Sex Discrimination and Insurance

The Court of Justice’s decision in ASBL (C-236/09) on equalizing premiums for men and women drivers seems to have touched a raw nerve. Even the relatively sobriety of the Economist is moved to blog under the title ‘Bonkers’ and reel out quips about straight banana stories. On this occasion however the ire is largely misguided, at least as regards the Court itself. Sometimes journalists should actually read what the judgments actually say rather than what they want them to say. The old adage of fitting the facts (case) to meet the story applies here.

The Court’s judgment is in fact incredibly narrow. It merely says that the Directive on equal treatment in the supply of goods and services cannot be indefinitely delayed in its full implementation. The point is that the Directive allowed Member States to opt-out of requiring ‘unisex’ premiums for insurance contracts for a period of five years up to December 2012. The Court held, uncontroversially, that this was an absolute time limit not capable of further extension. So, by 2012, discrimination based upon gender must be eliminated in insurance contracts.
As to the issue of what this actually requires of insurers, the Court said virtually nothing. It merely referred to the text of the Directive (passed as long ago as 2004! So no shocks as to what it says):


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.

If there is a problem, it lies with the Directive, not the Court. Even here, the Court did not rule on when insurers charging different premiums or paying different benefits might amount to discrimination ‘based on sex’ (rather than life-expectancies etc). It left all that for later cases. In short, the Court did not take any bold or reckless step. The die had been cast in 2004 and it remains to be seen what the Directive actually means.
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