Introduction

In a 2017 decision, the Athens Court of Appeal found that an insurer's refusal to provide health insurance to a homosexual and histrionic man(1) did not amount to illegal discrimination based on sexual orientation or infringe the plaintiff's personality rights. The insurer claimed that its decision was "based on medical and statistical data and on the constant practice followed by our Company in similar cases". The insurer also provided no specific relevant medical or statistical data to the court.

Moreover, the court found that a violation of the plaintiff's personality rights (protected under Article 57 of the Civil Code) had not been proven, since insurers need not sign an insurance contract with every applicant. Finally, the court decided that the absence of specific statistical data and the reference to general data did not constitute faulty behaviour on behalf of the insurer.

However, the dissenting opinion was that it was necessary to appoint specialists who could assess whether the plaintiff continued to manifest a characterological deviation (ie, histrionic personality disorder) which would have a specific impact on the insurable risk. This position was based largely on the fact that the characterisation of the man as 'histrionic' was based on an examination that had taken place several years previously by an army medical committee for specific purposes and not through the use of modern technical means. According to the dissenting opinion, if no specific characterological deviation was found, the insurer's refusal to insure the plaintiff should be considered unlawful discrimination, since homosexuality is not a medical condition and cannot influence an individual's insurability.

Facts

Several years ago, the plaintiff was exempted from military service (which is compulsory in Greece) because an army medical committee diagnosed him as "suffering from sexual identity disorder in a person with characterological deviation (histrionic)".

In August 2001 he (hereinafter, the applicant) applied for life and health insurance. According to the insurer's policy, and in the light of Article 3 of the Law on Insurance Contracts, an insurer can collect personal information from potential clients in order to decide on underwriting the risk.

The applicant had to answer a standardised questionnaire which contained general questions, one of which concerned the fulfilment of his military obligations. In the relevant question, the applicant had to provide information regarding any exemption from this compulsory military service. The applicant initially answered affirmatively, noting next to the answer the distinctive Class I-5 code for exemption from service; however, he then covered his answer with correction fluid and replied negatively.

When the insurer's employee received the applicant's questionnaire, she removed the correction fluid and saw the Class I-5 code, which meant that the applicant had been exempted from military service. She then asked the applicant to send in the relevant army certificate. The applicant complied and faxed the certificate, which indicated that he was considered unsuitable for military service as "suffering from sexual identity disorder in a person with characterological deviation (histrionic)".

The insurer then informed the applicant that his request for an insurance contract had been rejected, without any further explanation. When the applicant asked why he had been denied cover, the insurer replied that "our decision is based on medical and statistical data and on the constant practice followed by our Company in similar cases".

Data Protection Authority challenge The applicant first challenged the insurer's decision before the independent Data Protection Authority, suggesting that the insurer had illegitimately collected his sensitive personal data. The authority issued a decision ordering the insurer to pay the applicant a €60 penalty; however, the authority later revoked its decision for non-conformity with its own procedural rules.

The applicant filed another challenge, which resulted in a new decision by the authority in 2016. In those proceedings, the authority found that the insurer's processing of the applicant's personal data was legitimate, as the applicant had willingly delivered the insurer his army certificate. However, in the same decision, the authority recommended that the insurer assess applications based on facts other than army certificates.

Decision

The applicant also filed a lawsuit before the Greek courts, which was eventually brought before the Greek Supreme Court for Civil Cases. The Supreme Court annulled the court of appeal's initial judgment on the basis of inadequate legal substantiation, and remanded the case back to the court of appeal. It requested the court of appeal to re-examine the case on its merits, considering:

  • Article 5 of Law 2472/97 (which transposed Directive EC/95/46 into Greek legislation); and
  • Article 3 of the Law on Insurance Contracts.

The former reads as follows:

1. Processing of personal data will be permitted only when the data subject has given his/her consent. 2. Exceptionally, data may be processed even without such consent, only if: a) processing is necessary for the execution of a contract to which the data subject is a party or in order to take steps at the request of the data subject prior to entering into a contract… e) processing is absolutely necessary for the purposes of a legitimate interest pursued by the Controller or a third party or third parties to whom the data are communicated and on condition that such a legitimate interest evidently prevails over the rights and interests of the persons to whom the data refer and that their fundamental freedoms are not affected.

Article 3 of the Law on Insurance Contracts reads as follows:

The policyholder shall declare to the insurer at the time of the conclusion of the contract any and all information or circumstances of which he is aware, and which are objectively significant for the assessment of the risk. He shall also answer every relevant question posed by the insurer. It shall be presumed that the information and circumstances in relation to which the insurer has set clear written questions constitute the sole grounds on which the insurer based its assessment and acceptance of such risk.

By a majority two-to-one vote, the court dismissed the applicant's claim and cleared the insurer of any liability towards the applicant. The court of appeal chair had the minority vote and submitted an extensive and interesting dissenting opinion. Although the court's decision and the minority report did not pass entirely unnoticed, they failed to generate the broad debates that commentators of Greek jurisprudence enthusiastically initiate on far less interesting topics.

Minority report

The principal thoughts contained in the minority report are as follows:

  • The principle of 'non-discrimination', which secures a minimum global protection for human rights worldwide, promotes the equal treatment of human beings regardless of age, sex, ethnic origin, nationality and more.
  • Moreover, according to the judge, all kinds of discrimination are prohibited. This fundamental prohibition affects every aspect of the European law. Specifically, in Article 21(1) of the Charter of Fundamental Rights of the European Union, this prohibition is described as follows:

Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.

Further, Article 19(2) of the German General Act on Equal Treatment prohibits discriminations in the private sector – particularly in the private insurance sector. Article 20 of the German act sets out the only exception to this rule: when the premium calculation is based on actuarial and mathematical data. Statistical and actuarial data could, in fact, affect an insurer's decision and lead to gender discrimination without being illegitimate.

Directly relevant to the above is the European Court of Justice's (ECJ's) decision in Test-Achats v Conseil des Ministres.(2) In that decision, the court was asked to rule on issues arising from the implementation of Directive 2004/113/EC, which aims to promote and apply the principle of equal treatment between men and women in relation to access to and supply of goods and services. The judicial examination was focused on the dangers emerging from Article 5(1) of the directive, which aims to eliminate every kind of gender-based discrimination in the insurance sector. However, Paragraph 2 inserts a five-year postponement on the article's implementation. This postponement was re-examined by the ECJ, which decided that actuarial differences resulting in premium differentiations could not be accepted after the five-year period (ie, after 20 December 2012). As a result, Article 162(2) of Greek Law 4099/2012 provides that actuarial differences between individual premiums and benefits for insureds which have gender as the determining factor for risk assessment would be permitted only:

  • for policies created on or before 20 December 2012; and
  • for life, health, personal accident and motor liability insurance, according to the insurer's risk management policy established "on the basis of important and reliable actuarial and statistical data".

In the case at hand, the insurer's submissions failed to clearly demonstrate that it had acted lawfully in light of Article 361 of the Civil Code (freedom of contracts), as it had suggested. On the contrary, the insurer's denial of insurance coverage for the application could constitute illegal discrimination based on the applicant's sexual orientation. While the exception could have been justified by statistical or medical data, the insurer submitted no documents to the court containing medical, actuarial or statistical facts or data in support of its decision to deny coverage. Further, the insurer failed to clarify what it meant in its statement that the refusal was in accordance with its practice "in similar cases".

In brief, the denial was based on:

  • an army medical committee diagnosis (which could have been erroneous) made more than a decade before the applicant submitted his insurance application; and
  • psychiatric criteria applying to military service and not necessarily to the risk assessment of a health insurance policy.

Moreover, the minority report highlighted the potential for a divergence between the diagnosis made by the army medical committee at that time and the diagnosis that could have been reached today, in a modern hospital with specialised, duly qualified medical professionals and new medical diagnostic methods.

Most importantly, the minority report notes that homosexuality is not characterised as a medical disease by modern medicine, nor is it classified as a mental disorder or mentioned in the Diagnostic and Statistical Manual of Mental Disorders.(3) As such, a diagnosis in this regard could not be given by army medical staff, nor could it be used as the basis for the insurer's refusal.

In the dissenting judge's opinion, the applicant should have been re-examined and the court should have re-evaluated the insurer's actions based on any new information and in light of the fact that the applicant may have been unlawfully discriminated against.

Comment

Was the applicant's data legitimately processed by the insurer? In its second decision, the Data Protection Authority considered that the applicant's prompt delivery of his army certificate proved that he had consented to his personal data being used. The court pushed this further by finding that the questionnaire had stated that the applicant was giving his consent. In any case, the authority held that consent was not required, since the data subject was applying for a contract for which data processing is necessary.

Notably, had the General Data Protection Regulation (GDPR) been in force at the time, the insurer's actions would have been considered illegal under multiple GDPR articles. However, even at the time, the Data Protection Authority's first decision (in 2008), which was later voided on procedural grounds, found that the applicant's data regarding his military service was neither necessary nor conducive, as the applicant's health could be assessed only through adequate medical examination – something which the insurer did not request, instead making a decision based on the applicant's sexual orientation. Hence, the applicant's personal data was illegally processed and the fact that he had willingly provided his army certificate to the insurer was irrelevant.

Was the insurer's refusal to provide health insurance to the applicant unlawful and discriminatory? The judge, in his extensive and well-founded dissenting opinion, intelligently stopped short of finding the plaintiff's personality rights to have been violated as a result of the insurer's discriminatory behaviour, since the insurer may have incurred medical risks associated with the applicant's psychiatric condition (ie, histrionic personality disorder). The judge correctly proposed that the applicant be re-evaluated by professionals using today's psychiatric tools in order to highlight any of the insurer's hidden motives in denying health insurance to the applicant (clearly alluding to the insurer's decision being motivated by the applicant's sexual orientation).

Had the applicant applied today (in light of Law 4099/2012 and the ECJ's C-236/2009 decision), any denial of insurance which could be attributed to his sexual orientation would be illegal.

In a broader sense, the dissenting opinion, which provided a detailed analysis of the non-discrimination principle – taking into account the UN Declaration of Human Rights, the Charter of Fundamental Rights of the European Union, the European Convention of Human Rights and Montesquieu – also makes a statement about the universal principal of equality between individuals which, despite its age, appears to be more acute than ever.

Additionally, the judge considered the German legislation in this regard, Directive 2004/113/EC and the ECJ's decision in Test-Achats v Conseil des Ministres to conclude that differentiations in the insurance sector are no longer considered legitimate in the European Union.

However, it is important to remember that this prohibition on discrimination is not endorsed worldwide. For example, it was only with the enactment of the Affordable Care Act (Obamacare) that US insurers were prohibited from discriminating based on sexual orientation or gender identity when setting rates or issuing coverage. This act reduced the amount of uninsured LGBT individuals by almost half between 2013 and 2016. However, there is no way to tell how this will evolve now that Congress has repealed the individual mandate for the Affordable Care Act, with the repeal set to take full effect in 2019.

In short, in many parts of the world, life insurers have consistently been reluctant to provide health coverage to homosexuals, at least on the same terms as they provide it to heterosexuals.

For further information on this topic please contact Athanassios Lambrou at Zemberis, Markezinis, Lambrou & Associates by telephone (+30 210 363 6016) or email (athlambrou@zmlaw.gr). The Zemberis, Markezinis, Lambrou & Associates website can be accessed at www.zmlaw.gr.

Endnotes

(1) For more information on histrionic personality disorder, please click here.

(2) Decision C-236/2009.

(3) For more information on the Diagnostic and Statistical Manual of Mental Disorders, please click here.

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.