Brussels, 28/02/2011 (Agence Europe) - In a ruling issued on Tuesday 1 March 2011 in Case C-236/09, the European Court of Justice renders invalid from 21 December 2012 the exemption from the ban on taking gender into consideration when calculating insurance premiums and policies. It says that the unlimited continuation of this exemption (in other words, allowing gender differences for insurance policies) contravenes the aim of gender equality between men and women and the exemption will, therefore, no longer be allowed after a suitable transition period (21 December 2012).
EU Directive 2004/113/EEC on fair treatment for men and women in accessing goods and services bans any form of sexual discrimination when it comes to acquiring goods and services. Article 5, paragraph 1 says that differences in insurance premiums and insurance policies that use gender as a risk factor must be abolished by 21 December 2007, but Article 5§2 allowed member states that allowed gender differences in risk factor calculations at the time when the directive came into force (December 2007) “to permit exemptions from the rule of unisex premiums and benefits, so long as they can ensure that the underlying actuarial and statistical data on which the calculations are based are reliable, regularly updated and available to the public”. This exemption aimed to prevent a sudden change in the market when the directive came into force (the use of actuarial and statistical gender information is very widespread for the provision of insurance contracts, mortgages and the like) but it was due to be re-examined five years after 21 December 2007 by means of a Commission report.
Although it transposed the directive in a law that came into force in May 2007, Belgium introduced the exemption in a law dated 21 December 2007 for life insurance policies. The Belgian consumer association “Test Achats” and two individuals challenged the exception at Belgium's constitutional court, which asked the Court of Justice whether the exemption complied with gender equality and non-discrimination under Article 6, paragraph 2, of the European Union Treaty.
In its ruling, the Court of Justice points out that the directive does not mention the duration of exemptions for the calculation of insurance policies and premiums and member states making use of the derogation are allowed, therefore, to permit insurance companies to apply different standards without any time limit. In order to prevent the derogation being extended indefinitely under EU law, the Court of Justice decided to apply a time limit for the proper duration of the transition period.
European Commission Vice-President Viviane Reding, said: “Today is an important moment for gender equality in the European Union. This is an important step towards clarifying the fundamental right of gender equality under EU law. Today's ruling also underlines the power and importance of our Charter of Fundamental Rights. It has the same legal value as our EU Treaties”. She said the Commission would be closely examining the ruling's implications for wider EU law and the provision of goods and services, consumer affairs and insurance policies.
As expected, the ruling is seen in a very poor light by the European Insurance and Reinsurance Federation. British Conservatives at the EP see it as encouraging young drivers to be irresponsible, now that they will have to be treated the same for insurance purposes and insurance payments as women who are better drivers. (F.G./transl.fl)