The application of the Charter of Fundamental Rights to the Equality Directives
Association belge des Consommateurs Test_Achats ASBL Case C-236/09 1 March 2011
Facts:
A reference was made by the Belgian constitutional court to the Court of Justice of the EU (CJEU) on the interpretation of the exception in the Gender Directive on goods and services 2004/113/EC concerning insurance. Article 5(2) permitted differences in the insurance premiums and benefits between men and women where the use of sex is a ‘determining factor in the assessment of risk based on relevant and accurate actuarial and statistical data’. Any exceptions were required to be reviewed within five years (by 21 December 2012). The claimant argued that the provision in the Belgian national law that implemented Directive 2004/113/EC and provided for an exception pursuant to Article 5(2) was contrary to the principle of equality between men and women in the Charter.
Findings of the Court:
The Court relied on Articles 21 and 23 of the Charter of Fundamental Rights, which state that any discrimination based on sex is prohibited and that equality between men and women must be ensured in all areas. The CJEU held that Article 5(2) was incompatible with Articles 21 and 23 of the Charter as there was no time limit on the exception permitting difference in the insurance premiums between men and women. As a result the Court found that Article 5(2) was invalid at the expiry of the transition period for the exception (21 December 2012).
Implications:
All Member States that implemented the exception in the Gender Goods and Services Directive 2004/113/EC with domestic legislation have needed to review whether it is necessary to repeal or amend that legislation.