Association Belge des Consommateurs Test-Achats ASBL and Others v Conseil des ministres.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Juhász
• ECLI: ECLI:EU:C:2011:100
• Docket Number: C-236/09
• Date: 01 March 2011
• Procedure Type: Reference for a preliminary ruling

Case C-236/09

Association belge des Consommateurs Test-Achats ASBL and Others

v

Conseil des ministres

(Reference for a preliminary ruling from the Cour constitutionnelle)

(Reference for a preliminary ruling – Fundamental rights – Combating discrimination – Equal treatment for men and women – Access to and supply of goods and services – Insurance premiums and benefits – Actuarial factors – Sex as a factor in the assessment of insurance risks – Private life assurance contracts – Directive 2004/113/EC – Article 5(2) – Derogation not subject to any temporal limitation – Charter of Fundamental Rights of the European Union – Articles 21 and 23 – Invalidity)

Summary of the Judgment

European Union law – Principles – Equal treatment – Equal treatment for men and women in the access to and supply of goods and services – Directive 2004/113 – Actuarial factors

(Council Directive 2004/113, Art. 5(2))

Article 5(2) of Directive 2004/113 implementing the principle of equal treatment between men and women in the access to and supply of goods and services is invalid with effect from 21 December 2012.

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 in the preamble 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 in the preamble 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.

Article 5(2) of Directive 2004/113, 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 the directive, and is incompatible with Articles 21 and 23 of the Charter of Fundamental Rights of the European Union. That provision must therefore be considered to be invalid upon the expiry of an appropriate transitional period.

(see paras 30, 32-34, operative part)

JUDGMENT OF THE COURT (Grand Chamber)

1 March 2011 (*)

(Reference for a preliminary ruling – Fundamental rights – Combating discrimination – Equal treatment for men and women – Access to and supply of goods and services – Insurance premiums and benefits – Actuarial factors – Sex as a factor in the assessment of insurance risks – Private life assurance contracts – Directive 2004/113/EC – Article 5(2) – Derogation not subject to any temporal limitation – Charter of Fundamental Rights of the European Union – Articles 21 and 23 – Invalidity)

In Case C‑236/09,

REFERENCE for a preliminary ruling under Article 234 EC from the Cour constitutionnelle (Belgium), made by decision of 18 June 2009, received at the Court on 29 June 2009, in the proceedings

Association belge des Consommateurs Test-Achats ASBL,

Yann van Vugt,

Charles Basselier

v

Conseil des ministres,

THE COURT (Grand Chamber),

composed of V. Skouris, President, A. Tizzano, J.N. Cunha Rodrigues, K. Lenaerts, J.-C. Bonichot and A. Arabadjiev, Presidents of Chambers, E. Juhász (Rapporteur), G. Arestis, A. Borg Barthet, M. Ilešič, L. Bay Larsen, P. Lindh and T. von Danwitz, Judges,

Advocate General: J. Kokott,

Registrar: R. Şereş, Administrator,

having regard to the written procedure and further to the hearing on 1 June 2010,

after considering the observations submitted on behalf of:

– Association belge des Consommateurs Test-Achats ASBL, Mr van Vugt and Mr Basselier, by F. Krenc, avocat,

– the Conseil des ministres, by P. Slegers, avocat,

– the Belgian Government, by L. Van den Broeck, acting as Agent, and P. Slegers, avocat,

– Ireland, by D. O’Hagan, acting as Agent, and B. Murray, BL,

– the French Government, by G. de Bergues and A. Czubinski, acting as Agents,

– the Lithuanian Government, by R. Mackevičienė, acting as Agent,

– the Finnish Government, by J. Heliskoski, acting as Agent,

– the United Kingdom Government, by I. Rao, acting as Agent, and D. Beard, Barrister,

– the Council of the European Union, by M. Veiga, F. Florindo Gijón and I. Šulce, acting as Agents,

– the European Commission, by M. Van Hoof and M. van Beek, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 30 September 2010,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the validity of 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 (OJ 2004 L 373, p. 37).

2 The reference has been made in proceedings brought by the Association belge des Consommateurs Test-Achats ASBL, Mr van Vugt and Mr Basselier against the Conseil des ministres (Council of Ministers) of the Kingdom of Belgium for annulment of the Law of 21 December 2007 which amended, as regards the treatment of gender in insurance matters, the Law of 10 May 2007 combating discrimination between men and women (Moniteur Belge of 31 December 2007, p. 66175; ‘the Law of 21 December 2007’).

Legal context

European Union (‘EU’) law

3 Directive 2004/113 was adopted on the basis of Article 13(1) EC. Recitals 1, 4, 5, 12, 15, 18 and 19 in the preamble to that directive are worded as follows:

‘(1) In accordance with Article 6 of the Treaty on European Union, the Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms and the rule of law, principles which are common to the Member States, and respects fundamental rights as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms [signed at Rome on 4 November 1950] and as they result from the constitutional traditions common to the Member States as general principles of Community law.

…

(4) Equality between men and women is a fundamental principle of the European Union. Articles 21 and 23 of the Charter of Fundamental Rights of the European Union (“the Charter”) prohibit any discrimination on grounds of sex and require equality between men and women to be ensured in all areas.

(5) Article 2 of the Treaty establishing the European Community provides that promoting such equality is one of the Community’s essential tasks. Similarly, Article 3(2) of the Treaty requires the Community to aim to eliminate inequalities and to promote equality between men and women in all...