Goods and services (Directive 2004/113)

• Author: Thomasberger, Martina
• Pages: 47-48

47

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Following the CJEU C-236/09 ruling in the case of Test-Achats, the legislator repealed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

https://www.equalitylaw.eu/downloads/4573-gender-equality-and-the-collaborative-economy-pdf-721-kb.