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