Urteil des Bundesgerichts vom 7. Mai 1998 i.S. E.Q. und P.Q. gegen Helsana Versicherungen AG (BGE 124 III 229)
Background
In the Federal Supreme Court decision summarized below the Court explained its pragmatic pluralism of methods in application to an individual case under review.
Summary
The appellants, long-standing customers of Helsana Versicherungen AG, had taken out supplementary insurance policies in 1993, the premium for which was based on their age at the time of contracting the policy. When the new Health Insurance Act came into force in 1996, the insurance company changed its schedule of benefits for the supplementary insurance. It no longer calculated premiums based on the age of the policyholder at policy conclusion but rather on the current age of the policyholder. This, in line with risk, resulted in a considerable increase of cost for the appellants. The appellants sought continued insurance coverage at their previous benefit levels taking into accont the duration of the contract. They cited as basis the wording of the new Insurance Act which obliged the health insurer to offer to policyholders contracts under the new law that afford the same or higher coverage than under the previous law, stating “the length of time of holding a policy under the previous law shall be factored into calculation of the premium.” The appellants deduced from the wording of the law that the duration of the contractual relationship under former law absolutely has to be taken into account, irrespective of whether the insurance company chose to implement under the new law a risk-based premium system or base premiums based on age at the time of concluding the contract. The insurance company, for its part, derived from the Federal Council’s record and explanations of the reasoning behind the bill that previous contractual periods were to be taken into account only under the new Act if the premium rate also factored in the age at policy conclusion. The Federal Supreme Court interpreted the above legal provision applying the following method:
“The law is to be interpreted primarily out of itself, i.e. in accordance with its wording, meaning and purpose and on the evaluations and objectives on which it is based. The interpretation of the law is to be guided by the idea that the wording alone does not constitute the legal norm but rather that the law only exists as understood and specified in application. What is desired is an objectively correct decision within the normative structure, with the aim of realizing a satisfactory result in respect of ratio legis.”
Reference was extensively made to the Federal Supreme Court decision BGE 121 III 219 (1995) E. 1d/aa p. 224 s., in which the method of interpretation was described and justified in greater detail in the context of the separation of powers. The language is difficult to translate, and the German text only is authentic. “The law must first and foremost be interpreted from within itself, i.e. in accordance with its wording, meaning and purpose and on the underlying value judgements based on a teleological method of understanding. The interpretation is to be based on the ratio legis, which the court is obliged to determine not on the basis of its own subjective values but rather in accordance with the guidelines found in the legislation. The idea of balancing inherent to separation of powers not only determines the interpretation of the law in a conventional sense. It also extends to the methods commonly used of interpretation in the process of judicial legislation. Apparently clear wording of a legal norm is either extended by analogy to a matter not addressed, or, vice-versa, not being applied to such matter by means of teleological reduction. Although the interpretation of the law is not to be decisively based upon legislative history, the interpretation nevertheless needs to focus on the intention of the legislator and underlying value judgments made as purposive interpretation of the norm under the rule of law cannot be found on its own, but needs to take recourse to the intentions of the legislator. Such intentions are to be identified by recourse to traditional means of interpretation. (…). According to modern methodological understanding, teleological reduction is a permissible act of judicial law making and not an inadmissible interference in political legislative powers (…). It is undisputed that pursuant to the rule of law, judges are bound to shape the law in line with existing legal institutions. This in itself does not fundamentally exclude judicial lawmaking. It merely marks the scope and boundaries of such efforts. The interpretation of the law must be guided by the idea that wording does not in itself amount to a norm. Norms only result from applying legislative texts to particular facts. What is required is a factually correct decision within the normative framework, aiming at a satisfactory result emanating from the ratio legis of the Act. In this process the Federal Supreme Court applies a pragmatic pluralism of methods, refusing to submit particular elements of interpretation to a hierarchical order of priority (…)”
In the above-mentioned decision on insurance premiums the Federal Supreme Court first set out the contradicting doctrinal opinions on the subject, outlining the respective understandings of the legal provision, in part without taking into account the Federal Council’s explanations of the reasoning behind the proposed law. The Court then found that Parliament had not at any stage of the legislative process expressed an opinion on the scope of the legal provision (historical interpretation). As a next step, the Federal Supreme Court outlined economic considerations, finding that even under the old law policyholders did not fund their future costs, which increase along with rising risk of illness. Therefore, there was no basis for crediting the length of time to the holder of a policy. Lastly, in light of the systematic structure of related provisions of the Act and the fact that supplementary insurance is a matter of private law (systematic interpretation), the Federal Supreme Court pointed out that an obligation to factor in previous contractual periods would run counter to the overriding objective behind the new law, which is to enable insurance companies to finance their business utilizing a system of risk-based premiums (teleological interpretation). The fact that the premium reduction would not be justiciable if the criteria do not derive from the premium tariff in the final analysis speaks in favour of the disputed provision having limited significance only. The interpretation of the legal provision led to the conclusion, based on all these considerations, that the amount of time elapsed as policyholder under the old law can only be taken into account if the insurance under the new law takes the age at the time of contracting the policy into account. That understood, the provision was not held to be meaningless. The policyholders’ appeal was accordingly rejected.