In a judgement issued by the Court of Justice of the European Union on 1 March 2011, the Court considers that the considerations made in terms of gender of the insured individual as a risk factor in insurance contracts, constitute discrimination according to EU law. Following this Court decision, the rule of unisex premiums and benefits in insurance contracts will apply with effect from 21 December 2012.

This judgement of the Court of Justice of the European Union rules on case C-236/09, initiated by an action brought by the Association belge des Consommateurs Test-Achats ASBL and two individuals before the Belgian Constitutional Court for annulment of the Belgian law transposing Directive 2004/113/EC1 prohibits all discrimination based on sex in the access to and supply of goods and services.

Within that action, the Belgian court asked the Court of Justice to assess the validity of the derogation provided for in the Directive in the light of higher-ranking legal rules and, in particular, in the light of the principle of equality for men and women enshrined in EU law.

An exception to the Directive on discrimination which cannot be prolongued indefinitely

In its judgement, the Court of Justice states that, in the adoption of the Directive, EU legislature provided in the text that the differences in premiums and benefits arising from the use of sex as a factor in the calculation should be abolished by 21 December 2007 at the latest. However, as the use of actuarial factors related to sex was widespread in the provision of insurance services, it was permissible for the legislature to implement the rule of unisex premiums and benefits gradually, with appropriate transitional periods. According to the Directive itself, the legal text does not establish the length of time during which those differences may continue to be applied, and therefore Member States which have made use of the option would be permitted to allow insurers to apply the unequal treatment without any temporal limitation.

The Court of Justice therefore considers that there is a risk that EU law may permit the derogation from the equal treatment of men and women, provided for by the Directive, to persist indefinitely. A provision which thus enables the Member States in question to maintain without temporal limitation an exemption from the rule of unisex premiums and benefits works against the achievement of the objective of equal treatment between men and women and must be considered to be invalid upon the expiry of an appropriate transitional period.

Consequently, the Court has ruled that, in the insurance services sector, the derogation from the general rule of unisex premiums and benefits is invalid with effect from 21 December 2012.