The BGH (Bundesgerichtshof – Federal Supreme Court) stated in its judgment, that § 8 AGBG (now § 307 para. 3 BGB) does not preclude a review of the above terms. The judicial review of content is only precluded so far as it relates to the type, scope and quality of the benefits owed under the contract. Clauses, which exclude, amend, define or modify the main benefits, are however subject to review of content. Art. 4 para. 2 Unfair Contract Terms Directive 93/13/EEC does not however – contrary to the view of the court below - extend the limits of judicial review. Art. 8 of the directive expressly allows for a stricter control of preformulated clauses by national law.
According to the view of the BGH however this does not affect the present case, as § 1 (5), 1st sentence of the insurer’s standard terms are in any event not within the narrow area excluded from review by § 8 AGBG. § 1 (2) of the insurer’s standard terms name an insurance policy for “trips abroad”, which contains a territorial distinction from domestic sickness insurance. According to this rule “abroad” does not include the territory of a state whose nationality the policy holder possesses or in which he has his habitual residence. The clause thereby modifies the promise of main benefits defined in § 1 (2) and (3) of the insurer’s standard terms in a restrictive manner. Furthermore, due to the many different conceivable alternatives (persons with different nationalities and different permanent residences) the clause represents a regulatory structure, whose scope is only evident to the average policy holder, if at all, following initial interpretation of the whole clause including the exceptions. Due to a breach of the principle of transparency resulting from § 9 (1) AGBG to the detriment of the policy holder, the exclusion clause is therefore void.
Also, § 5 (1)(g) of the insurer’s standard terms incommensurately disadvantages the policy holder (§ 9 (1) AGBG) and is therefore void. § 5 of the insurer’s standard terms intends, as is discernible from its title, to regulate limitations of cover. It therefore encompasses all cases in which cover exists in principle, but where the insurer nevertheless does not wish to provide it. According to the exclusion of benefits in § 5 (1)(g) of the insurer’s standard terms for “examination and treatment relating to pregnancy, childbirth and abortion”, medically necessary treatments in this context are not covered by the policy even if they are unforeseen (§ 1(2) of the standard terms). With this content § 5 (1)(g) of the insurer’s standard terms modifies the main subject of cover given in § 1 (2) of the insurer’s standard terms in a restrictive manner. § 5 (1)(g) of the insurer’s standard terms incommensurately disadvantages the policy holder contrary to the principle of good faith and is therefore void.
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