Inspired by the French Convention AERAS (S’Assurrer et Emprunter avec un Risque Aggravé de Santé), in 2019 the Belgian legislator has introduced the ‘right to be forgotten’ with respect to outstanding balance insurance contracts covering mortgage loans guaranteeing the purchase or the renovation of the one and only family home, as well as with respect to debt balance insurance contracts to guarantee a professional credit (Articles 61/1 -61/4 Insurance Act of 4 April 2014, as inserted by Law of 4 April 2019, Belgian State Gazette of 18 April 2019).The aim of this regulation was to facilitate access to these insurances for people who were affected by cancer in the past but have since been declared cured and have not relapsed.
This regulation on outstanding balance insurance and debt balance insurance has been amended by an Act of 30 October 2022 (Belgian State Gazette of 17 November 2022). In addition, this Act extends the right to be forgotten to disability insurance contracts covering disability in case of illness, or illness and accident as defined in Article 201, §1, 2° Insurance Act of 4 April 2014 (Articles 61/8-61/13 Insurance Act of 4 April 2014). The Belgian association of insurance companies (Assuralia) had anticipated this legal extension by adopting a code of conduct providing, under certain specific conditions, a right to be forgotten for disability insurance and guaranteed income insurance.
When applying for those insurance contracts, these persons who were or are affected by cancer, regardless of the type, must inform the insurer thereof. Under Belgian insurance contract law, this duty of disclosure is based on a system of spontaneous disclosure (Articles 58-60 Insurance Act of 4 April 2014). However, the insurer may not take this cancer into account in accessing the current state of health if a period of eight years has passed since the successful termination of the treatment and insofar as there has been no relapse or disability due to cancer within this period. If the person was younger than 21 years old at the time the cancer was diagnosed, this period is a maximum of five years. As of 1 January 2025, the term will be five years for everyone.
According to the law, a successful termination of treatment means the date on which active treatment of the cancerous condition was terminated, in the absence of a new flare-up of cancer. Consequently, the insurer may not exclude this cancer condition from the insurance contract, or refuse insurance because of this cancer condition (Articles 61/2 and 61/8 of the Insurance Act).
An important rule regarding disability insurance provides that the insurer may exclude from coverage the permanent economic and/or physiological incapacity for work and/or invalidity resulting from cancer that exists at the time the insurance contract is concluded (Article 61/9 Insurance Act), the underlying principle being that insurance cannot cover a risk which has already been realised. However, the insurer must provide the candidate policyholder or insured with a clear and comprehensible motivation for this decision. If the candidate policyholder or insured does not agree, he/she can request the insurer to send the file to the reinsurer for a re-evaluation, except when the reinsurer has already been consulted and the insurer has followed its advice. In case the reinsurer does not confirm the decision of the insurer, the latter is bound by the reinsurer’s advice.
In addition, the King has been given the power to set by Royal Decree even more favourable acceptance and pricing conditions, namely to further reduce the period of eight years (respectively five years) in function of age categories and/or the type of cancer (articles 61/3 and 61/10 Insurance Act). Moreover, other specifically defined chronic diseases could be included in the scope of the right to be forgotten, under set specific acceptance conditions and maximum additional premiums (articles 61/4 and 61/11 of the Act). Scientific studies should prove that this inclusion is objective and reasonable and in accordance with the current state of medical scientific knowledge and the insurance technique.
Regarding the outstanding balance insurance, the Royal Decree of 26 May 2019 (Belgian State Gazette 14 June 2019) has adopted two reference schedules. Annex 1 to this Royal Decree contains a reference grid listing a number of types of cancer diseases for which the term is reduced. For example, for certain types of skin cancer (taking into account specific histological types and reference stages and pre-therapeutic stages) the term of eight years is reduced to one year. Annex 2 to this Royal Decree contains a reference grid for well-defined chronic diseases, defining the term and/or maximum supplementary premiums permitted. The Federal Health Care Knowledge Centre (KCE) must evaluate the reference schedules every two years taking into account the progress in medical science and available scientific data on the relevant cancer conditions and chronic diseases. This Royal Decree has to be adapted to the aforementioned modification of the Insurance Act regarding outstanding balance insurance and to the new regulation on disability insurance.
This regulation fits in with the policy pursued by the Belgian legislator since 2007 to increase access to affordable health insurance and outstanding balance insurance for high risks by imposing upon the insurer some contractual obligation reintroducing cross-subsidisation, but without losing sight of the specificity of private insurance.
Kathleen Crommen
Lawyer – Partner
