Brussels, 20 November 2009
Internal Market: Commission refers Belgium to Court of Justice over law on supplementary health insurance provided by private sickness funds
The European Commission has decided to refer Belgium to the European Court of Justice over its national rules on supplementary health insurance provided by private sickness funds. The Commission wants to ensure that these private sickness funds (mutualités/ziekenfondsen) comply with the EU insurance directives when they offer supplementary health insurance cover outside the scope of obligatory social security.
All persons subject to the Belgian compulsory health insurance system (including employees and the self-employed) have to be affiliated to a private sickness fund (one of the "mutualités" or "ziekenfondsen") or to the public mutual fund society (the CAAMI-HZIV). According to the Law of 6 August 1990, private sickness funds participate in the running of the obligatory social security system for sickness and invalidity insurance and also have to organise at least one other service in the field of social welfare, personal assistance or health.
Although their primary task is to participate in the compulsory insurance of health risks (as part of the social security system), the private sickness funds are also active in the market for complementary private health insurance, for example additional hospitalisation expenses insurance. This complementary cover is offered by the private sickness funds in competition with commercial insurance undertakings. It is a large and growing market segment.
The legal regime applicable to private sickness funds (the Act of 6 August 1990) is different from the legal regime applicable to insurance undertakings. The private sickness funds are not subject to the same type of control and prudential rules.
The Commission considers that the First and Third Non-Life Insurance Directives (Council Directives 73/239/EEC 1 and 92/49/EEC 2 ) are applicable to the Belgian private sickness funds to the extent that those funds are offering complementary health insurance in the market. The Commission is also of the view that the Belgian legislation applicable to private sickness funds (the Act of 6 August 1990) has not correctly and completely implemented the provisions of the above Directives, as far as the sickness funds' complementary health insurance activities are concerned.
The Commission does not call into question the role of the private sickness funds in the statutory health insurance scheme; nor does it question the way private sickness funds are set up and regulated as far as the provision of statutory health insurance is concerned. This is a matter which falls outside the scope of harmonised EU insurance legislation.
With regard to the sickness funds' activities in the complementary health insurance market, the Commission is not seeking to prevent the private sickness funds from offering such cover. However, the Commission believes that such activities must be conducted in accordance with the pertinent provisions of the First and Third Non-Life Directives because these offer better guarantees for policyholders and their insured relatives, in particular in the form or more stringent solvency requirements.
The Commission had therefore requested Belgium to amend the rules governing the operation of the private sickness funds in the field of supplementary health insurance cover to bring them into line with EU law. In the wake of Belgium's continued failure to do so the Commission has decided to refer the case to the ECJ.
The latest information on infringement proceedings concerning all Member States can be found at:
First Council Directive (73/239/EEC) of 24 July 1973 on the coordination of laws, Regulations and administrative provisions relating to the taking-up and pursuit of the business of direct insurance other than life assurance, OJ L 228, 16.8.1973, p.3.
Council Directive 92/49/EEC of 18 June 1992 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and amending Directives 73/239/EEC and 88/357/EEC (third non-life insurance Directive), OJ L 228, 11.8.1992, p.1.