5.6.3 An alternative route: disapplication?

263. National courts are obliged to disapply national legislation that falls within the scope of application of a directive and that is incompatible with the general principle prohibiting age discrimination.1 This principle is sufficient in itself to confer a right upon a private party.2 In my opinion, the general principle prohibiting gender discrimination complies with this criterion. Consequently, national legislation that is incompatible with this principle has to be disapplied, also in horizontal proceedings.Both the right to non-discrimination on account of gender and the right to non-discrimination on account of age are codified in Article 21 of the Charter. It is hard to see why the general principle of non-discrimination on account of gender – which originally is considerably more embedded in Union law than the prohibition of age discrimination – could not be invoked in horizontal proceedings to set aside national legislation that is incompatible with this principle.

Nevertheless, in the specific situation that a national provision that allows gender discrimination is adopted in accordance with the derogation provided in Article 5(2) Directive 2004/113/EC, national courts are dependent on the ruling of the Court of Justice in Test-Achats. After all, the national legislation is compatible with the derogation provided by Article 5(2) Directive, and a national court has no competence to review the legality of that provision and neither can it simply ignore the existence of Article 5(2) Directive by disapplying the particular national provision. The ruling of the Court of Justice that Article 5(2) Directive is invalid inherently has an impact on the enforceability of all national measures implementing this provision, which precise impact is dependent on the law of the Member States.3

264. In any respect, the incompatibility of Article 5(2) Directive with Article 21 Charter, means that also the national legislation that relied upon Article 5(2) Directive is incompatible with Article 21 Charter. Therefore, besides the possibility that the national measures are also declared null and void, an alternative option is that, in keeping with Kücükdeveci and Dansk Industri, the particular provisions have to be disapplied.4 This means that, in theory, insured parties5 who have been discriminated against, can choose to bring proceedings against the insurers and request the disapplication of the particular provisions. However, the question arises how the obligation upon national courts to disapply national legislation that is incompatible with Article 21 Charter relates to the transitional period adopted by the Court of Justice in Test-Achats. This question is discussed in §8.2.2.