The Senate stated that § 4 (2), 2nd sentence of the general conditions of insurance relating to the calculation of net income is formulated too imprecisely. According to the clause, the “average earnings of the policyholder for the last twelve months prior to making the application or before the relevant date of incapacity save where the tariff provides for another period of time” is determinative of the calculation. This imprecise formulation allows at least three possible interpretations, which would each produce a different outcome. Because the clause was not made more precise in the concrete case, and none of the interpretation possibilities upon reasonable appraisal and consideration of the recognisable grounds of factual connection are to be preferred over the others, then in doubt, according to § 5 AGBG, the clause is to be construed to the detriment of the user. Thus, the interpretation most favourable to the policyholder is to be chosen. In the concrete case, it is to be understood as a direction to the contracting parties to agree the daily sickness benefit on the basis of the net income of the previous twelve months and expected other sickness benefits. Only this understanding of the condition would secure the relation of performance and payment, as thus the insurance service and the agreed premium would correspond. § 4 (2) MB/KT is therefore to be understood as merely a direction to the contracting parties.
The Senate further argued that application of the principle of transparency would not produce any other result either. According to this principle formulated in the EC Directive of 5.4.1993 on Unfair Terms in Consumer Contracts, the interpretation most favourable to the consumer always applies in the case of unclear formulation as well. As § 5 AGBG serves the transposition of the provision, no other standards would apply here. Also according to this provision, § 4 (2) MB/KT would only be a rule without sanction.
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