Axa loses before the BGH – this is how insured people are now checking their claims

BGH makes judgment

Possible additional payment: These insured persons should check their contract

A clause allowed Axa to reduce the daily sick pay after the contract was concluded. However, this practice has now been stopped by the Federal Court of Justice – even an improved clause is no longer valid.

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 ruled on this and thus upheld a lawsuit brought by the North Rhine-Westphalia Consumer Center.

The case now being heard has a long history. The BGH had already struck down a clause from a daily sickness benefit insurer in 2016. This said: If the policyholder’s net income falls, the insurance company can reduce the daily sickness benefit and the premium.

However, the clauses that had been declared invalid were subsequently exchanged by the insurers for a clause with 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 sticking to the contract without new regulations would represent an unreasonable hardship. However, this was not the case here, which means that the clauses in the contractual provisions of the Axa daily sickness benefit insurance become ineffective if they became part of the contract by replacing the clause.

According to Rita Reichard, insurance specialist at the North Rhine-Westphalia consumer center, the ruling goes beyond Axa health insurance. “The judgment must also be observed by all other daily sickness benefit insurers who have inserted a new regulation into their general terms and conditions due to the ineffectiveness of the previous provision.”

Insured people should now check possible claims, advises Reichard. If a reduced daily sickness benefit is currently being paid out due to incapacity 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. “The majority of current daily sick pay contracts are likely to be affected by the ineffective clause replacement,” suspects Reichard.

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.