ASSOCIATION BELGE DES CONSOMMATEURS TEST-ACHATS ASBL

Case C-236/09, European Court of Justice, 1 March 2011

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 of 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. The European Court of Justice, affirming the reasoning of Advocate General Kokott held that use of actuarial factors based on sex is incompatible with the principle of equal treatment for men and women, and article 5(2) of Directive 2004/113/EC should be declared invalid with effect from 31 December 2012.