Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2011, published 101st ILC session (2012)

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

I. With reference to its previous comments, the Committee wishes to draw the Government’s attention to the following points.

1. Part II (Medical care), Article 16, paragraphs 2 and 3, of the Convention. With reference to its previous comments, the Committee notes that, according to the Government’s report, persons whose membership in the statutory health insurance fund ceases during a period of illness because their employment has been terminated remain insured as long as they are entitled to sickness benefit (section 192, paragraph 1(2), of the 5th Book of the Social Code). Entitlement to sickness benefit is limited to 78 weeks. Moreover, the persons whose employment has been terminated and who are receiving unemployment benefit or unemployment benefit II are covered by the statutory health insurance system, in accordance with the Fourth Act on modern labour market services of 24 December 2003. In such cases, family insurance which was in effect before the termination of employment continues for as long as the person receives unemployment benefit. Furthermore, the family members of persons receiving unemployment benefit II, who are included in the category of persons requiring insurance under section 7(3), Book II, of the Social Code, are subject to compulsory insurance if they are not covered by family insurance. In addition, the children of persons covered by family insurance are also covered by family insurance without paying contributions (section 10(1)(1) of the Act to simplify administrative procedures in social law of 21 March 2005). The Committee notes this information. With regard to persons who, following termination of employment, are entitled to neither unemployment benefit or unemployment benefit II, the Committee notes that they may join the statutory health insurance system on a voluntary basis within three months of the end of coverage, provided that they have previously been insured under the statutory scheme for a minimum period of 12 months before their coverage ended, or for a total period of 24 months in the previous five years.

The Committee understands that in practice most of the persons in the situation referred to above are covered by compulsory insurance, as sickness benefit continues to be paid for 78 weeks to a person and his/her family members even where termination of employment occurs before the expiration of the period of entitlement to sickness benefit. In addition, persons who do not receive sickness benefit, but are entitled to unemployment benefit II, and their family members, are covered by the statutory health insurance. However, it would appear from the information provided in the report that those persons whose employment is terminated and who receive neither sickness nor unemployment benefit and who are in need of medical care have to take out voluntary insurance. The Committee would be grateful if the Government would confirm whether this interpretation is correct. The Committee would also be grateful if the Government would confirm whether a person who takes out a private insurance and his/her family members are covered without a qualifying period. Please also indicate the manner in which German legislation ensures that insured persons who have worked for fewer than 12 months, those who are dismissed or leave their employment voluntarily, and who are not entitled to unemployment benefit, as well as their family members, are entitled to medical benefit for a minimum period of 26 weeks, as required by Article 16, paragraph 2, of the Convention.

2. Part III (Sickness benefit), Article 27. In its previous comments, the Committee noted that section 58 of Part V of the German Social Code provides that a funeral grant shall be paid only if the deceased person was insured on 1 January 1989 and requested the Government to provide statistical information on the number of persons covered by voluntary and compulsory insurance which provides for a funeral grant, as required under Article 27, paragraph IV, of the Convention.

According to the Government’s report, the Committee notes that the entry into force of the Act to modernize statutory health insurance of 1 January 2004 abolished the death grant. In this respect, the Committee would like to point out once again to the Government that it may wish to avail itself of the derogation provided for under Article 27, paragraph 2, of the Convention. The Committee also notes that the Government has once again not been able to provide statistical information on the number of people covered by compulsory and voluntary insurance which provides a funeral grant as required by Article 27, paragraph 2(c), and hopes the Government will be able to do so in its next report.

According to the Government’s report, sickness benefit corresponds to 70 per cent of the amount of the insured person’s regular wages and income on which social contributions are assessed. The actual percentage of net income varies from one individual to another, and the maximum benefit may correspond to 90 per cent of the insured person’s normal net income. In this connection, the Committee recalls that the conditions required by paragraph 2 of Article 27 for derogation from the provisions of paragraph 1 appear to be met as regards subparagraphs (a) and (b), since Germany has accepted Part IV of the Invalidity, Old-Age and Survivors' Benefits Convention, 1967 (No. 128), and the rate of the sickness benefit should reach that prescribed in subparagraph (b) if net amounts are counted. In these circumstances, the Committee reminds the Government that, in order to avail itself of the derogation envisaged in Article 27, paragraph 2, of the Convention, the majority of the persons protected must be covered by voluntary insurance which is supervised by the public authorities and provides a funeral grant.

II. In its previous comments, the Committee asked the Government to provide information on the following points.

1. Scope. In its previous comments, the Committee requested the Government to provide the statistical information requested under Articles 10 and 19 of the report form and, in case the Government also intended to take into account the protection resulting from a non-compulsory insurance for protected persons, to provide the information requested in the report form under Article 6.

The Committee notes that 92.2 per cent of all employees are covered by the statutory health insurance system in relation to medical care. The Government does not provide any statistical information regarding sickness benefit. However, as persons affiliated with the statutory health insurance system are covered by sickness benefit, it is assumed that the rate of coverage is the same. The Committee requests the Government to continue providing statistical information as requested under Articles 10 and 19 of the report form.

2. Cost sharing in medical costs. Taking into account the entry into force of the First Statutory Health Insurance Reform Act, the Committee asked the Government to provide detailed information on the practical implementation of the reform and its implications for Article 17 of the Convention, particularly in respect of the cost sharing by beneficiaries in medical costs.

According to the Government’s report, the entry into force of the Act to modernize statutory health insurance on 1 January 2004 modified the existing legislation on contributions (cost sharing) and exemptions. Under the new legislation, insured persons of 18 years of age and older are required to pay a “medical practice fee” of 10 euros for “out-patient” treatment which must be paid for the first visit to a doctor without referral in each quarter. In the case of “in-patient” hospital treatment, insured persons of 18 years and above are required to pay a charge of 10 euros per calendar day for a maximum of 28 days per year. In addition, insured persons are required to contribute 10 per cent of certain costs, such as medication and medical care (up to a minimum amount of 5 euros and a maximum of 10 euros, but never more than the cost of the medication). When medication and nursing care are provided at home, the patient’s contribution is 10 per cent and 10 euros per prescription. No contribution is required for children under the age of 18, apart from travel costs. The new legislation establishes limitations on cost sharing. Each insured person is required to bear up to a maximum of 2 per cent of his or her gross annual income of accommodation charges. The limitation for persons who suffer from chronic illness is 1 per cent of their annual gross income in accommodation charges. The Committee notes this information and allegations made by the German Confederation of Trade Unions (GCTU) in this respect. The Committee further notes the Government’s reply to the GCTU allegations, in which it indicates that the new cost-sharing rules are so designed as to avoid hardship for persons with small means, in particular as the cost sharing for recipients of social security and of unemployment benefit II is based on a fictional income of 345 euros in 2006.

The Committee also notes the GCTU’s allegations regarding the failure by the Government to meet its obligations under Article 2, paragraph 3(a), (b) and (c), of the Convention. In this respect, the Committee wishes to point out that Germany has not availed itself of the derogation set out in paragraph 1 of this Article and that paragraph 3(a), (b) and (c) of this Article do not therefore apply to Germany.

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

I.  With reference to its previous comments, the Committee wishes to draw the Government’s attention to the following points.

1.  Part II (Medical care), Article 16, paragraphs 2 and 3, of the Convention.  In its previous comments the Committee observed, under section 19 of Part V of the Social Code, if membership in the statutory insurance scheme ceases, entitlement to benefits shall continue for not more than one month after the termination of membership, provided that no gainful activity is exercised. Similar provision is made in section 19(3) for family members, when the family insurance ceases on the death of the insured person. The Committee recalled that under Article 16, paragraph 2, of the Convention, "where a beneficiary ceases to belong to the categories of persons protected, further entitlement to medical care for a case of sickness which started while he belonged to the said categories may be limited to a prescribed period which shall not be less than 26 weeks: Provided that the medical care shall not cease while the beneficiary continues to receive a sickness benefit". Article 16, paragraph 3, further provides that, in such cases, the duration of medical care shall be extended for prescribed diseases recognized as entailing prolonged care. The Committee therefore asked the Government to provide detailed information on the measures taken or envisaged to give full effect to these provisions of the Convention, in respect of formerly insured members who, not having subscribed to voluntary insurance, had no medical protection.

According to the Government’s report, in case the membership of the statutory health insurance ceases, the coverage remains valid as long as the persons concerned are in receipt of maternity benefit or sickness benefit for a sickness which started before the cessation of the membership of the insurance (section 192, paragraph 1(2) of the 5th Book of the Social Code). Besides, the persons concerned have also the possibility to take out voluntary health insurance or be entitled to medical care, which in theory is equivalent to that provided by the statutory insurance scheme, if they draw assistance for their subsistence in accordance with the Federal Assistance Act (sections 37 and 38 of the Federal Public Assistance Act). The Committee notes this information. It further notes that persons in receipt of unemployment benefit continue to be covered by the statutory health insurance (section 186, paragraph 2(a), of the 5th Book of the Social Code). The Committee would like the Government to confirm in its next report that in case the employment contract ceases during the sickness, the person concerned shall, in all other cases covered by paragraphs 2 and 3 of Article 16 of the Convention, continue to be entitled to medical care throughout this contingency, provided this care may be limited to a prescribed period which shall not be less than 26 weeks. Please also indicate how family members are protected in these cases.

2.  Part III (Sickness benefits), Article 27.  In its previous comments the Committee pointed out that section 58 of Part V of the Social Code, under which a funeral grant shall be paid only if the deceased person was insured at 1 January 1989, was not in conformity with paragraph 1 of Article 27 of the Convention. Having pointed out to the Government that it might avail itself of the derogation provided for under paragraph 2 of Article 27 of the Convention, the Committee requested information relating to this provision.

In this connection, the Committee notes from the information supplied by the Government in its report that the conditions required by paragraph 2 of Article 27 for derogation from the provisions of paragraph 1 appear to be met as regards subparagraphs (a) and (b), since Germany has accepted Part IV of the Invalidity, Old‑Age and Survivors’ Benefits Convention, 1967 (No. 128) and the rate of the sickness benefit should reach that prescribed in subparagraph (b) if net amounts are counted. However, the Government states that it is unable to provide statistics on the number of persons covered by voluntary insurance which provides a funeral grant, as required by subparagraph (c) of paragraph 2. The Committee nonetheless notes that, according to the Government’s estimates, the number of people who may be entitled to a funeral grant under the legislation on statutory sickness insurance is still high (61 million, i.e. approximately 85 per cent of insured persons). But this number will necessarily decline since the funeral grant applies only to persons insured at 1 January 1989. In these circumstances, the Committee hopes that the Government will not fail to continue indicating in all its future reports the number of persons covered by insurance - compulsory or voluntary - which provides for a funeral grant.

II.  The Committee also asks the Government to provide information on the following points in its next report.

1.  Scope.  Please provide the statistical information requested under Articles 10 and 19 of the report form. If the Government intends also to take into account the protection resulting from a non‑compulsory insurance for the protected persons, it is asked also to provide the information requested in the report form under Article 6.

2.  Shared medical costs.  The Committee notes the information supplied by the Government under Article 17 of the Convention, and in particular the entry into force of the First Statutory Health Insurance Reform Act (1.NOG). The Government is asked to provide detailed information on the practical implementation of the reform and its implications for Article 17 of the Convention bearing in mind that, according to the new provisions, any increase in contributions other than those connected with adjustments in the health funds’ risk management, will automatically lead to an increase in the beneficiaries’ share in medical costs.

Direct Request (CEACR) - adopted 1995, published 83rd ILC session (1996)

1. Part II (Medical care), Article 16, paragraphs 2 and 3, of the Convention. In its previous comments the Committee observed that, under section 19(2) of Part V of the Social Code, if membership in the statutory insurance scheme ceases, entitlement to benefits shall continue no longer than one month after the termination of membership, provided that no gainful activity is exercised. Similar provision is contained in section 19(3) for family members, when the family insurance ends by death of the insured person. The Committee recalled that under Article 16, paragraph 2, of the Convention, "where a beneficiary ceases to belong to the categories of persons protected, further entitlement to medical care for a case of sickness which started while he belonged to the said categories may be limited to a prescribed period which shall not be less than 26 weeks: Provided that the medical care shall not cease while the beneficiary continues to receive a sickness benefit". The Committee therefore requested the Government to supply detailed information on the measures taken or contemplated to give full effect to this provision of the Convention, as far as formerly insured members were concerned who did not have recourse to voluntary insurance and were not covered by another social security protection providing health care. The Committee also requested the Government to indicate how effect is given to Article 16, paragraph 3, of the Convention, which prescribes that, notwithstanding the provisions of paragraph 2 of the said Article, the duration of medical care shall be extended for prescribed diseases recognized as entailing prolonged care.

In reply, the Government states that section 19(2) of Part V of the Social Code serves to compensate for the difference between the interests of the joint association of statutory sickness insurance funds and the requirement for cover of the insured person who has ceased to be a member, and therefore does not infringe upon the aims of Article 16, paragraph 2, of the Convention, which seeks to prevent that the loss of membership of the group of protected persons entails the immediate loss of the right to medical care benefits. Thus, according to the Government, unemployed persons who forfeit their membership of the group of protected persons, continue to receive health care benefits for as long as they draw unemployment benefits under the Employment Promotion Act, and persons drawing regular assistance for their subsistence in accordance with the Federal Public Assistance Act, can also receive sickness benefits whose nature and scope conform to the benefits of the sickness funds. The Government considers that, together with voluntary insurance, these possibilities are to be seen as alternatives of equal value to the ongoing entitlement to benefits provided in Article 16, paragraph 2, of the Convention for a period of 26 weeks. It adds that, from this legal position, a special provision within the meaning of Article 16, paragraph 3, for prescribed diseases would not be necessary and would also not be in keeping with the system.

The Committee notes this information. It would like to emphasize that Article 16 of the Convention sets out a general principle according to which medical care shall be provided throughout the contingency (paragraph 1). However, with respect to persons who cease to belong to the protected category, it permits a derogation from this principle on conditions expressly stated in paragraphs 2 and 3. In as much as the national legislation has recourse to this authorized derogation, it should strictly abide by the terms of those paragraphs. As regards more particularly persons in receipt of a benefit under the Employment Promotion Act mentioned by the Government, the Committee notes that they are subject to compulsory insurance under section 5(2) of Part V of the Social Code and therefore do not fall into the category of persons covered by Article 16, paragraph 2, of the Convention. In light of the above, the Committee once again expresses the hope that the next report of the Government will indicate the measures taken or contemplated to ensure that the provisions of Article 16, paragraphs 2 and 3, of the Convention, are fully applied in the national legislation and practice with respect to persons who are not covered by the social security protection providing medical care, including under the Federal Public Assistance Act, and who do not contract voluntary insurance providing medical care. In addition, it would like the Government to supply the text of provisions of the Federal Public Assistance Act which provide for medical care.

2. Part III (Sickness benefits), Article 27. In its previous comments the Committee pointed out that section 58 of Part V of the Social Code, under which a funeral grant shall be paid only if the deceased person was insured at 1 January 1989, was not in conformity with paragraph 1 of Article 27 of the Convention. In its reply, the Government states that the condition of being insured as of 1 January 1989 to be entitled to funeral benefit can be considered as a "prescribed condition" within the meaning of Article 27 of the Convention. It also states that the conditions for derogation provided for under paragraph 2(b) and (c) of this Article are satisfied as, in accordance with section 47 of Part V of the Social Code, the sickness benefit amounts to 80 per cent of the normal remuneration of the insured person and there exists a large number of voluntary individual or collective supplementary death benefit insurance schemes.

The Committee notes this information. It recalls that under Article 27 of the Convention, the right to funeral benefit can be made conditional upon the fulfilment of prescribed conditions, for instance a qualifying period. Such conditions, however, shall not be such as to deprive persons who normally belong to the categories of persons protected of the right to benefit, as would be the case under section 58 of Part V of the Social Code in respect of persons who became insured after 1 January 1989. On the other hand, as regards the possibility to make use of the derogation provided for under paragraph 2 of Article 27 of the Convention, the Committee would like the Government to supply in its future reports statistical information on the number of persons covered by voluntary insurance providing a funeral grant in relation to the total number of persons insured with the statutory sickness insurance scheme after 1 January 1989.

Direct Request (CEACR) - adopted 1992, published 79th ILC session (1992)

1. Part II (Medical care). (a) Article 16, paragraph 2 of the Convention. The Committee observes that, under section 19(2) of Book V of the Social Code, if membership in the statutory insurance scheme ceases, entitlement to benefits shall continue for no longer than one month after the termination of membership, provided that no gainful activity is exercised. A similar provision is contained in section 19(3) for family members, when the family insurance ends by death of the insured person. The Committee also notes the Government's statement that a formerly insured person, whether insured directly or as a family member, has the opportunity to retain his protection in case of sickness by voluntary insurance. The Committee points out that under Article 16, paragraph 2 of the Convention, "where a beneficiary ceases to belong to the categories of persons protected, further entitlement to medical care for a case of sickness which started while he belonged to the said categories may be limited to a prescribed period which shall not be less than 26 weeks, provided that the medical care shall not cease while the beneficiary continues to receive a sickness benefit". The Committee therefore requests the Government to supply detailed information on the measures taken or contemplated to give full effect to this provision of the Convention, as far as formerly insured members are concerned who did not have recourse to voluntary insurance under section 19 of Book V of the Social Code and are not covered by another social security protection which also provides for health care; it recalls that this was the case under section 183(1) of the former Federal Insurance Code.

(b) Article 16, paragraph 3. The Committee requests the Government to state whether and under which provisions effect is given to Article 16, paragraph 3 of the Convention, which prescribes that notwithstanding the provisions of paragraphs 2 of said Article the duration of medical care shall be extended for prescribed diseases recognised as entailing prolonged care.

2. Part III (Sickness benefits), Article 27. The Committee notes that, under section 58 of Part V of the Social Code, upon the death of an insured person, a funeral grant shall be paid only if the deceased person was insured at 1 January 1989, which is not in conformity with paragraph 1 of Article 27 of the Convention. In so far as the Government wishes to avail itself of the derogation provided for under paragraph 2 of this Article, it is requested to provide detailed information, including statistics, showing that the conditions provided for under Article 27, paragraphs 2(b) and (c), are fulfilled.

Observation (CEACR) - adopted 1992, published 79th ILC session (1992)

1. The Committee notes the information supplied by the Government in its report, as well as the entry into force on 1 January 1989 of a new codification of the law on the statutory sickness insurance scheme, which was incorporated in the Social Code (Book Five (SGB V)). It also notes with satisfaction from the Government's reply to its previous comments that as a result of a ruling of the federal Constitutional Court, section 49 of Book V of the Social Code provides that the claim to sickness benefit, in so far as it exceeds the other social benefits listed therein, is not suspended. This is in conformity with Article 26 of the Convention (read together with Article 28, paragraph 1(h)).

2. The Committee draws the Government's attention to certain points which it raises in a direct request.

Direct Request (CEACR) - adopted 1987, published 74th ILC session (1987)

Article 26 of the Convention (in relation with Article 28, paragraph 1(h)). In response to the previous comments of the Committee, the Government states that entitlement to sickness benefit on a whole is suspended in accordance with section 183, paragraph 6 of the Federal Insurance Code even in cases where the sickness benefit exceeds one of the other benefits, which is not in conformity with this provision of the Convention. The Government, however, adds that the Federal Constitutional Court has before it a case relating to the constitutionality of section 183, paragraph 6 of the Federal Insurance Code and that a decision should be given next year. In these circumstances, the Committee requests the Government to communicate the text of the judgement of the Federal Constitutional Court when it has been given.