A step towards equality between men and women in the insurance sector
The Advocate General’s opinion regarding the use of sex as a risk factor in insurance contracts
The Advocate General Juliane Kokott, in an opinion regarding case C-236/09, suggested that it is not compatible with EU fundamental rights for insurance companies to taking into account the sex of a person when calculating premiums and benefits for insurance contracts. The Advocate General concluded that the use of risk factors based on sex in connection with insurance premiums and benefits is incompatible with the principle of equal treatment for men and women under European Union law. She proposed that the Court of Justice should declare Article 5(2) in Directive 2004/113 to be invalid.
Read the Advocate General’s opinion
The judgment of the Court of Justice of the European Union in case C-236/09
The case was referred to the Court of Justice of the European Union (CJEU) by the Belgian Constitutional Court and in substance asking whether Article 5(2) of Directive 2004/113 (the ‘Gender Goods and Services Directive’) allowing an exemption from the rule of unisex premiums and benefits in the insurance and related financial sectors is valid in light of the principle of equal treatment for women and men.
The Court observed that it was permissible for the EU legislature to implement the rule of unisex premiums and benefits gradually, with appropriate transitional periods. However, it noted that the Directive did not specify the length of time during which the differences in premiums may continue to be applied and therefore Member States that made use of the exemption may allow insurers to apply unequal treatment without any temporal limitation.
The Court found that such a provision in the Directive works against the achievement of the objective of equal treatment between women and men and is also incompatible with the EU Charter of Fundamental Rights.
Accordingly the Court in its judgment published on 1 March ruled that ‘Article 5(2) of Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services is invalid with effect from 21 December 2012’.
Read the Judgment of the Court in case C-236/09
Implications of the CJEU’s judgment
On 28 March 2011 Equinet will organise a high-level legal seminar in Brussels. At this occasion representatives of the concerned parties in this case will review and discuss the implication of this CJEU’s judgment.
To read the seminar programme and register interest, please click here.
Related documents and reading
In 2010, 14% of complaints received by the Institute’s freephone number concerned the field of insurance. This trend (between 10% and 14% of the total number of their complaints) has been maintained since 2007.
Director of the Institute, Michel Pasteel, stated “We are convinced that this decision reinforces the principle of non discrimination and its implementation accross all fields of law, including the insurance industry”.
1. In the first case (Gisela Rosenbladt v Oellerking Gebäudereinigungsges. mbH; C-45/09) the Court examined whether the automatic termination of an employment contract on reaching retirement age is lawful as in Germany, the Law on equal treatment (Allgemeines Gleichbehandlungsgesetz) provides that clauses on automatic termination of employment contracts on the ground that an employee has reached retirement age may escape the prohibition on discrimination on grounds of age. Under the German legislation, the power to adopt such clauses may be entrusted to the social partners and implemented by a collective agreement.
The Court in its decision held that Directive 2000/78 does not preclude clauses on automatic termination of employment contracts on the ground that the employee has reached the age of retirement such as that laid down in Germany by the collective agreement for employees in the commercial cleaning sector.
2. In the second case (Ingeniørforeningen i Danmark acting on behalf of Ole Andersen v Region Syddanmark; C-499/08) the Court examined a Danish law granting a severance allowance to workers who have been employed in the same undertaking for at least 12 years and the fact, that this allowance is not paid to workers who, on termination of the employment relationship, may draw an old-age pension under an occupational pension scheme even if the person concerned intends to continue working.
The Court in its decision held that the law does pursue a legitimate aim (to facilitate the move to a new employment and to ensure that employees do not claim both the severance allowance and an old-age pension) and as such, in principle, it can be objectively justified. However, by precluding payment of the severance allowance to workers who, although eligible for an old-age pension from their employer, none the less intend to waive their right to such a pension temporarily in order to continue to work, the legislation goes beyond what is necessary to achieve the social policy objectives pursued by that provision, and is not justified.
(1st July 2010)
Workers given leave from work or transferred to another job because of pregnancy are entitled to their basic monthly pay and the supplementary allowances attached to their occupational status
They cannot, on the other hand, claim the allowances and supplements which are intended to compensate for the disadvantages related to the performance of specific tasks in particular circumstances, where they do not actually perform those tasks
Susanne Gassmayr worked before her pregnancy as a junior hospital doctor at the University of Graz. In addition to her basic pay, she received an allowance for on-call duty at the workplace for extra hours that she worked. She stopped working during her pregnancy, on the basis of a medical certificate stating that continuing to work was likely to endanger her life or health or that of her child, and then took maternity leave.
Since Austrian law excludes the payment of the on-call duty allowance to persons who are not actually performing on-call duty, Ms Gassmayr was refused that allowance during the period when she was not working.
In the other case, Sanna Maria Parviainen worked before her pregnancy as a purser for the airline Finnair. A substantial part of her pay was made up of supplementary allowances attached to her seniority or intended to compensate for the specific disadvantages connected with the organisation of working time in the air transport sector.
On becoming pregnant, she was temporarily transferred to a ground job corresponding to office work, and she occupied that position until her maternity leave began. Following that transfer, her monthly pay was reduced, in particular because she no longer received the allowances for being a purser.
Both women brought judicial proceedings against their employers on the ground that their remuneration had been reduced during their pregnancy or maternity leave.
The Court found that, during the temporary transfer to another job or the leave from work during their pregnancy and maternity leave, both Ms Gassmayr and Ms Parviainen were no longer able to perform the duties which had been entrusted to them before their pregnancies. The Court finds that the on-call duty allowance paid to Ms Gassmayr and certain supplementary allowances received by Ms Parviainen constitute components of their remuneration which are dependent on the performance of specific functions in particular circumstances and are intended to compensate for the disadvantages related to those functions. The payment of that allowance and those supplementary allowances may therefore be conditional on the pregnant worker actually performing specific duties in return.
The Court none the less states that a pregnant worker who is granted leave from work or temporarily transferred to another job because of her pregnancy must be entitled to remuneration consisting of her basic monthly pay and the pay components and supplementary allowances relating to her occupational status, such as those relating to her seniority, length of service and professional qualifications. Also, the remuneration for the worker temporarily transferred to another job cannot in any event be less than that paid to workers occupying that job.
Moreover, the Court stated that the Pregnant Workers Directive only indicates the minimum standards therefore Member States are free to provide a higher level of protection.
Read the judgments: