If an insurance company has not properly informed its customers about the right of objection, the consumer has a right of free rein for a period of time. The insurer must also reimburse the closing and administrative expenses in the course of the reimbursement of the premiums paid.
According to § 5a of the Insurance Contract Law in the version valid until the end of 2007, policyholders who had concluded a contract in the years 1995 to 2007 according to the so-called policy model and were informed incorrectly about their right to object, could not do so for more than one year after payment of the first premium disagree. As part of the policy model, the customer completed an application form. The insurer accepted the application by handing over the insurance policy, the insurance conditions and the other contractual documents to the customer.
If the documents were incomplete and, in particular, a clear indication of the opposition period was lacking, the European Court of Justice found that the contracts were in breach of applicable European law. A hidden note in the fine print is not enough.
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What has the BGH decided?
By judgment of 7 May 2014 (ref .: IV ZR 76/11), the BGH had ruled that the provision of § 5a of the Insurance Contract Act (old version) was not applicable to life and pension insurance and supplementary insurance. Consumers who were not properly informed about their right to be contradicted when taking out a life or pension insurance still have a right of objection today. The same applies if the insurer has not handed over the insurance conditions and other consumer information.
In principle, the exercise of the right of opposition means that the insurer must reimburse the premiums paid.
By judgments of 29 July 2015 (ref .: IV ZR 384/14 and IV ZR 448/14), the BGH has decided in two further proceedings which positions are to be deducted from the policyholder in the event of a reversal following a protest and which are to be deducted , In addition to any payment already made for the repurchase value due to a termination, the insurer may first deduct the risk costs for the insurance cover that existed until the opposition. If, in addition, withholding tax (plus solidarity surcharge) was paid to the tax office upon payment of the surrender value, this is also taken into account as an asset advantage of the policyholder and deducted accordingly from the premiums to be paid back.
However, the insurer may not deduct the closing and administrative costs. These are to be reimbursed in full, so the BGH in the two aforementioned decisions. The same applies to installment payment supplements.
Likewise, the insurer has to reimburse the real benefits derived from the premiums. However, the burden of proof for the draw of benefits lies with the policyholder. The mere presumption of yielding a certain amount is not enough. Instead, the policyholder must refer to the earnings situation of the respective insurer (BGH, judgment of 11.11.2015, ref .: IV ZR 513/14).
Insofar as the repayment of a unit-linked life or pension insurance is concerned, the insurer only has to issue the current fund value. The risk of loss arising from the investment of savings shares in the funds is borne by the policyholder. However, if profits were made with the savings units invested in funds, these are due to the policyholder (see also BGH, judgment of 11.11.2015, ref .: IV ZR 513/14).
In the recent past, some insurers have rejected a reversal, relying on constitutional concerns against the aforementioned BGH case law. However, the constitutional complaints lodged by the insurer were not accepted. By decision of 23 May 2016 (Ref .: 1 BvR 2230/15 and 1 BvR 2231/15), the Federal Constitutional Court found that the decisions of the BGH of 29 July 2015 were constitutionally unobjectionable. In any case, a rejection of the reversal, based on constitutional concerns, is unlikely to occur in the future.
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How should you proceed?
Before you contact your insurer, check or let you check whether you have been duly informed of your right to objection and / or have received the terms of insurance and other consumer information when concluding your life or pension insurance contract.
If the examination reveals that you have a right to object, you should clarify whether a continuation of the contract - if not yet terminated - does not make sense, because you have a well-interest old contract, for example. Caution should also be exercised when the contract is combined with occupational disability insurance. If the supplementary insurance provides for a pension payment in the event of occupational disability, a contradiction should be reconsidered particularly thoroughly. A contradiction usually leads to the loss of this important additional protection.
You also have the option of objecting if you have already terminated your life or pension insurance contract and have received a surrender value (see BGH judgment of October 16, 2013, ref .: IV ZR 52/12).
For any claims for redemption, the period of limitation of three years applies (§ 195 BGH). It begins to run only at the end of the year, in which the opposition or resignation has been declared, the BGH in a decision also issued in 2015 (judgment of 08 April 2015, ref .: IV ZR 103/15).
If you have filed an opposition and received a reimbursement, you should check whether the insurer has also reimbursed the costs of closing and administration. If not, you should reclaim them with reference to the BGH judgments of 29 July 2015 (BGH (Ref .: IV ZR 384/14 and IV ZR 448/14).
Source: Consumer Center 07.09.2016