Remedies for infringements of EU law in legal relationships between private parties (LBF vol. 18) 2019/5.2.2.2:5.2.2.2 The ruling of the Court of Justice in a nutshell

Remedies for infringements of EU law in legal relationships between private parties (LBF vol. 18) 2019/5.2.2.2

5.2.2.2 The ruling of the Court of Justice in a nutshell

Deze functie is alleen te gebruiken als je bent ingelogd.Deze functie is alleen te gebruiken als je bent ingelogd.Deze functie is alleen te gebruiken als je bent ingelogd.

231. Although the applicants based their complaint upon Article 6(2) TEU, the Court of Justice argues that the validity of the Directive is to be assessed in light of Articles 21 and 23 Charter.1 Under Article 5(2) Directive, any decision to make use of the option to derogate is to be reviewed five years after 21 December 2007, account being taken of a Commission report. However, the Directive does not make the permissibility of insurers to apply unequal treatment of men and women subject to any temporal limitation.2 Due to this unlimited option of derogating from the unisex rule provided for in Article 5(2) Directive, there is a risk that Union law may indefinitely permit the derogation from equal treatment. The option to derogate from the unisex rule without any temporal limitation, sabotages the purpose of the Directive and is on that account incompatible with Articles 21 and 23 Charter.3 Consequently, the Court holds that Article 5(2) is incoherent with the Directive’s objectives and is, as a result of this incoherency, invalid.4

232. Only by way of exception does the Court of Justice limit or suspend the effect of an interpretation or a declaration of invalidity of a Union measure, that is, only in the event that the Court finds overriding considerations of legal certainty that justify such a limitation.5 Without giving insight into its reasoning, the Court concludes that “Article 5(2) of Directive 2004/113 is invalid with effect from 21 December 2012”, which according to the Court is “an appropriate transitional period”.6 In consequence, until this date the provision is valid, despite the fact that its application – conceivably – results in gender discrimination.

233. The Court’s judgment caused turmoil not only in the insurance sector, but also the press and literature – especially German literature – are scornful.7 By focussing on the coherency issues the Court de facto bypassed the substantive compatibility review of the gender discrimination allowed by Article 5(2) Directive against the general principle of equal treatment between men and women.8 Advocate General Kokott argues9 that the use of gender as a substitute criterion for other distinguishing factors in the assessment of insurance risks is of itselfin conflict with Articles 21 and 23 Charter.10 However, it cannot be derived from the judgment in Test-Achats that the Court of Justice requires unisex tariffs.

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