Axa loses before the BGH: This is how insured people check their claims

BGH makes judgment for possible additional payment

Insured persons should check the contract

The BGH has prohibited Axa from simply replacing an invalid contractual clause. For many insured people, the judgment could mean additional payment.

Axa health insurance is not allowed to simply replace a clause that has been declared ineffective with a new one in its daily sickness benefit insurance policies. The Federal Court of Justice (BGH) has now decided this. In doing so, he upheld a lawsuit from the North Rhine-Westphalia consumer center.

The case under discussion has a long history. In 2016, the BGH had already declared a clause from a daily sickness benefit insurer to be inadmissible. This said: If the policyholder’s net income falls, the insurance company can reduce the daily sickness benefit and the premium.

Subsequently, the insurer often replaced the clause that had been declared invalid with one of similar content. This is made possible by the so-called clause replacement procedure. This includes the right for insurers to replace an ineffective clause in their general contractual conditions with new, effective regulations. However, the new clause was also objected to by the Federal Court of Justice in 2025.

The BGH has now prohibited Axa from replacing the disputed clause. Because: A replacement is only justified if it is necessary to continue the contract or if it would mean unreasonable hardship for the insurance company to continue the contract without new regulations. However, this was not the case here, which means that the clause in the contractual provisions of the Axa daily sickness benefit insurance becomes ineffective if these became part of the contract by replacing the clause.

According to Rita Reichard, insurance specialist at the North Rhine-Westphalia Consumer Center, the ruling has far-reaching consequences: The ruling also applies to all other daily sickness benefit insurance policies in comparable cases.

“The majority of current daily sick pay contracts are likely to be affected by the ineffective clause replacement,” suspects Reichard. Insured persons should therefore check possible claims. If a reduced daily sickness benefit is currently being paid out due to inability to work or has been paid out in the past, there is a right to retroactive payment of the difference, writes the consumer advice center.

However, insured persons should be aware of one thing: If the daily sickness benefit is increased again, the original contribution must also be paid again.