Insurance in the single market - update
01 January 2012
28 October 2018
Test Achats update bulletin.
On 13 January 2012, the European Commission published in Official Journal C11, "Guidelines on the application of Council Directive 2004/113 to insurance, in the light of the judgment of the Court of Justice of the European Union in Case C-236/09 (Test-Achats)".
Article 5 of Council Directive 2004/113, implementing the principle of equal treatment between men and women in the access to and supply of goods and services regulates the use of actuarial factors related to sex in the provision of insurance and other related financial services.
Article 5(1) provides that, for new contracts concluded after 21 December 2007 (the date the directive came into effect) the use of sex as an actuarial factor in the calculation of premiums and benefits must not result in differences in individuals' premiums and benefits (the "unisex rule").
Article 5(2) provides for derogation from this rule by allowing Member States to maintain proportionate differences in individuals' premiums and benefits where the use of sex is a determining factor in the assessment of risk based on relevant and accurate actuarial and statistical data.
In a judgment delivered on 1 March 2011 (the "Test-Achats ruling") the Court of Justice (CJEU) declared Article 5(2) of the directive invalid after a transitional period which will end on 21 December 2012.
The Court argued that, by enabling Member States to maintain without temporal limitation an exemption from the unisex rule laid down in Article 5(1), Article 5(2) runs counter to achievement of the objective of equal treatment between men and women in relation to the calculation of insurance premiums and benefits, which is the purpose of the directive as defined by the legislature in the insurance field. It is therefore incompatible with Articles 21 and 23 of the Charter of Fundamental Rights of the European Union.
All Member States currently allow gender differentiation for at least one type of insurance. In particular, in all Member States, insurers are allowed to use sex as a risk-rating factor in life insurance.
The Test-Achats ruling will therefore have implications across the EU and the present guidelines aim to facilitate compliance with the ruling at national level. The Commission's position is without prejudice to any interpretation the CJEU may give to Article 5 in the future.
Among other points, the Commission stresses that Article 5(1) applies only to new contracts, that there are certain gender-related insurance practices which remain possible and that it "would like to encourage a competitive and innovative industry such as the insurance sector to make the necessary adjustments and offer attractive unisex products to consumers without an unjustified impact on the overall price levels".
An Annex to the Guidelines includes examples of gender-related practices which remain possible after the Test-Achats ruling (in respect of life and health underwriting).
This document is believed to be accurate but is not intended as a basis of knowledge upon which advice can be given. Neither the author (personal or corporate), the CII group, local institute or Society, or any of the officers or employees of those organisations accept any responsibility for any loss occasioned to any person acting or refraining from action as a result of the data or opinions included in this material. Opinions expressed are those of the author or authors and not necessarily those of the CII group, local institutes, or Societies.