ECJ update: Ruling in the 'Test-Achats' case

2 March 2011

ECJ ruling in the 'Test-Achats' case - no exemption is allowed from the rule of unisex premiums in the insurance and related financial services

ECJ Ruling in the Test Achats case

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.

Kristina Koldinská Ph.D. from the Charles University (Prague) will reflect on the following question: Is sex an appropriate determining factor in the calculation of insurance premiums?

Jean-Paul Coteur, Association Belge des Consommateurs Test-Achats Asbl, will provide some insights into the use of insurance risks linked to sex and other discrimination grounds in the calculation of insurance premiums from an NGO perspective

Michaela Koller, Director General of the CEA-Insurers of Europe Aisbl (tbc) will present the insurers’ perspective.