Association belge des Consommateurs Test-Achats ASBL and ors v Conseil des Ministres
European Union discrimination law is based on the premise that men and women must be treated equally. In Association belge des Consommateurs Test-Achats ASBL and ors v Conseil des Ministres, the European Court of Justice (ECJ) held that the same principle must apply to insurance premiums and benefits.
Basic facts
Member states have been bound by a directive since December 2007 prohibiting all discrimination based on sex in terms of goods and services, including the basis on which companies calculate insurance premiums and benefits.
However, article 5(2) of the directive allowed member states an exemption from the rule as long as they could show that the data underpinning the differential insurance calculations was reliable, up to date and publicly available. They also had to agree to review the justification for the opt out by 21 December 2012.
A Belgian consumer group brought a case arguing that the Belgian law transposing the directive should be annulled as article 5(2) was incompatible with artlcle 6(2) of the EU Treaty which states that members must “respect fundamental rights”.
Relevant law
Article 5(2) states that :”Member States may decide before 21 December 2007 to permit proportionate differences in individuals’ premiums and benefits where the use of sex is a determining factor in the assessment of risk based on relevant and accurate actuarial and statistical data.
“The Member States concerned shall inform the Commission and ensure that accurate data relevant to the use of sex as a determining actuarial factor are compiled, published and regularly updated. These Member States shall review their decision five years after 21 December 2007, taking into account the Commission report referred to in Article 16, and shall forward the results of this review to the Commission”.
ECJ decision
The ECJ agreed with the consumer group, saying that “the principle of equal treatment requires that comparable situations must not be treated differently, and different situations must not be treated in the same way, unless they can be objectively justified”.
To decide whether this situation was comparable, it had to assess the subject-matter and the purpose of the EU measure underpinning it, in this case the directive outlawing discrimination.
As the directive expressly stated that “the use of sex as an actuarial factor must not result in differences in premiums and benefits for insured individuals”, the Court concluded that the respective situations of men and women with regard to insurance premiums and benefits contracted by them were comparable.
As there was no time limit on the exemption in article 5(2), there was a risk that it could go on indefinitely. This, the Court said would work against against the achievement of the objective of equal treatment between men and women, the whole purpose of the directive.
The exemption was therefore invalid and must be abolished by the end of an appropriate transitional period which it set for 21 December 2012.