The EU Directive on implementing the principle of equal treatment between men and women in the access to and supply of goods and services (Directive) guarantees an equal treatment for men and women in the field of insurance services. However, it provides for an exception to this principle in Article 5(2), with the possibility for Member States to permit differences in treatment between women and men based on actuarial data and reliable statistics which are updated regularly and available to the public. This exception was introduced as during the time of the adoption of the Directive, the use of actuarial factors related to sex was very widespread in the insurance sector.
The applicants in this case considered that the Belgian law implementing the derogation to be contrary to the principle of equality between men and women.
Question referred to the CJEU by the national court
Is the Article 5(2) of the Directive compatible with the principle of equality and non-discrimination enshrined in the EU law?
The Court reminded that the Charter of Fundamental Rights of the European Union and the Treaty of the European Union prohibit any discrimination on grounds of sex and require equality between men and women to be ensured in all areas.
It agreed that there was a necessity to provide for transitional period for the sector when the Directive was adopted, therefore at that time the Article 5(2) could have been compatible with the EU law. However, as the Directive does not provide the end date of such treatment, it creates the risk that the derogation from the equal treatment between men and women persists indefinitely.
Accordingly, the Court ruled that derogation from the principle of equal treatment between men and women in the field of insurance, provided for by this provision, was unlawful in so far as this derogation was not subject to a time limit.