C-240/09 Lesoochranarske zoskupenie: moving in mysterious ways

Art. 9.3 of the Aarhus Convention(1) is a mystery. Where Art. 9.2 of the Aarhus Convetion already provides the public concerned(2) with a wide access to justice, Art. 9.3 seems to go even further. It reads as follows:
"In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment."
What in the world does this mean?

The Lesoochranarske zoskupenie case
The EU Court of Justice was faced with a preliminary reference lodged by Slovakia's Supreme Court. The Supreme Court was in its turned faced with actions lodged by the NGO Lesoochranarske zoskupenie who sought a review of derogations from the protection of inter alia the brown bear, issued by the Ministry of Environment. The question was: can the NGO derived locus standi directly from Art. 9.3 of the Aarhus Convention.
The answer offered by the EU Court of Justice is a mystery.
The Court dealt rather extensively with the issue of a direct effect of a provision of an international treaty, such as the one at hand, but failed to say much on the content of the provision itself. Or, did it?

Direct effect
In this regard, it may be interesting to note that the Court reached the same conclusion as GA Sharpston did in her opinion, but took a completely different route to reach that conclusion. GA Sharpston claimed there can be no issue of direct effect in the Union law, for the Community has not legislated in the sphere covered by Article 9.3 (Directive 2003/35/EC(3) implemented Art. 9.2 and 9.4, but not Art. 9.3 of the Aarhus Convention). The Court, on the other hand, was of the view that the direct effect of a provision such as Art. 9.3 of the Aarhus Convention is not a priori excluded, for "a specific issue which has not yet been subject to EU legislation may fall within the scope of EU law if it relates to a field covered in large measure by it" (para 40). Having said that, the Court went on to reach the same conclusion as GA Sharpston, albeit for different reasons: "It must be held that the provisions of Article 9(3) of the Aarhus Convention do not contain any clear and precise obligation capable of directly regulating the legal position of individuals. Since only members of the public who meet the criteria, if any, laid down by national law are entitled to exercise the rights provided for in Article 9(3), that provision is subject, in its implementation or effects, to the adoption of a subsequent measure." (para 45).
But where there is no direct effect, there can always be "indirect effect". And the Court found it indeed. The way it did so deserves to be quoted in full:
46 However, it must be observed that those provisions, although drafted in broad terms, are intended to ensure effective environmental protection.
47 In the absence of EU rules governing the matter, it is for the domestic legal system of each Member State to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law, in this case the Habitats Directive, since the Member States are responsible for ensuring that those rights are effectively protected in each case (see, in particular, Case C‑268/06 Impact [2008] ECR I‑2483, paragraphs 44 and 45).
48 On that basis, as is apparent from well-established case-law, the detailed procedural rules governing actions for safeguarding an individual’s rights under EU law must be no less favourable than those governing similar domestic actions (principle of equivalence) and must not make it in practice impossible or excessively difficult to exercise rights conferred by EU law (principle of effectiveness) (Impact, paragraph 46 and the case-law cited).
49 Therefore, if the effective protection of EU environmental law is not to be undermined, it is inconceivable that Article 9(3) of the Aarhus Convention be interpreted in such a way as to make it in practice impossible or excessively difficult to exercise rights conferred by EU law.
50 It follows that, in so far as concerns a species protected by EU law, and in particular the Habitats Directive, it is for the national court, in order to ensure effective judicial protection in the fields covered by EU environmental law, to interpret its national law in a way which, to the fullest extent possible, is consistent with the objectives laid down in Article 9(3) of the Aarhus Convention.
51 Therefore, it is for the referring court to interpret, to the fullest extent possible, the procedural rules relating to the conditions to be met in order to bring administrative or judicial proceedings in accordance with the objectives of Article 9(3) of the Aarhus Convention and the objective of effective judicial protection of the rights conferred by EU law, so as to enable an environmental protection organisation, such as the zoskupenie, to challenge before a court a decision taken following administrative proceedings liable to be contrary to EU environmental law (see, to that effect, Case C‑432/05 Unibet [2007] ECR I‑2271, paragraph 44, and Impact, paragraph 54).

What next?
It will be interesting to see what Slovakia's Supreme Court will do next. The wish of the EU Court of Justice does not seem to leave any room for doubt, however: GIVE IT TO THEM!

By the way
The question one might ask oneself in the context of the national proceedings at issue is: why did the NGO claim locus standi on the basis of (rather unclear) Art. 9.3, instead of making use of (much clearer) Art. 9.2 of the Aarhus Convetion? Yet another mystery...

(1) UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention)
(2) Art. 2.5 of the Aarhus Convention defines the term as "the public affected or likely to be affected by, or having an interest in, the environmental decision-making; for the purposes of this definition, non-governmental organizations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest." Under Art. 9.2, this public concern shall have access to justice provided they have sufficient interest or (alternatively) maintain impairment of a right. The latter requirement is deemed fulfilled by the NGOs. As a result, the NGOs enjoy a priveleged position: they are automatically considered to be part of the public concerned and they are automatically considered to have the right of access to justice.
(3) Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC

C-264/09 Commission v. Slovakia: let bygones be bygones

A surprising judgment looming on the horizon? In C-264/09, GA Jääskinen suggest the Court should dismiss the action lodged by the Commission and that already is a rarity in infringement proceedings. The dispute rests in a conflict between Directive 2003/54/ES (concerning common rules for the internal market in electricity and repealing Directive 96/92/EC) and an agreement on the promotion and reciprocal protection of investments concluded between Slovakia and Switzerland prior to 1 May 2004 (Slovakia's accession to the EU). The issue is a private-law contract concluded in 1997 which provided a Swiss company with priority access to the line (Lemesany-Krosno line from Poland to Slovakia) for a defined and non-renewable period of 16 years.
Does this private-law contract (by virtue of the pre-accession bilateral investment agreement) prevail over Slovakia's obligations under Articles 9 and 20 of Directive 2003/54. GA Jääskinen say: YES! ("such an obligation, concluded before the entry into force of the Treaty, cannot be affected by the Treaty, and as such Slovakia cannot be held to be in breach of its obligations under Articles 9 and 20 of Directive 2003/54", para 108).
The interesting part of his opinion is the one dealing with Art. 307 TEC according to which "the rights and obligations arising from agreements concluded before 1 January 1958 or, for acceding States, before the date of their accession, between one or more Member States on the one hand, and one or more third countries on the other, shall not be affected by the provisions of this Treaty" (para 1), but at the same time "to the extent that such agreements are not compatible with this Treaty, the Member State or States concerned shall take all appropriate steps to eliminate the incompatibilities established. Member States shall, where necessary, assist each other to this end and shall, where appropriate, adopt a common attitude." (para 2).
GA Jääskinen focused on paragraph 1, as "the Commission has not pleaded Article 307(2) EC". In the field of Art. 307(1) TEC, the GA had no doubts: "there is an international obligation within the meaning of Article 307(1) EC and that Slovakia cannot force SEPS not to follow the terms of the Contract without infringing its obligations under the Investment Protection Agreement" (para 107; the analysis on Art. 307 TEC starts with para 68).
A heavy blow to the Commission and its general (hostile) approach to the issue of pre-accession bilateral investment agreements? Let us wait for the Court.
The funny flipside of the coin is that (as a friend from Slovakia pointed out, talking about the "intra-EU" pre-accession investment agreements) the new Member States might not be that unhappy with the Commission's (hostile) approach, given the result of several arbitration proceedings (which turned out to be rather burdensome for their state budgets). But this, of course, is another story.

C-399/09 Landtová: about it, but without it...

There is a saying that goes back to 1938, the year in which the Munich Pact was concluded. The Pact was signed by Germany, France, the United Kingdom and Italy and resulted in annexation of parts o the territory of Czechoslovakia by Germany. The saying goes: about us, without us! It clearly questions democratic legitimacy of decisions taken by someone to the detriment of someone else without (at least) having heard that someone else.
This seems to be the problem of the Landtová case(1). Ultimately, the "accused" is the case-law of the Czech Republic's Constitutional Court, yet there is no-one in the proceedings who would defend it. The referring court (Supreme Administrative Court of the Czech Republic) itself has doubts and, in fact, used (or abused?) the preliminary reference as a tool to (possibly) strike down a rule established by the Constitutional Court which the referring court has defied for some time. The respondent in the main proceedings is of the same opinion. The Czech Government likewise.
Landtová has the interest in defending the Constitutional Court's case-law, but, looking at the opinion of the GA Villalón, her voice does not seem to be audible.
And the Constitutional Court itself is not party to the proceedings.
About it, without it...

(1) See below a detailed analysis of the opinion of the GA Villalón in the case.

House of Lords on the EU Court of Justice

The Justice and Institutions Sub-Committee of the European Committee of the House of Lords published some interesting paperwork on the functioning of the Court of Justice of the European Union. It is all available here: http://www.parliament.uk/business/committees/committees-a-z/lords-select/eu-law-and-institutions-sub-committee-e/publications/

C-567/10 Inter-Environnement Bruxelles and Others: strategic environmental assessment also in case of revocation of a plan?

The Constitutional Court of Belgium sent the following question to Luxembourg(1):
"Must the definition of 'plans and programmes' in Article 2(a) of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment be interpreted as excluding from the scope of that directive a procedure for the total or partial repeal of a plan such as that applicable to a 'plan particulier d'affectation du sol' (specific land-use plan), provided for in Articles 58 to 63 of the Code bruxellois de l'Aménagement du Territoire (Brussels Town and Country Planning Code)?"

The answer is not obvious as the SEA Directive(2) does not speak expressly of revocation or repeal of a plan or programme, but does include "any modifications to them" in the definition of the notion(3). This could obviously include a total revocation (after all, that is also a "modification"), and certainly a partial revocation (as that leaves part of the plan or program in force). On the other hand, the idea behind the SEA Directive (and environmental impact assessment in general) is to make sure that before "something" is adopted and put to life, the potential environmental effects of that "something" are assessed so that the "something" is adopted and put to life in a manner that is as environmentally-friendly as possible. If a plan or programme is revoked, nothing is put to life, i.e. there can be no environmental effects.

Or, can there be?

It seems that at least one European court thinks so. In the so-called Cala Homes judgment of 10 November 2010(4), Mr Justice Sales of the UK's High Court of Justice (Queen's Bench Division, Administrative Court) said this (para 62):
All the existing Regional Strategies were made the subject of environmental assessment before they were adopted, no doubt because of the practical impact they would inevitably have by setting part of the framework for decision-making in planning cases. I can see no sound basis for the contention (…) that revocation of Regional Strategies does not equally require at least consideration under Regulation 9 whether similar detailed environmental assessment is required. The revocation of a Regional Strategy may have as profound practical implications for planning decisions as its adoption in the first place.

Let us see what the EU Court of Justice has to say.


(1) The preliminary questions submitted by the Constitutional Court were published in OJ C 63 from 26.02.2011, p.22.
(2) Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment.
(3) Článek 2 písm. a).
(4) Case No: CO/8474/2010.

C-399/09 Landtova: Make Love No War!

On 3 March 2011, Advocate General Villalón presented his opinion in C-399/09 Landtova, a highly controversial case in the Czech Republic, as it involves the Supreme Administrative Court revolting against the Constitutional Court (and its establised case-law).

Background

When Czechoslovakia fell apart by the end of 1992 and was succeeded by the Czech Republic and Slovakia, the two countries decided (in a bilateral agreement) to take account of the "federation time" for the purposed of counting the pension in the following way: where, by the end of 1992, a person worked for an employer based in the Czech Republic, the "federation time" was deemed to be "Czech time" and vice versa. Landtova is a Czech national who, by the end of 1992, worked for an employer based in Slovakia, meaning that her "federation time" is considered to be "Slovak time". As a result, her pension is lower than it would have been if she had benefited from the "Czech time".

When faced with applicants like Landtova, the Constitutional Court ruled that this was contrary to the Constitution (the Charter of Fundamental Rights and Freedoms, to be more precise) and required that such applicants should be treated as if they worked for an employer based in the Czech Republic by the end of 1992, and there pensions should accordingly be increased to the appropriate level (so that the Czechs with Slovak-based employers are not discriminated against as opposed to the Czechs with Czech-based employers).

The Supreme Administrative Court repeatedly disagreed with the Constitutional Court and, finally, sent the case to Luxembourg, taking the view that the rule "created" by the Counstitutional Court runs counter to Regulation no 1408/71 and to the ban on discrimination.

Say what I should say

Advocate General (AG) took the view that the rule concerned is not incompatible with Regulation no 1408/71, but is discriminatory.

Regarding Regulation no 1408/71, AG was rather quick to conclude that the rule concered does not interfere with the provisions on how to count a pension of a migrating person (as contained in the Regulation and in the agreement concluded between the Czech Republic and Slovakia in 19992). For a simple reason: the rule concerned comes only after the said provision have been applied.

il convient de noter que le complément auquel peuvent prétendre les ressortissants tchèques résidant dans leur pays n’est pas une prestation calculée à la liquidation de la prestation générale, mais après celle‑ci. En d’autres termes, quiconque bénéficie d’une prestation soumise au règlement n° 1408/71 et à la convention tchéco‑slovaque doit, en premier lieu, s’adresser aux autorités désignées dans cette réglementation et calculer le montant correspondant, conformément aux dispositions pertinentes. La question de l’éventuel droit au complément de prestation, tel qu’il résulte de la jurisprudence de l’Ústavní soud, ne se pose qu’une fois cette opération réalisée. Il s’agit, par conséquent, d’un complément de prestation au sens strict ou, en d’autres termes, d’une révision à la hausse du montant de la prestation, qui n’a pas pour but d’altérer la méthode de calcul, mais la situation juridique du bénéficiaire. Ce complément de prestation n’est au demeurant pas accordé d’office, mais à la demande de l’intéressé, car il s’agit d’un droit accessoire accompagnant la prestation générale.

This, I think, is reasonable. After all, the purpose of Regulation no 1408/71 is precisely to make sure that "people are not given less" (so that they would not be put at disadvantage because of the fact that they decided to move freely around the Union). If they are "given more", no problem...

Regarding discrimination, AG was again quick to conclude that the rule concerned is incompatible with the ban on discrimination as it is limited to Czech nationals (who reside in the Czech Republic). It might be interesting to note here that AG seems to regret that no party to the proceedings really tried to defend the discriminatory rule (Nous estimons par conséquent que, en l’absence d’autres arguments apportés au dossier, le champ d’application personnel assigné au complément de prestation en cause constitue une discrimination dépourvue de justification objective et raisonnable.)

And that is when it starts to be really interesting. Starting from para 53 (under the title "Les conséquences d’une déclaration de violation du principe de non‑discrimination de l’Union sur la décision devant être prise par la juridiction de renvoi"), AG explains at length what the conclusion that there has been discrimination is to mean. According to AG, where discrimination is established, the basic rule is to make sure that the disadvantaged persons are given the same advantages as the advantaged persons (un nivellement «par le haut»), until the Member States amends the situation itself (be it through un nivellement «par le bas»). The problem here was that Landtova is not a victim of discrimination (she is at risk of being discriminated against on the national level, but this is obviously irelevant from the EU perspective), but (potentially at least) belongs to the group of the persons put at advantage (by the rule "created" by the Constitutional Court). In her case, un nivellement "par le bas" would be possible, but AG apparently tries to avoid that:

Ce qu’il convient de faire en l’espèce est à la fois plus modeste et moins usuel: il s’agit, en effet, d’éviter que la constatation du caractère discriminatoire de la disposition nationale ait pour effet immédiat de justifier la suppression, dans le cas concret, de l’avantage que la loi reconnaît à la personne qui relève du champ d’application subjectif de cette disposition. Tout cela ne s’applique bien entendu qu’en attendant que la République tchèque mette en place une règlementation générale en la matière, suivant les procédures législatives ou constitutionnelles que prévoit son ordre juridique.


This is reflected in the following way in the proposed response to the second preliminary questions itself:
 
Les articles 3 et 10 du règlement n° 1408/71, interprétés à la lumière de l’article 39 CE, doivent être interprétés en ce sens qu’ils s’opposent à l’octroi d’un complément de prestation de sécurité sociale, avec les caractéristiques susmentionnées, aux seuls ressortissants tchèques qui résident sur le territoire de la République tchèque. Cependant, dans les circonstances particulières de l’espèce, la réponse à la question précédente ne saurait servir de fondement aux prétentions de la CSSA dans le cadre de la procédure au principal.
 
My impression is that AG does everything to avoid the situation where the Constitutional Court would be faced with the delicated idea of having to abandon its own (established) case-law for its incompatibility with the EU law.
 
Well, let us see what the Court has to say on the matter.

New comitology: is it necessarily a bad thing?

In the article titled "Commission accused of power-grab under new EU rules", published on euobserver.com*, Daniel Gueguen criticizes heavily the new comitology, as introduced by the Lisbon Treaty. The criticism is as follows:

Through ratification of the EU's Lisbon Treaty, member states handed greater control over hundreds of daily decisions such as food labeling and trade-protection measures to the commission, Daniel Gueguen, a leading public affairs consultant, told EUobserver.
"The reason why the new system will be worse is its increasing complexity. The commission gets more power to the detriment of member states and lobbyists," said Mr Guéguen, the author of a recent book on the subject.
Asked whether the move amounted to an intentional power-grab by the commission, Mr Guéguen said: "There is no doubt. It's not official but in practice yes. They are the only people who have the time to understand the complexity of the issues. The European Parliament may think it is getting more power but in practice it will not."

Is this criticism justified? I would say: to a certain extent. Much will depend on how the practice will unfold. The European Parliament, the Council and the Member States do retain powers of control vis-a-vis the Commission (see below) and it will be up to them to use these powers effectively so that these powers do not remain "on paper".

Comitology after Lisbon

The Lisbon Treaty brought a revolution in the field of comitology (i.e. the rules governing the adoption of implementing legislation by the Commission on the basis of legislation adopted by the European Parliament and the Council (or, as the case may be, the Council itself). Article 202 TEC is gone and so is the Comitology Decision (1999/468/EC, as amended by 2006/512/EC**). The basis of the (now) old comitology was the committees composed of Member States representatives; in principle, the committees had to be consulted on every piece of implementing legislation. In certain cases, depending on the procedure, the Council was drawn into the game. Still, the Commission was always the principal player. For instance, in the regulatory procedure, qualified majority against or at least blocking minority against within the committee was the only way to prevent the Commission from adopting a measure (in which case the measure was forwarded to the Council and, again, the Commission was barred from adopting the measure only in the case of qualified majority against within the Council).

The Lisbon Treaty entails the following changes:

First of all, the field covered by the Comitology Decision (which laid down a set of procedures to be followed whenever the Commission is conferred the power to adopt implementing legislation) has been split in two: delegated acts (art. 290 TFEU) and implementing acts (art. 291 TFEU). There is a logic behind the two categories: delegated acts are intended to cover cases where the Commission is conferred the legislative power of the European Parliament and the Council (and where the Commission is, one might say, allowed to play the role of the legislator), while implementing acts are said to serve pure implementation.***

The essential elements of the procedure for the adoption of delegated acts are set out in the Treaty on the functioning of the EU itself and each time the European Parliament and the Council (or, as the case may be, the Council alone) adopt a legislative act, a number of provisions in the act need to be devoted to the description of the procedure to be followed when a delegated act is to be adopted on the basis of the legislative act****. As a rule, the procedure for the adoption of a delegated act will be as follows: the Commission adopts a delegated act, the act is forwarded to the European Parliament and the Council who can oppose the act (for whatever reason); if they don't, the act enters into force (if they do, back to square no 1). Surprisingly (at least for someone who looks at things through the glasses of the old comitology), the Treaty fails to speak of committees (the "basis-basis" of the old comitology). Member States managed to force the Commission into a committment to continue to use the committees whenever a delegated act is under preparation, but the truth is the role of the committees will be different (advisory, indicative, nothing more)*****. For this reason, there are opinions that "comitology" might no longer be the right world to describe the system as a whole.

Under art. 291 TFEU (implementing acts), an act similar to the old Comitology Decision was adopted: a Comitology Regulation******. The Regulation provides for two basic procedures (advisory procedure, examination procedure) that, in essence, follow the logic of the old comitology: the basis is the committees composed of Member States representatives. On the other hand, the Regulation provides for no role of the Council. In fact, the original proposal presented by the Commission envisaged a one-stage comitology only, so that the procedure would always be over after the proposed act is dealt with within a committee (and, in the examination procedure, the Commission would only be barred from adopting the implementing act if there was a qualified majority within the committee against). The negotiations within the Council added a second stage to that stage: in specified cases (qualified majority against and, sometimes, no opinion), the procedure will involve a so-called appeal committee. The Commission will then be barred from adopting the implementing act if there was qualified majority against (also) in the appeal committee. The Regulation also provides for a certain role of the European Parliament and the Council (art. 11), but this role can easilly be identified as marginal (one of the institutions can raise an ultra vires objection, yet such an objection is in no way binding on the Commission)*******.

In other words, the Commission is indeed in a powerful position (as the "owner" of the conferred powers), but its powers are not unlimited. The Member States (within the committees), the Council (i.e. the Member States within the Council) and the European Parliament (i.e. the citizens of the Member States) have powers of control and it is for them to use them where appropriate (and to know how to use them), so that the Commission, in reality (which can sometimes be complicated), does not become a true "comitology monarch".

Note: The account of the new comitology is very simplistic. An entire book would be necessary to describe all the (hidden) chambers and modalities.

* http://euobserver.com/9/31895
** The Comitology Decision is not completely dead, as, in particular, the regulatory procedure with scrutiny (art. 5a) remains applicable for indefinite future (i.e. until the legislative acts that contain references to this procedure are aligned with the new system). But this is the only exception (of significance), the old procedures have been replaced by the new procedures as of 1 March 2011.
*** It might be rather difficult to determine whether a particular act is of delegated or implementing nature. For instance, the European Parliament is reported to maintain that any act of general scope would be a delegated act (as a result of which, the category of implementing acts would be limited to individual acts). I would suggest that the category of delegated acts should be limited to the cases where the Commission acts as a legislator and should exclude the cases where the legislator exhausted its will to such an extent that the Commission is reduced to a mechanical implementation of that will.
**** For one example of this, see Regulation (EU) No 438/2010 of the European Parliament and of the Council, which introduced new articles 19a to 19d into the Regulation (EC) No 998/2003 on the animal health requirements applicable to the non- commercial movement of pet animals.
***** The said committment is contained in the Commission Communication of 9 December 2009,
COM(2009) 673 final, titled "Implementation of Article 290 of the Treaty on the Functioning of the European Union". That Communication details the intentions of the Commission and it also contains templates to be introduced into legislative acts for the purposes of setting out the procedure for the adoption of delegated acts. The Communication is to be supplemented by a Common Understanding between the European Parliament and the Council, but this is yet to be adopted.
****** Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers.
******* This power is a legacy of the Comitology Decision, which provided for this ultra vires objection in favour of the European Parliament (art. 8).

C-236/09 Association Belge des Consommateurs Test-Achats and Others: men are from Mars... and so are women!

The Court of Justice of the EU delivered an interesting judgment on 1 March 2011. Rather controversial I would say. The fact that the Court of Justice found a provision of a legislative act to be invalid is a big issue in itself. What I find interesting is the way the Court reached this conclusion and also how easily it put on the coat of the legislator once again. But of course, it is always easy to criticize...

The issue

The provision at issue was Article 5.2 of Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services. Article 5.1 prohibits "the use of sex as a factor in the calculation of premiums and benefits for the purposes of insurance and related financial services shall not result in differences in individuals’ premiums and benefits". Article 5.2, however, allows an exception from that rule:
2. Notwithstanding paragraph 1, 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.

The Court

The Court started with conceding that the principle of equality for men and women is an objective to be achieved progressively so that transitional periods or derogations of limited scope are permissible (see in particular paragraphs 20 to 23 of the judgment).
Regarding the case at hand, the Court noted, however, that "given that Directive 2004/113 is silent as to the length of time during which those differences may continue to be applied, Member States which have made use of the option are permitted to allow insurers to apply the unequal treatment without any temporal limitation" (paragraph 26).
As to the substance itself, the Court rejected the argument of the Council that "the option provided for in Article 5(2) of Directive 2004/113 is intended merely to make it possible not to treat different situations in the same way" (paragraph 27). Interesting is the way it did so:
28 The Court has consistently held 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 such treatment is objectively justified (see Case C‑127/07 Arcelor Atlantique et Lorraine and Others [2008] ECR I‑9895, paragraph 23).
29 In that regard, it should be pointed out that the comparability of situations must be assessed in the light of the subject-matter and purpose of the EU measure which makes the distinction in question (see, to that effect, Arcelor Atlantique et Lorraine and Others, paragraph 26). In the present case, that distinction is made by Article 5(2) of Directive 2004/113.
30 It is not disputed that the purpose of Directive 2004/113 in the insurance services sector is, as is reflected in Article 5(1) of that directive, the application of unisex rules on premiums and benefits. Recital 18 to Directive 2004/113 expressly states that, in order to guarantee equal treatment between men and women, the use of sex as an actuarial factor must not result in differences in premiums and benefits for insured individuals. Recital 19 to that directive describes the option granted to Member States not to apply the rule of unisex premiums and benefits as an option to permit ‘exemptions’. Accordingly, Directive 2004/113 is based on the premiss that, for the purposes of applying the principle of equal treatment for men and women, enshrined in Articles 21 and 23 of the Charter, the respective situations of men and women with regard to insurance premiums and benefits contracted by them are comparable.
31 Accordingly, there is a risk that EU law may permit the derogation from the equal treatment of men and women, provided for in Article 5(2) of Directive 2004/113, to persist indefinitely.
32 Such a provision, which 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, which is the purpose of Directive 2004/113, and is incompatible with Articles 21 and 23 of the Charter.
Having said that, the Court put on the coat of the legislator and ruled that the provision at issue "must therefore be considered to be invalid upon the expiry of an appropriate transitional period" and identified the appropriate transitional period to be the period till 21 December 2012. How the Court arrived at that date is a small mystery, the Court fails to explain (although one can see that the inspiration must have been the last sentence of Article 5.2, according to which "Member States shall review their decision five years after 21 December 2007").

Men and women might come from the same planet after all!

By the way, the Advocate General Kokott was more explicit in this regard: "In view of social change and the accompanying loss of meaning of traditional role models, the effects of behavioural factors on a person’s health and life expectancy can no longer clearly be linked with his sex" (paragraph 63 of her opinion of 30 September 2010).

Note: Here is what one of the parties to the proceedings before the national court thinks of the judgment: http://www.test-achats.be/assurances/assurances-et-discrimination-le-principe-d-egalite-des-sexes-est-absolu-s707083.htm