Brussels, 15/05/2014 (Agence Europe) - An insurance body cannot decide on the amount of social benefits on the basis of the gender of the beneficiary alone, according to the conclusions of Advocate General Julianne Kokott on Thursday 15 May, in a European Court of Justice case (C-318/13) on the Finnish system used to compensate workers for accidents in the workplace.
Finnish legislation provides insurance bodies with the possibility of modifying flat rate allowances to workers as part of compensation for damages suffered in an accident at work, irrespective of gender of the employee. In this case, the amount of compensation can be increased, given that women are expected to live longer. The question addressed to the Court involves the compatibility of such differentiated treatment under Community law.
According to Kokott, such an approach in the allocation of compensation breaches EU law. Even if the possibility of differentiated treatment on the basis of gender exists, it must be based on the certainty that such treatment is appropriate and that the inequality resulting from it is necessary. Moreover, the difference in life expectancy cannot be guaranteed with sufficient certainty in every case, particularly if the only criterion taken into account is gender, as is the case in Finnish legislation, argued Kokott.
She added that discrimination based on gender is also proscribed by the Charter of Fundamental Rights of the EU, as is discrimination based on race, colour or ethnic origin. The latter examples are explicitly forbidden under social insurance law. Using life expectancy estimates can therefore not be done unless other factors are considered, such as the consequences of the accident, the place of residency, the way of life and the economic and social conditions relating specific groups of people, irrespective of gender.
The subsidiary question posed by the Court involves the responsibility of the Finnish state. Although it is up to national legal jurisdictions to assess the case, Kokott did, however, look at whether this responsibility is sufficiently described. This does not appear to be the case for several reasons: - the court is examining such a case on social security benefits for the first time; - it was only in 2011 that it explained that actuarial factors cannot be taken into account in social insurance cases; - certain directives provide the possibility of referring to factors based on gender for certain benefits. The Court ruled that there are many factors that could lead to error under Finnish legislation. (JK)