Goods and services (Directive 2004/113)

AuthorThomasberger, Martina
9 Goods and services (Directive 2004/113)122
9.1 General (legal) context
9.1.1 Surveys and reports about the difficulties linked to equal access to and sup ply of
goods and services
None available.
9.1.2 Specific problems of discrimination in the online environment/digital
market/collaborative economy
No specific information available.
9.1.3 Political and societal debate
Currently not a topic.
9.2 Prohibition of direct and indirect discrimination
Paragraphs 30 to 40c of the Equal Treatment Act for the Private Sector prohibit direct and
indirect discrimination on the grounds of sex/gender in access to goods and services.
Access in this respect also covers the concept of supply.
9.3 Material scope
The wording of the material scope of Paragra ph 30 of the Eq ual Tr eatment Act for the
Private Sector concerning sex discrimination has been modelled on Art icle 3 and covers
the same scope.
9.4 Exceptions
Paragraph 30(3) of the Equal Treatment Act for the Private Sector specifies the area of
private and family life as well as the content of media and of advertising as exceptions in
accordance with Article 3(3) of Directive 2004/113.
9.5 Justification of differences in treatment
Paragraph 33 of the Equal Treatment Act for the Private Sector states that providing goods,
services and housing mainly fo r persons of one sex is a justifiable exception if this is a
proportionate means to a legitimate goal. This section was introduced to ensure that
gender-separate services, e.g. gender-segregated entrance times into public pools, could
not be challenged based on sex/gender equality. So far there is no p ertaining case law.
9.6 Actuarial factors
Following the CJEU C-236/09 ruling in the case of Test-Achats, the legislator repealed
Paragraph 9(2), (3) and (4) of the Insurance Supervision Act
(Versicherungsaufsichtsgesetz), which contained specific provisions for the use of sex -
specific actuarial factors and ad ded the new Section (2) with the wording: ‘The factor of
sex may not lead to different premiums or benefits f or men and women’. The cha nges
were introduced without a widespread national debate.
122 See, for example, Caracciolo di Torella, E. and McLellan, B. (2018), Gender equality and the collaborative
economy, European network of legal experts in gender equality and non-discrimination, available at

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