be transferred reduces the undertakings’ reserves, which, they claim, in the case of a mutual insurance association also has a detrimental effect on them in the form of a lower reimbursement of contributions or a lesser mitigation of increases in contributions; in this respect, no protected, individual, financial legal position is discernible. The development of the surpluses of the insurance undertakings can at present not be foreseen, nor is there any legal position relating to their use that has as yet been individually allocated to the insured.

IV.

1. The constitutional complaint of the eighth complainant against § 6.1 no. 1 SGB V, which provides that he becomes exempt from compulsory statutory health insurance only after his earnings exceed the regular annual earnings limit three times, is admissible. The eighth complainant submits with sufficient substantiation by evidence that there is a potential infringement of Article 2.1 of the Basic Law as a result of a disproportionate extension of compulsory statutory health insurance. He himself is also presently and directly affected, since he has been employed since 1 November 2007 with a salary above the annual earnings limit and in this employment is now subject to compulsory health insurance, whereas under the old law he could have remained in his private insurance undertaking.

2. Insofar as, in addition to this, the eighth complainant challenges § 6.9 sentence 1 SGB V, however, the constitutional complaint is not sufficiently substantiated by evidence. The eighth complainant submits that there is an infringement of Article 3.1 of the Basic Law, because the provision solely benefits employees who on 2 February 2007 under the old law were not subject to compulsory insurance because their earnings were above the annual earnings limit and who therefore were privately insured, but it does not benefit other groups of persons. The constitutional complaint does not deal with the obvious argument that when the legislature creates a rule protecting legal continuity it must primarily take account of the group of persons whose basis of trust is affected by the tightening of the statutory requirements for release from compulsory insurance, the basis of trust in the present case being an existing legal relationship. These were the employees who under the former law were not subject to compulsory insurance because their earnings exceeded the annual earnings limit, who were already privately insured or who had already given notice to terminate their statutory health insurance, with a view to taking out a private insurance policy, and whose insurance relationship would have been dissolved by operation of law in the former case without a transitional arrangement. On the other hand, for persons outside statutory health insurance their existing insurance cover did not change; as a result, the legislature did not need to consider them. Consequently, there is no point of contact here to assume an infringement of Article 3.1 of the Basic Law.

V.

Only the first complainant submits that there is an infringement of Article 12.1 of the Basic Law in conjunction with the principle of the rule of law caused by the manner in which the Act to Strengthen Competition in Statutory Health Insurance came into existence. However, the alleged infringement of the requirement of parliamentary approval is not substantiated with sufficient evidence. The requirement of parliamentary approval means that a statute must precisely and discernibly provide what duties and effects it creates for the persons affected (see BVerfGE 108, 186 (235); established case-law). When the first complainant submits that the members of parliament were insufficiently informed before the vote in the German Bundestag, however, it challenges a defect in the legislative procedure, that is, an infringement of Article 76 of the Basic Law. It does not state what legal provision might be infringed in this connection. The complainant does not discuss the case-law of the Federal Constitutional Court (Bundesverfassungsgericht ) to the effect that a statute that, from a formal point of view, properly comes into existence in conformity with the provisions of the Basic Law is not unconstitutional merely because it was discussed in the plenary session and in the committees of the German Bundestag only shortly before it was intended to enter into force, and in great haste (see BVerfGE 29, 221 (233)).

C.

Insofar as the constitutional complaints are admissible, they are unfounded.

I.

The provisions on the basic rate in private health insurance do not infringe the fundamental rights of the first to fifth complainants.

1. The Federal Government has legislative competence to introduce a basic rate in private health insurance. The legislative competence arises from its competence for insurance under private law as a part of the law relating to economic matters (Article 74.1 no. 11 of the Basic Law). The federal legislature may at all events rely on Article 74.1 no. 11 of the Basic Law if its provisions relate to insurance undertakings that insure risks under private-law contracts in competition with others, which in principle base their premiums on the individual risk and not on the earned income of the insured, and which, on the occurrence of the event insured against, provide contractually agreed services on the basis of a funded financing system. Just like the social insurance competence in Article 74.1 no. 12 of the Basic Law, the competence for insurance under private law is not from the outset closed to developments. The federal legislature may also rely on Article 74.1 no. 11 of the Basic Law if it makes provisions of social equalisation for a new type of private-law insurance it has created, where these provisions limit the effect of the characteristics of private-sector insurance (see BVerfGE 103, 197 (216-217)).

The provisions on the basic rate are within these limits. The provisions on the basic rate do not effect a fundamental reform of the law of private health insurance, but are restricted to introducing a single, state-regulated rate in the insurance law of private health insurance which is otherwise unchanged; the undertakings may continue to offer their normal rates in full. Insurance in the basic rate is effected by a contract under private law between an insured and a private undertaking which is in competition with other undertakings. The premiums are fundamentally based on the individual risk, that is, age and gender, not on the earned income of the insured. The insured may influence the amount of the premium by agreeing deductibles. The contractually agreed benefits on the occurrence of the event insured against are in principle provided on the basis of a funded financing system.

Contrary to the opinion of the first to fifth complainants, the fact that the basic rate considerably restricts the freedom under private law to structure the insurance contract does not call into question the allocation of the basic rate to private insurance. It is true that the basic rate has elements of social equalisation as a result of the prohibition of risk loading and exclusion of benefits, the restriction of the amount of the premium, the statutorily prescribed scope of cover and the apportionment of the costs not covered in the basic rate in a risk equalisation between the undertakings. However, these elements of solidarity are no different from the corresponding provisions in the field of private compulsory long-term care insurance (see § 110.1 SGB XI), in connection with which the Federal Constitutional Court has already established that they are within the scope of the federal competence granted under Article 74.1 no. 11 of the Basic Law (see BVerfGE 103, 197 (218-219)). Since the basic rate, in contrast to private compulsory long-term care insurance, also comprises no contribution-exempt co-insurance of children and no reduced-rate co-insurance of spouses, the opinion of the first to fifth complainants that the basic rate is private insurance in form only is incorrect.

2. The submission made by the fourth and fifth complainants that compulsory insurance in the basic rate infringes their rights under Article 9.1 of the Basic Law is unfounded. As already stated under B. I. 1. k), burdens which arise as a result of encroachments on an insurance association’s freedom to contract and freedom of calculation in designing a rate impinge only on its financial activity and are therefore to be measured solely against Article 12.1 of the Basic Law. It is only the obligation to accept new members in an insurance association that might impinge on the area of protection of freedom of association. Article 9.1 of the Basic Law protects the right to found clubs and associations. The personal area of protection of this right includes not only the natural persons who join together to form an association, but also the association itself in its right of self-determination with regard to its own organisation, the procedure for forming decisions and the conduct of business, and also the right to come into existence and to continue in existence (see BVerfGE 80, 244 (253); established case-law). The area of protection includes the freedom to found and join associations, freedom to leave and freedom to be absent from associations (see BVerfGE 50, 290 (356)).

With regard to the fourth and fifth complainants, however, this area of protection is ultimately not affected by the provisions on compulsory insurance in the basic rate. It may remain undecided in the present proceedings whether in the case of large insurance associations, in which the joint interest of the members is restricted to the most favourable insurance conditions, and personal elements of the ties between members and the forming of social groups are unimportant, the enforced obligation to accept new members is to be seen as an encroachment on Article 9.1 of the Basic Law. For the statute does not oblige the mutual insurance associations to accept new members, but merely to grant insurance in the basic rate, that is, to enter into an insurance contract with an applicant. The fourth and fifth complainants, as large insurance associations, have the alternative possibility of granting insurance outside membership business. For under § 21.2 VAG, on the basis of the articles of association insurance business may be conducted against fixed premiums without the insured persons becoming members (see Fahr/Kaulbach/Bähr, VAG, 4th ed. 2007, § 22 , marginal no. 11; Weigel, in: Prölss, VAG, 12th ed. 2005, § 21 , marginal no. 20). This insurance business, known as non-membership insurance, is admissible in accordance with the practice of the insurance supervisory authority if it does not exceed the limits of an unimportant line of business and if it constitutes at maximum one-tenth of the total contribution income (see Weigel, loc. cit., § 21 , marginal no. 21 with further references). The mutual insurance associations therefore in principle have the possibility of complying with the obligation to insure in the basic rate otherwise than by creating a membership relationship. For at present, at all events, it cannot be expected that insurance in the basic rate will constitute a substantial volume of business in the private health insurance undertakings.

It is not necessary to decide here whether the situation with regard to small mutual insurance associations which have a “sphere of activity whose group of persons is narrowly limited” (see § 53.1 sentence 1 VAG), that is, associations in which the element of the personal connection between the members is more significant, would lead to different results by the yardstick of Article 9.1 of the Basic Law for the examination of the provisions on compulsory insurance in the basic rate.

3. The provisions on the basic rate do not infringe the rights of the first to fifth complainants under Article 12.1 of the Basic Law.

a) The obligation to contract in the basic rate does not disproportionately encroach on the occupational freedom of the complainant undertakings.

aa) Article 12.1 of the Basic Law protects against state encroachments which relate specifically to the practice of an occupation or a profession (see BVerfGE 116, 202 (221)). The obligation to contract under § 12.1b VAG, § 193.5 VVG in the basic rate constitutes such an encroachment for the undertakings of private health insurance.

bb) The obligation to contract in the basic rate contains a restriction of the freedom to practise an occupation or a profession of the first to fifth complainants, whose weight, however, does not approach a restriction of the freedom of occupational choice.

The Federal Constitutional Court in principle judges restrictions of freedom of occupation by the yardstick of proportionality, and in doing so it distinguishes according to the level of freedom of occupation at which the provision applies. Restrictions that apply purely to the practice of an occupation or profession may in principle be legitimised by every reasonable consideration of the public interest (see BVerfGE 103, 1 (10)). However, the purpose and intensity of the encroachment must be in a reasonable proportion (see BVerfGE 108, 150 (160)). In contrast, objective or subjective restrictions of the choice of occupation – with variations in the individual case – are permissible only to protect overriding objects of public interest (see BVerfGE 7, 377 (406-407); 102, 197 (214)).

The obligation to contract in the basic rate contains no restriction of the freedom of occupational choice. It neither prevents access to the occupation of an insurer, nor does it lay down a duty to give up the occupation. The statutory provisions are restricted to requiring the insurance undertaking, when it practises its occupation, to offer a basic rate in addition to its normal rates, and on application to grant insurance cover in the basic rate.

The associated financial consequences do not make it impossible to conduct the occupation of a private health insurer in a meaningful way. Insofar as persons choose the basic rate, the first to fifth complainants may indeed be obliged in the individual case to insure these persons in return for premiums that are not commensurate with the risk, because the amount of the premium is limited. In addition, they are prohibited from agreeing risk loading and exclusion of benefits. But the insufficiency of cover that may arise is borne not by the insurance undertakings, but by the persons insured in private health insurance. For additional costs that arise because the basic rate must also insure persons with pre-existing conditions are apportioned to the persons insured in the basic rate (§ 8.1 no. 7 of the Calculation Ordinance). In turn, the additional costs that arise from the absolute restriction of the amount of the contribution are in the first instance equally distributed among the individual undertakings through the procedure of risk equalisation under § 12g VAG, and then, under § 8.1 no. 6 of the Calculation Ordinance, apportioned to the rates of all persons with private health insurance by way of an additional charge.

The result is no different when considering the fears expressed by the undertakings that in order to finance the basic rate, premium increases are necessary in the normal rates, as a result of which premiums in private health insurance as a whole will rise disproportionately. They submit that in future this will lead to substantial transfers to the basic rate, with its premiums that do not cover costs, and in this way in the long term destroy the whole business model of private health insurance. According to the statements of the expert witnesses heard by the Senate, Professor Dr. M. and Professor Dr. R., at all events at present the possibility of many insured persons changing to the basic rate can be excluded. For this rate requires the payment of a high premium of approximately 570 euros per month. At the same time, the central benefits of the basic rate do not match the usual range of benefits of the normal rates of private health insurance. The claim to payment of the doctor in attendance in the basic rate is limited by § 75.3a SGB V to a maximum of 1.8 times the fee in the schedule of fees for doctors, and it is therefore considerably lower that what is normally charged for the treatment of private patients, with the result that when insured persons change to the basic rate, they must fear that they will no longer receive the treatment they are accustomed to as private patients. The benefits covered by the basic rate under the law of statutory health insurance, in addition, are in many cases inferior to the normal range of benefits of private health insurance. Thus, for example, there are a large number of exclusions of benefits and restrictions on benefits in statutory health insurance for medicinal products, other therapies and aids and in the case of dental treatment. In the case of hospital treatment, the right to general treatment is restricted, whereas private health insurance at normal rates offers a number of additional benefits (single or two-bed room, treatment by the senior consultant). The reduced insurance cover in the basic rate may only partially be compensated for through supplementary insurance policies, and these also increase the costs. But the examples given by the complainant enterprises, which are intended to show the attraction of such combinations of basic rate and supplementary insurance, are not very realistic. Consequently, the assumption appears very remote that older insured persons, after many years of insurance in a normal rate, will change to the basic rate of another undertaking for the sake of slight financial advantages and will retain only a supplementary insurance policy with their old insurer.

In view of this, there is no support for the opinion that the basic rate in its present form seriously infringes the occupational freedom of the complainant undertakings in a manner that is equal or similar to restrictions on occupational choice. Admittedly, the first to fifth complainants express the fear that this will change in future. However, the legislature assumes that an impairment of the functioning of private health insurance as a result of the basic rate is out of the question in future too. Initially, it is for the legislature to assess the future development of fact situations and to predict the effects on them of the provisions passed by it. In this process, the legislature has a broad latitude for prediction and assessment. The Federal Constitutional Court reviews such prognoses to determine whether they are based on a sufficiently certain basis. Depending on the field of the legislation and the importance of the legal interests at stake, highly specific criteria may be applied, from a review of whether the planned Act is evidently faulty to a review of whether the planned Act is justifiable to an intensive review of the content (see BVerfGE 50, 290 (332-333) with further references).

In the present case, there is no right to demand that the effects of the statute must be predictable with sufficient probability or even certainty. It is sufficient that the legislature states that even in the future there will be no serious impairments of the business model of private health insurance as a result of the basic rate in its present form, and that it presents justifiable arguments to support this. It is true that the basic rate in some respect alters the market conditions of private health insurance, but it leaves its basic business model untouched; on the basis of an obligation to insure, it is only to guarantee insurance cover in private health insurance for such persons as are not allocated to statutory health insurance and, under the conditions of freedom of contract, could otherwise obtain no insurance cover or only inadequate insurance cover. In view of the experience with the previous standard rate of the private insurance undertakings, in which very few persons were insured, with the relatively small number of persons as yet not insured and the relatively unattractive insurance conditions of the new basic rate, the legislature was entitled to assume that the basic rate will not in the foreseeable future have any significant effects on the business of the private health insurance undertakings. The fact that in the long term there might be substantial numbers of persons changing to the basic rate, which the complainants could not cope with, cannot at present be foreseen, taking into account the large number of legal, financial and demographic factors and individual practices significant in this respect. It is not discernible that the legislature proceeded from unjustifiable assumptions in its prognosis. If, on this basis, it decided to use the challenged provision, the associated assessment of the effects of the statute must be regarded as reasonable, even if it later transpires that it is mistaken in whole or in part (see BVerfGE 50, 290 (335-336)). In this case, the legislature would, if applicable, be obliged to correct the legislation.

cc) The encroachment on the first to fifth complainants’ freedom to practise an occupation or a profession is justified by significant public interests. To justify the goal expressed in the GKV-WSG of ensuring that all the citizens of the Federal Republic of Germany have affordable health cover in the statutory or private health insurance system, the legislature may invoke the obligation to establish and maintain a social welfare state contained in Article 20.1 of the Basic Law. The protection of the population against the risk of illness is a core task of the state in the social welfare state as defined in the Basic Law. The intention of the legislature to ensure health insurance cover for all inhabitants is motivated by the goal of covering a general life risk which may be realised for everyone and at any time and can create an unpredictable cost burden. It is a legitimate concept of the legislature required to shape social policy to guarantee the means necessary to cover the expenses arising from this on the basis of a compulsory insurance policy (see BVerfGE 103, 197 (221)).

dd) The combination of compulsory insurance under § 193.3 VVG and obligation to enter into contracts in the basic rate under § 193.5 VVG is appropriate to achieve the legislature’s goal of guaranteeing adequate and affordable health insurance cover for the category of persons allocated to private health insurance. The persons affected are given the right to enter into a contract guaranteeing insurance cover in the scope of the compulsory benefits of statutory health insurance. This insurance cover is affordable because the amount of the premium in the basic rate is limited to the maximum amount of statutory health insurance and is reduced if neediness within the meaning of SGB II or SGB XII occurs.

ee) No less burdensome means than the obligation to contract provided in the statute and imposed on the insurance undertakings is discernible to guarantee health insurance cover for the group of persons affected. If there were no obligation to contract, in particular persons with serious pre-existing conditions would have no possibility of being accepted by a private health insurance undertaking, because it would not accept them by reason of the increased risk. To attain the goal of the legislature, both compulsory insurance and the obligation to contract are necessary.

Admittedly, appropriate medical care could also be guaranteed by direct state financing. However, the legislature is not required to avoid a financial burden for a particular group if the burden in one or another way could be imposed on the general public through the government budget (see BVerfGE 30, 292 (319); 81, 156 (193); 85, 226 (237)).

The legislature had no obligation to allocate all those persons who cannot be insured in private health insurance or have lost private health insurance to statutory health insurance. This would result in a one-sided burdening of statutory health insurance. It would then be obliged to accept all persons who had previously been rejected by the private health insurance undertakings because they were bad risks. Following this, the private health insurance undertakings could practise risk selection with the aim of imposing the costs burden of such bad risks on the persons insured under statutory health insurance. The constitution does not provide for such a one-sided distribution of risk. If the legislature creates a national insurance system with two insurance pillars, it may allocate the groups of persons to these two in a well-balanced distribution of burdens (see BVerfGE 103, 197 (224)) and thus guarantee the financial stability and functioning of statutory health insurance (see BVerfGE 103, 172 (184-185)).

ff) The obligation of the health insurance undertakings to grant insurance cover in the basic rate to the group of persons named in § 12.1b sentence 1 VAG, § 193.5 sentence 1 VVG is not unreasonable. The aim of making it possible for all inhabitants to have affordable insurance cover is of great importance. It confers on the insurance undertakings a task that is part of their essential business activity. In view of the existential importance of private health insurance law for the insured, there have traditionally been restrictions on the freedom of occupation of insurers, and these can clearly be seen in the great density of legislation in the Insurance Contract Act and the Insurance Supervision Act. There have long since been legal restrictions on the autonomy of the insurance undertakings with regard to accepting and excluding members (see §§ 198, 206 VVG).

gg) The obligation to insure is not unreasonable in relation to individual groups of persons who are entitled to be insured in the basic rate.

This applies to persons who are voluntarily insured in statutory health insurance or are entitled to voluntary health insurance (§ 193.5 sentence 1 nos. 1 and 2 VVG). Admittedly, this group of persons is not dependent on private insurance in the basic rate in order to obtain risk coverage at all. But it is justified to open the basic rate to this group of persons, because it strengthens their possibilities of selecting and changing their insurer, reinforces the dual structure of health insurance with its statutory and private insurers, and fairly distributes the burden between them. For persons who are good risks, whose obligation to be insured in statutory health insurance ends – for example because they become self-employed – have a greater tendency to choose to take private health insurance, which may be more attractive to them, whereas persons who are bad risks tend rather to remain in statutory health insurance, because private insurance undertakings either refuse to accept them, or accept them only with risk loading or exclusion of benefits. Against this background, it is legitimate to grant access to private health insurance to persons who are bad risks too, who are above the limit for compulsory insurance, by obliging the insurers to contract in the basic rate. In addition, the burden on the private undertakings arising from this provision is likely to be extremely small. Cases are scarcely conceivable in which it is worthwhile for a person who is voluntarily insured or entitled to be insured in statutory health insurance to change to the basic rate, because the benefits of the basic rate are equivalent only to the level of statutory insurance, but as a general rule the maximum permissible contribution in statutory insurance is charged.

Furthermore, the private undertakings can reasonably be expected to grant insurance in the basic rate in the case of persons who have intentionally committed a breach of contract in another insurance undertaking (§ 193.5 sentence 4 VVG, § 12.1b sentence 4 VAG). If they were given a right to refuse in these exceptional cases, the result would be that such persons would probably have no access at all to private health insurance, because no undertaking would be prepared to accept them. The legislature was entitled to attach more weight to the aim of complete insurance cover in this respect than to the interests of the complainants, the more so in that the breach of contract occurred not in the sphere of the undertaking obliged to accept them, but in connection with a different insurer. The mere concern that such conduct could be repeated is not a constitutionally compelling reason to impose a general refusal of entry to a private insurance undertaking, in which aspects of a particular confidential relationship of a personal nature normally play no role.

b) Nor do the other provisions on the contents of the basic rate infringe the freedom of occupation of the first to fifth complainants.

aa) The maximum contribution in the basic rate, laid down by § 12.1c VAG, together with the prohibition of including pre-existing conditions in the calculation of the contribution, pursues the legitimate public interest of guaranteeing affordable comprehensive insurance cover in private health insurance for the group of persons allocated to compulsory insurance in private health insurance by § 193.3 VVG.

The imposition of a maximum contribution is reasonable for the undertakings affected. Admittedly, it might have the result that particular insured persons would no longer pay a contribution commensurate to the risk and the basic rate might then have to be subsidised. However, since these costs not covered in the basic rate are apportioned to the normal rates of privately insured persons, this does not create a significant burden for the first to fifth complainants. It is true that this apportionment leads to a higher contribution for the insured; however, because of the distribution system under § 12g VAG, this affects all undertakings equally and does not change their competitive position.

Insofar as the first to fifth complainants point out that the basic rate is not open only to needy persons, but to every person insured in private health insurance, this does not call into question the reasonability of the restrictions of contributions. The fear that normal or low earners in the normal rate of private health insurance will in future subsidise high earners in the basic rate will not be realised, in the assessment of the finance experts heard; the Senate has no cause to doubt their prognosis. According to this prognosis, the basic rate is only likely to be used by insured persons who, because of increased risks of illness, would not receive affordable insurance cover, or who, by reason of the development of the contributions in their normal rate, have such a great financial burden that they decide to change to the basic rate, which provides fewer benefits. The assumption that a high earner, in order to minimise the contribution, would decide voluntarily to change to the basic rate with its reduced range of benefits, appears unrealistic according to this prognosis.

bb) The restrictions of contributions provided in § 12.1c sentences 4 to 6 VAG in the case of neediness are also constitutionally unobjectionable. Following the introduction of compulsory insurance and obligation to contract in private health insurance, they are indispensable in order to enable persons who for financial reasons cannot afford the normal rates to have private health insurance nonetheless. The limits take into account the limited ability of this group of persons to pay. They are reasonable for the undertakings because the costs that consequently remain uncovered are equally imposed on all undertakings and are subsequently apportioned to the insured in the normal rates and in part assumed by public insurance carriers.

cc) Also constitutionally unobjectionable is the duty imposed on the private health insurance undertakings to offer the basic rate uniformly throughout the industry with a range of benefits whose nature, scope and amount is comparable to the benefits under the third chapter of SGB V to which there is a claim (§ 12.1a sentence 1 VAG). A level of benefits that is uniformly structured for all undertakings is necessary because otherwise, in a rate with obligation to contract, in which the private health insurance undertakings are also obliged to insure persons with increased risks in return for contributions that may not be commensurate with the risk, there would be the danger that the undertakings design the rate inadequately and fail to insure even serious health risks. In this connection, it is within the discretion of the legislature to lay down a level of care that is in principle uniform for statutory and private insured and covers all essential cases of illness satisfactorily. The statute, in requiring that the range of benefits to be laid down by the Verband der privaten Krankenversicherung must be “comparable” to the compulsory benefits of statutory health insurance, leaves sufficient latitude to put the benefit rights in the basic rate into concrete terms, taking into account the special features of private health insurance, and by no means creates an obligation to incorporate all the detailed provisions from the law of statutory health insurance in the basic rate.

dd) Contrary to the opinion of the first to fifth complainants, on the other hand, there is no constitutional obligation for the legislature to restrict the basic rate to a minimum basic provision. Requirements as to the substance of a basic rate could only become constitutionally problematic if the undertakings were forced to provide benefits which made the basic rate attractive to a large number of potential insured in contrast to the normal rates of private health insurance, but the basic rate, as a result of the statutory requirements, did not cover costs. If, in this case, the basic rate, by reason of its attractive cost-benefit ratio, caused a large number of persons to change from the normal rates to the basic rate, the question as to whether it was compatible with the fundamental rights of the private insurance undertakings would arise once more, and on a different fact basis. But by reason of the unfavourable overall conditions of the basic rate, this is at present, as far as can be foreseen, not the case. For the central benefits of the basic rate are inferior to the customary range of benefits of the normal rates of private insurance.

c) The basic rate therefore is, all in all, an admissible use, based on the concept of the social welfare state, of the private health insurance undertakings for the public interest (see BVerfGE 30, 292 (311)); it serves the aim of the Act to Strengthen Competition in Statutory Health Insurance to ensure the full functioning of private health insurance for all insured allocated to it and guarantees that the persons most severely affected by illness can find affordable and nevertheless adequate insurance cover with premiums calculated on a risk basis. In addition, the legislature provides for a financial equalisation pool in order to protect against competitive disadvantages undertakings which happen to insure a large number of bad risks in the basic rate.

4. The absolute prohibition of termination of § 206.1 sentence 1 VVG does not infringe the fundamental rights of the first to fifth complainants.

a) The infringement of Article 9.1 of the Basic Law submitted by the fourth and fifth complainants is non-existent, because the area of protection of freedom of association is not even impinged on. It is true that a mutual insurance association, as a result of the absolute prohibition of termination, cannot terminate the insurance relationship. However, membership of the association must be distinguished from this. Under the general rules on the termination of continuing obligations, exclusion from a mutual insurance association is possible for cause even without being explicitly provided for in its articles of association (Weigel, in: Prölss, loc. cit., § 20 , marginal no. 50 with further references; Petersen, Versicherungsunternehmensrecht , p. 34; see also Federal Court of Justice (Bundesgerichtshof – BGH), judgment of 10 July 1989 – II ZR 30/89 –, Neue Juristische Wochenschrift – NJW 1990, pp. 40, 42). The fourth and fifth complainants have the possibility of terminating the insured’s membership in the association in such a case and only continuing the insurance contract as part of non-membership business, as an insurance against fixed premiums.

b) The freedom to practise an occupation or a profession is not disproportionately impaired by § 206.1 sentence 1 VVG. The absolute prohibition of termination acquires its justification from the connection between the obligation to insure in private health insurance introduced by the Act to Strengthen Competition in Statutory Health Insurance and the associated intention of the legislature to permanently define the limits between statutory and private health insurance. The legislature wishes to preserve and strengthen the dual health insurance system; in this process, the private pillar is also to become fully functional and insure its insured in the same way as insurance under public law, comprehensively, free of legal risks and permanently. The concern of the legislature was to prevent, in by far the most common case of breach of contract, that is, default in paying the premium, the loss of ageing reserves, which follows from a termination of the insurance contract (see Bundestag document 16/4247, p. 68). In view of the fact that health insurance is an unpersonalised mass business, it is reasonable and not inappropriate that the legislature has dispensed with a provision on termination for other breaches of contract, which are relatively rare.

5. Similarly, the obligation to provide emergency treatment under § 193.6 sentence 6 VVG is not a disproportionate encroachment on the freedom of the private health insurance undertakings to practise an occupation or profession.

Under § 193.6 sentence 6 VVG, in periods when, as a result of the insured’s arrears in contributions, the insured’s entitlement to health insurance benefits is suspended, the insurer remains liable for expenses that are necessary to treat acute illnesses and pain and in the case of pregnancy and motherhood. According to the submissions of the Federal Government, this is intended to guarantee a minimum protection, which for social and ethical reasons is regarded as essential. This is a fundamentally legitimate legislative aim.

This does not entail unreasonable demands on the first to fifth complainants. It is true that the provision deviates from the principles of general civil law and insurance contract law. Under general legal rules, in the case of default of payment, the insurer is released from the duty to perform (§ 38.2 VVG). In contrast, § 193.6 sentence 6 VVG imposes on the insurer an obligation to perform, although it will possibly receive no counter-performance.

However, this obligation must be seen in connection with the overall concept of the Act to Strengthen Competition in Statutory Health Insurance, whose aim is to provide all privately insured persons with protection without recourse to the state welfare system. The Federal Government correctly points out that extending compulsory health insurance to the whole population in a two-pillar system of statutory and private health insurance necessarily requires provisions which prevent claims on welfare benefits in both pillars, even in socially problematic cases. For this reason, medical care in emergency situations must be guaranteed in both pillars; failing this, the private pillar would not be fully functional. § 193.6 sentence 6 VVG mirrors the equivalent provision for voluntarily insured persons in statutory health insurance; in the case of default of payment, they too (only) receive emergency treatment (§ 16.3a SGB V).

The Senate cannot find that the obligation to provide emergency treatment will result in an unreasonable burden on the undertakings. The undertakings bear only the limited risk of the loss of premium; for the costs of the medical treatment are already calculated in the rate at the cost of the other insured. Against this is the advantage that as a result of the obligation to insure, a larger group of insured is now permanently allocated to private health insurance. In addition – contrary to the fears of the undertakings – it is relatively unlikely that insured persons will intentionally cease to pay in reliance on their undertaking’s duty to provide emergency treatment. If an insured is solvent, the undertaking can enforce its claims in the civil courts. But even persons in financial difficulties can scarcely be expected to cease payment; even with knowledge of the undertakings’ duty to provide emergency treatment, they will ask themselves whether they still attach value to the usual benefits in the case of illness. In practice, such cases – as is customary even now – will often be solved by mutual agreement, for example by narrowing the scope of benefits insured, with a corresponding reduction of the premium. If the financial difficulties of the insured reach the degree of neediness within the meaning of social welfare law, under § 32.5 sentence 1 SGB XII there is a claim against the social welfare funding agency to assume the expenses of private health insurance. In the case of needy persons who are governed by the law of basic provision for persons seeking work, under § 26.2 no. 1 SGB II the basic provision funding agency has an obligation to contribute to private health insurance in the extent of § 12.1c sentences 5 and 6 VAG.

II.

The introduction of partial portability of ageing reserves is compatible with the Basic Law.

1. Health insurance contracts which are entered into from 1 January 2009 on must, under § 204.1 sentence 1 no. 2 letter a VVG and § 12.1 no. 5 VAG, provide for portability of the ageing reserves to an extent corresponding to the basic rate. Previously, the undertakings without exception chose contracts under which, if the insurance contract was terminated, there was no claim to transfer the ageing reserves created for the insured, that is, they were “bequeathed” in full to the insurer (see Decisions of the Federal Court of Justice in Civil Matters (Entscheidungen des Bundesgerichtshofes in Zivilsachen – BGHZ 141, pp. 214 et seq.); as a result of this provision, this will not happen in future.

a) Article 12.1 of the Basic Law protects, as part of occupational freedom, the entrepreneur’s freedom of contract and disposition (see BVerfGE 97, 228 (254)). The provisions on portability encroach on this area of fundamental rights because they prohibit the previous contractual practice of the undertakings and oblige the undertakings to provide the possibility in the insurance contract for the insured to transfer the ageing reserves to a new insurer. The provision therefore, directly and purposefully, creates duties of conduct for the insurance undertakings.

b) The introduction of partial portability of the ageing reserves encroaches on the freedom of the first to fifth complainants to practise an occupation or a profession. However, there is no encroachment on the freedom of occupational choice. The undertakings are prevented neither from seeking customers nor from entering into new contracts. Admittedly, in calculating their rates, the undertakings may no longer take the lapse rates into consideration in reduction of premiums. However, this applies in the same way to all undertakings active in the market.

The introduction of partial portability of ageing reserves may potentially have negative effects on individual undertakings, if they in future suffer an increased number of insured who are good risks leaving them, which would constitute the much-feared risk selection among the persons insured by them. However, for the first to fifth complainants this can neither be foreseen nor is it inevitable. In future, the undertakings may equally gain and lose insured persons who wish to change insurer. In addition, as Professor Dr. R. submitted, in view of the fact that the net increase of privately insured persons in 2007 was merely 60,000, whereas there were 8.55 million persons already insured in private comprehensive health insurance, a critical potential for risk selection processes can at most develop in the long term; in the foreseeable future, which is all that the Senate can assess in the present case, such developments need not be feared.

c) The legislature can rely on legitimate public interests for the introduction of partial portability of ageing reserves.

aa) In private health insurance, an ageing reserve does not have the character of a concrete property right allocated to the holder in the manner of a sole and exclusive right. The formation of ageing reserves is not a form of savings made by an individual, but a guarantee in the form of capital based on a calculation of collective risk to finance the risk of an age-related deterioration of health and increased illness costs (see BGH, judgment of 11 May 2006 – III ZR 228/05 –, Versicherungsrecht 2006, pp. 1072, 1073 with further references). In sharing in profits and surrender values of endowment insurance policies, there is not only an element covering the risk, but also a constantly growing, individual savings element, which is built up, and throughout the term of the contract this can be quantified as a specific amount and is paid out at the end of the contract term (see BVerfGE 114, 1 et seq.; 73 et seq.); in contrast, ageing reserves are merely a costing item (see Scholz, in: Festschrift für Maydell , 2002, pp. 636, 643; Bieback/Brockmann/Goertz, Zeitschrift für die gesamte Versicherungswissenschaft – ZVersWiss 2002, pp. 471, 477).

bb) In making ageing reserves portable, the legislature is pursuing the goal of creating functioning competition in the private insurance market and making it easier for the insured to move to another insurance undertaking. The complainant undertakings themselves admit that for the existing insured of private health insurance undertakings it has to date been practically impossible after a certain age to change their health insurance, because the loss of ageing reserves entailed by this meant that a new insurer had to make its calculations without these reserves and therefore charged increased premiums. As a result, the competition between the undertakings was restricted to the new entry of young insured into private health insurance and to insured from other private health insurance undertakings with a shorter term of insurance. The risk that the insured would lose the ageing reserves on changing insurance effectively protected the insurer against terminations and at the same time reduced the chances of other insurers to gain new insured (see Gutachten der Unabhängigen Expertenkommission zur Untersuchung der Problematik steigender Beiträge der privaten Krankenversicherung im Alter , 18 June 1996, Bundestag document 13/4945, pp. 42 et seq.; Abschlussbericht der Kommission zur Reform des Versicherungsvertragsrechts of 19 April 2004, pp. 143-144, www.bmj.bund.de/media/archive/647.pdf). At the same time, the lack of portability prevented the insured, with increasing age, from changing to another insurance undertaking.

d) The introduction of partial portability of ageing reserves is suitable to improve the possibility of the insured to change their insurer, and thus to improve competition between the undertakings. Admittedly, the chances for an insured with increased risk of illness to change insurer are not greatly improved even if part of the ageing reserves may be transferred, because the insured in question will not find an insurer willing to accept him or her in a normal rate. However, this does not alter the fact that portability in principle improves the chances of changing.

e) No other means suggests itself that would be less of a burden on the first to fifth complainants. Their opinion is incorrect when they submit that in order to improve competition it is equally effective to offer the insured both rates with portable ageing reserves and rates without portable ageing reserves, giving insured who value flexibility the choice. For it seems likely that in this way a possibility of changing insurer, encouraging competition, was created for only some of the insured. There would also be the danger that rates with portable ageing reserves would be made unattractive by the undertakings, since the latter would have no financial interest in offering rates that would enable their insured to change to the competitors if there were favourable conditions.

f) The introduction of partial portability of the ageing reserves is not an intervention in the number of existing insured of the undertakings that is unreasonable because of the danger of risk selection.

It is true that if the undertakings are to be able to perform their health insurance contracts in the long term, this in principle presupposes that their insured include a sufficient number of persons who are good risks. A constant departure of insured who are good risks with the consequence that one undertaking only insures persons who are bad risks and have high illness expenses could in this respect ultimately lead to the insolvency of the undertaking. In the reform discussion in the past, therefore, models were rejected which provided for transferability of the full calculated ageing reserves, because they were said to carry the danger of an “unjustifiable risk election and increased homogeneity” (see Abschlussbericht der Kommission zur Reform des Versicherungsvertragsrechts , pp. 143 et seq.).

However, the GKV-WSG does not provide for the transfer of the total calculated ageing reserve, but merely for its transfer in the extent of the benefits covered in the basic rate. Consequently, where a person changes insurer, under the new law a considerable proportion of the ageing reserve created for the insured in his or her normal rate will still remain with the previous undertaking. The insured may only use these remaining ageing reserves for supplementary insurance policies with the previous insurer (§ 204.1 sentence 2 VVG). Although the reform increases the risk of migration of insured persons, it also offers increased opportunities of obtaining new insured as a result of their changing their insurers. In this way, competition between the insurance undertakings is encouraged in an acceptable manner.

The de facto lifelong connection to one insurer is, contrary to what the complainants claim, not a part of the terms of insurance accepted by the insured when they enter into a contract. As a rule, insured persons are not likely to become aware of it until, after a long period under a contract, they attempt to change insurer and in doing so establish that this is financially virtually out of the question. The present situation creates false incentives for the undertakings, since they effectively need not concern themselves with their existing insured, and if the existing customers leave them, this even gives them financial advantages (see Terhorst, Wahlfreiheit und Wettbewerb in der privaten Krankenversicherung , pp. 127 et seq.).

In this respect, the reform of the statute encourages more customer orientation, leads to more parity of contract and strengthens the self-determination of the insured, who are structurally disadvantaged in relation to the insurers, in a way that is reasonable for the undertakings.

2. The introduction, limited to the first six months of 2009, of partial portability in the case of contracts entered into before 1 January 2009 (§ 204.1 sentence 1 no. 2 letter b VVG) is constitutionally unobjectionable.

a) The provision contains no breach of the constitutional prohibition of retroactive law. There is genuine retroactive effect if the legislature subsequently interferes in a fact situation that has been completed. But it is decisive that the facts affected by the retroactive effect not only commenced, but had already been completed, before the statute was promulgated. In contrast, there is false retroactive effect if a provision has an effect for the future on present fact situations and legal relationships which have not yet been completed and thus at the same time devalues the legal position affected (see BVerfGE 101, 239 (263)). Whereas genuine retroactive effects are prohibited by the principle of the rule of law, false retroactive effects are as a rule permissible, but they must be legitimised in the area of protection of the fundamental right affected in each case, on the basis of the general principles for the restriction of this fundamental right (see BVerfGE 101, 239 (263))

The challenged provision of § 204.1 sentence 1 no. 2 letter b VVG has no genuine retroactive effect. The statute does not encroach retroactively on a fact situation that was already completed before the Act to Strengthen Competition in Statutory Health Insurance entered into force on 1 April 2007. The effect of the statute is restricted to obliging the insurance undertaking to allow the calculated ageing reserves to be transferred to the extent of the basic rate in the case of the termination in the first six months of 2009 of an insurance contract entered into before 1 January 2009 and currently still in effect. The point of contact of the statute, therefore, is a contractual relationship created in the past, but the statute makes provisions only for the future. When the contractual right of termination is exercised in the time between 1 January 2009 and 30 June 2009, the ageing reserves that to date have remained in the original insurance undertaking give the insured a claim to the payment of a sum of money. No duty is imposed on the insurance undertaking to reimburse premiums already paid by the insured for periods before the statute came into force.

b) The duty to transfer part of the ageing reserves in the case of existing contracts under § 204.1 sentence 1 no. 2 letter b VVG is not an encroachment on the property of the insurance undertakings, protected by Article 14.1 of the Basic Law.

The legal positions capable of being protected within the meaning of Article 14.1 of the Basic Law include all property rights allocated by law to a private legal entity in such a way that it may exercise the associated powers for its private benefit on its own responsibility (see BVerfGE 83, 201 (209); 89, 1 (6)). The holder of the fundamental right is to be guaranteed a sphere of freedom in the area of property rights, and the holder’s legal position is to be of benefit as the basis of private initiative and in the holder’s private interest, and on the holder’s own responsibility (see BVerfGE 100, 226 (241); 102, 1 (15)).

In this case, there is not even an encroachment on a concrete asset of the undertakings that can be assessed in financial terms. The first to fifth complainants assume that § 204.1 sentence 1 no. 2 letter b VVG will encroach on the undertaking’s ownership of the guarantee assets; this is incorrect. The statute provides that “the calculated ageing reserves of the part of the insurance whose benefits correspond to the basic rate” is to be transferred to the new insurance undertaking. In this way, the undertaking is given an obligation to pay money to the new insurer. The guarantee assets serve to satisfy the contractual claims of the insured and are therefore subject to particular protective provisions. The undertaking may only access this if the departure of the insured results in a decrease of the balance sheet value of the guarantee assets required to cover all benefit claims of the other insured (see § 77.1 VAG, § 66.1a VAG). Even third-party payment claims do not authorise the undertaking to reduce the guarantee assets.

The amount of the premium to be paid by the insured is not influenced by the provision of § 204.1 sentence 1 no. 2 letter b VVG. Nor does the provision create a new right of termination of the insured that devalues the premium claim of the insurer; it only creates an obligation to pay money on exercising the contractual possibility of termination which already exists under previous law.

Similarly, the challenged provision does not effect an encroachment on the right to an established and practised business enterprise. Notwithstanding the question as to whether the fundamental right to property includes the right to an established and practised business enterprise, the provision protects only the concrete existing rights and interests (see BVerfGE 68, 193 (222-223); 84, 212 (232); 96, 375 (397)). The introduction of a right to transfer part of the ageing reserves on termination of the insurance contract does not encroach upon such concrete existing rights and interests of the insurance undertakings, because it merely creates an obligation of payment for the undertakings.

c) In contrast, § 204.1 sentence 1 no. 2 letter b VVG encroaches on the occupational freedom of contract protected by Article 12.1 of the Basic Law of the first to fifth complainants.

However, § 204.1 sentence 1 no. 2 letter b VVG must be regarded as a regulation of the practice of an occupation or a profession which is only slightly burdensome. The provision affects all private insurance undertakings in the same way. If an insured terminates the contract in order to move to the basic rate of another insurance undertaking, the previous insurer must make a payment to the new insurer. However, the previous insurer may in return also acquire new insured persons, who will bring part of their ageing reserves with them. In addition, the conditions of competition are equal for all undertakings, since by operation of law the basic rate is an identical product in all undertakings, both with regard to the benefits offered and with regard to the calculation of the premium.

The complainant undertakings assume that there is the danger of risk selection which threatens the functioning of the undertakings as a result of large numbers of insured who are good risks migrating in the first six months of 2009; it seems likely that the legislature regards this danger as slight. For the possibility created by § 204.1 sentence 1 no. 2 letter b VVG of transferring part of the ageing reserves to a new insurer does not give the existing persons insured under private insurance a substantial improvement of their possibilities of changing insurer. It is most likely to improve the possibility of changing of persons who by reason of their high illness costs have previously had no opportunity whatsoever to change insurer and now may change either to the basic rate of their own insurer or to the basic rate of another undertaking. But from a financial point of view, the loss of insured who are bad risks is an advantage for the undertakings, even if they have to give the insured part of their ageing reserves to take with them.

However, for persons wishing to change insurer who are good or at least average risks, § 204.1 sentence 1 no. 2 letter b VVG does not create any significant increase of possibilities of selection and change. For the transfer of part of the ageing reserves is made possible only on a move to the basic rate, not to the normal rates, of a new insurance undertaking. But for the average insured in private health insurance, the basic rate is not of financial interest, by reason of its inferior level of benefits combined with a high premium.

The possibility of moving direct from the basic category to the new insurer’s normal category, which is objected to by the complainant undertakings as an incentive to change, has now de facto ceased to exist as a result of the development of law. On the basis of § 13.1.a of the Calculation Ordinance as amended from 1 January 2009, for persons already insured in private health insurance who under § 204.1 sentence 1 no. 2 letter b VVG change to the basic rate of another insurance undertaking in the first six months of 2009 and later move to another comprehensive health insurance rate in the new undertaking, the ageing reserve they have taken with them can only be taken into account to reduce the premium if they have already spent a qualifying period of eighteen months in the basic rate. For an insured who wishes to change insurer, this has the result that he or she must remain in the basic rate of the new undertaking for eighteen months under the benefit terms of statutory health insurance before being able to change to a normal rate. In this time, the insured must pay the contribution calculated for the basic rate of approximately 570 euros per month. In view of these unattractive conditions, there is no real support for the fear that within the short period of six months there will be appreciable numbers of people changing insurer.

As a regulation of the practice of an occupation or a profession that is only slightly burdensome, § 204.1 sentence 1 no. 2 letter b VVG is legitimised by the aim of creating a competitive situation on a change to the basic rate (see BVerfGE 103, 1 (10); established case-law). § 204.1 sentence 1 no. 2 letter b VVG may have this effect, notwithstanding the insured’s possibilities of changing, which in fact have been only slightly increased, because it forces the undertakings to make clear to their customers the advantage of remaining in their own undertaking and if relevant to show them new contract possibilities.

III.

1. The provision of § 6.1 no. 1 SGB V as amended by the Act to Strengthen Competition in Statutory Health Insurance does not infringe fundamental rights of the eighth complainant.

a) Under § 5.1 no. 1 SGB V, wage earners, salary earners and persons employed for purposes of occupational training who work for payment are compulsory insured in statutory health insurance. However, under § 6.1 no. 1 SGB V in the version applicable until 1 February 2007, those wage earners and salary earners whose regular annual income exceeded the annual earnings limit were exempt from compulsory insurance in statutory health insurance. In this connection, an anticipatory approach was taken. If it could be foreseen when a person first commenced an occupation that the agreed annual income would probably exceed the annual earnings limit, the employee in question was exempt from compulsory insurance, with the result that career entrants with a foreseeable annual income of this amount were not subject to compulsory insurance (Peters, in: Kasseler Kommentar Sozialversicherungsrecht , August 2008, § 6 SGB V , marginal no. 18). Under this law, the eighth complainant would have been exempt from compulsory insurance when he began his employment on 1 November 2007, since his annual income of 85,000 euros was above the annual earnings limit for 2007, which was 47,700 euros. Under § 6.1 no. 1 SGB V, new version, however, the eighth complainant is now subject to compulsory insurance for at least the next three years.

b) Insured persons who by reason of § 6.1 no. 1 SGB V, new version, are subject to compulsory insurance in statutory health insurance and therefore may no longer change immediately to private health insurance or remain in it are affected in their rights under Article 2.1 of the Basic Law by the temporary order of compulsory insurance in a public-law health insurance fund (see BVerfGE 115, 25 (42) with further references). On the other hand, compulsory membership does not constitute an encroachment on the negative freedom of association (see BVerfGE 38, 281 (297)).

The encroachment on Article 2.1 of the Basic Law associated with § 6.1 no. 1 SGB V in the version in force since 2 February 2007 is justified. The aim of the reform is to ensure that even salary earners with high earnings are committed to statutory health insurance for at least three years, in order in this way to strengthen the financial basis of statutory health insurance. The previous arrangement, under which employed persons could leave statutory health insurance when they first exceeded the annual earnings limit, was regarded by the legislature as not sufficient to guarantee the continued functioning in future of the statutory health insurance, which is based on the solidarity principle (see Bundestag document 16/3100, p. 95).

Statutory health insurance serves the social protection and the safeguarding of employees against the financial risks of illness. It is based on a comprehensive social equalisation between healthy and sick persons, but above all between insured persons with a low income and those with a higher income (see BVerfGE 79, 223 (236-237)) and between single persons and persons with family members entitled to maintenance. The legislature may define the group of compulsorily insured persons in whatever way is necessary to create a collective body of the insured that is able to pay (see BVerfGE 44, 70 (90); 103, 271 (288); Chamber Decisions of the Federal Constitutional Court (Kammerentscheidungen des Bundesverfassungsgerichts – BVerfGK) 2, 283 (288)). In doing this, it has wide room to manoeuvre.

c) The compulsory insurance, extended to a period of three years, of employees whose income exceeds the annual earnings limit is suitable to achieve the legislative goal. This binds in particular persons able to pay to the collective body of the insured whose contributions help to safeguard statutory health insurance. An equally effective means which burdens the affected insured persons less is not evident.

The arrangement is also reasonable for the affected insured persons. The legislature did not increase the annual earnings limit and thus permanently increase the group of persons with compulsory insurance. Instead, it merely extended the period in which insured persons have to remain in the statutory health insurance system before they may decide to move to private health insurance. This is directed in particular to employed persons who prior to their employment had sometimes profited from the benefits of the collective body of the insured for decades, as children covered by dependent insurance but exempt from contributions, or as trainees or career entrants with low earnings; when their earnings first exceed the annual earnings limit, they are to continue to be bound to the social security system for a certain period of time (see Bundestag document 16/3100, p. 95). This is a consideration that justifies a certain extension of the period of solidarity in burden-sharing between the insured under statutory health insurance with higher and lower incomes.

Admittedly, the extension of compulsory insurance to a period of three years also affects persons who under the previous law were released from compulsory insurance at the very beginning of employment subject to insurance by reason of the amount of their earnings, as was particularly the case among persons commencing an academic career. For them, it will in many cases not be possible to justify their subjection to compulsory insurance even with a duty of subsequent solidarity with the community of policyholders, since such persons have often remained privately insured all their lives. Nevertheless, subjection to compulsory insurance is also reasonable for them. The legislature has no duty to remove these persons in advance from compulsory insurance, for the three-year period is justified even independently of the consideration of subsequent solidarity. When requiring evidence that the annual earnings limit is exceeded, it may require that this situation continues for a certain period of time and remains consistent.

In extending the period of compulsory insurance, in addition, the legislature was entitled to take into account the aspect of strengthening the financial basis of statutory health insurance. Ensuring financial stability and thus the functioning of statutory health insurance is a reason of public interest of paramount importance (see BVerfGE 68, 193 (218); 103, 172 (184); 114, 196 (248)). In connection with the creation of a collective body of the insured that is self-financing, this also legitimises extensions of the group of persons involved, in order in this way to ensure a better equalisation between insured persons with higher and lower incomes.

Finally, it does not follow from the de facto effects that arise for a subsequent change to private health insurance that the period of compulsory insurance extended to three years is unreasonable. It is true that the period of compulsory insurance extended to three years has the result that the premium to be paid in private health insurance is higher, by reason of the later age of entry of the insured, unless this risk is cushioned by a suspension agreement. But this additional burden will not prevent any insured from changing to private health insurance.

2. Nor are the fundamental rights of the second to fifth complainants infringed by § 6.1 no. 1 SGB V.

The extension of the period of compulsory insurance does admittedly infringe the insurers’ freedom to practise an occupation or a profession, because the category of persons whom they may insure is temporarily restricted.

However, the infringement of the freedom of the complainant undertakings to practise an occupation or a profession is, as set out above, justified by sufficiently weighty reasons of public interest, all the more so in that the existing number insured in private health insurance undertakings of approximately 8.3 million insured are unaffected by this and civil servants, professional persons and the self-employed, for whom there are no restrictions on access to private health insurance, are not affected at all by the reform.

IV.

Nor do the changes to the law made by the Act to Strengthen Competition in Statutory Health Insurance as a whole create a cumulative infringement of fundamental rights that is incompatible with the occupational freedom of the first to fifth complainants.

In principle it is possible that various individual encroachments, in themselves insignificant, on areas protected by fundamental rights, in their total effect result in a serious impairment which exceeds the degree of intensity of encroachment that can be constitutionally accepted (see BVerfGE 112, 304 (319-320); 114, 196 (247)).

Such an effect of the reform of the law can, however, not be found. The statements of Professor Dr. M. and Professor Dr. R. have revealed no evidence to suggest that the period of compulsory insurance extended to three years, the basic rate and the partial portability of ageing reserves, in their cumulative joint effect, currently seriously threaten the business model of the private health insurance undertakings.

However, the legislature has a duty to observe the consequences of the reform. For the provisions on the basic rate, portability and the increased period of compulsory insurance in statutory health insurance might result in premium increases for persons insured in the normal rates, and thus to considerable numbers changing to the basic rate with its limited premiums. The advantage of the insured in the basic rate might disadvantage the other insured in the normal rates. For the more persons take insurance in the basic rate and the more losses this makes, the more do the price of the normal rates and the burden on those insured in these rates rise. Ultimately, this could lead to a depletion of the real main business of the private health insurance undertakings, with the result that the statutory provisions would need to be reviewed again. If the legislature, by introducing compulsory insurance and the obligation to contract in the basic rate in a constitutionally permissible way, gives the private health insurance undertakings the task of providing basic protection within a private-sector market for the group of persons insured by it, it must also, in the interest of the insured, ensure that this has no unreasonable results for insurance undertakings and those they insure.

V.

Part C. III. of this decision (three-year period) was passed by five votes to three; the remainder was unanimous.