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European Commission on the implementation of the ’Gender Goods and Services Directive’

May 29th 2015

The Commission has issued a Report on the implementation of the ‘Gender Goods and Services Directive’ (Directive 2004/113/EC) following consultation with the Member States and other stakeholders, including national equality bodies and Equinet.

The report gives an overview of the most recent developments and challenges in adapting national legislations to the provisions of the Directive.

The Report highlights that the interpretation of Article 4(5), which permits the provision of goods and services exclusively or primarily to one sex if justified by the legitimate aim (e.g. protection, reasons of privacy and decency, promotion of gender equality, freedom of association, organization of sporting activities), represents the biggest challenge to national courts when ruling in cases that apply to the Directive. In conclusion the Commission makes an important reference to the role of equality bodies in implementing the Directive:

“To combat discrimination and ensure equal treatment, Member States and stakeholders have recognised that equality bodies are essential to move from "the law on paper to the law in practice" and to ensure that the legal rights are actually applied on the ground. This is the reason why the Commission, in its communication on the EU Justice agenda for 2020, highlighted the key role that equality bodies can play in ensuring effective remedies to citizens. The Commission will continue its work to ensure that equality bodies can actually and fully play this role, notably through the monitoring and enforcement of the applicable rules. It will also explore ways of clarifying the requirements concerning equality bodies under the Directive, particularly the key concepts of independence and effectiveness”.

In relation to the latest implementation developments in the Member States the Commission highlighted the following:

  • There are still challenges concerning implementation of Article 4(5), which permits the provision of goods and services exclusively or primarily to one sex if justified by a legitimate aim (e.g. protection, reasons of privacy and decency, promotion of gender equality, freedom of association, organization of sporting activities).
  • 11 Member States have sufficiently transposed the Directive in their national legislation
  • With 6 Member States, the dialogue about the implementation is on-going. The problem with implementation is mostly in restrictive understanding of goods and services applying only to an area outside private life or to consumers as recipients of services.
  • Member States have questions regarding the implementation of the Directive in cases of harassment based on gender that involves third party harasser who is not a goods and services provider, which makes liability of the provider unclear.
  • 27 Member States have implemented the CJEU ruling (Test-Achats ruling) on Article 5(2) of the Directive, which allowed differentiations between genders in relation to the calculation of insurance premiums and benefits. According to the ruling, this article is not in line with equal treatment principles and was therefore removed from the Directive.

You can find the full report here

You can find Equinet’s Report on Gender Goods and Services Directive here