ASSOCIATION BELGE DES CONSOMMATURS TEST-ACHATS ASBL

Case C-236/09, Advocate General Kokott, 30 September 2010

Insurance (life) - Sex discrimination - Whether it is lawful for a member state to allow differential premiums and benefits based on sex - European Parliament and Council Directive 2004/113/EC, article 5(2) - Charter on Fundamental Human Rights, articles 21 and 23

Article 5(2) of European Parliament and Council Directive 2004/113/EC, on the principle of equal treatment between men and women in the access to and supply of goods and services, provides that member states may permit differences related to sex in respect of insurance premiums and benefits if sex is a determining risk factor and the differences can be substantiated by relevant and accurate actuarial and statistical data. In the present case the Belgian Constitutional Court referred to the European Court of Justice the question whether the Directive is compatible with the overriding principle of EU law, set out in article 21 of the EU Charter of Fundamental Rights, that: "Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited". As regards sex discrimination, article 23 states: "Equality between women and men must be ensured in all areas, including employment, work and pay". Belgian law adopted the wording of Directive 2004/113/EC.