Einde inhoudsopgave
Remedies for infringements of EU law in legal relationships between private parties (LBF vol. 18) 2019/5.2.2.1
5.2.2.1 The case of Test-Achats
mr. I.V. Aronstein, datum 01-09-2019
- Datum
01-09-2019
- Auteur
mr. I.V. Aronstein
- JCDI
JCDI:ADS141501:1
- Vakgebied(en)
EU-recht / Algemeen
Burgerlijk procesrecht / Algemeen
Voetnoten
Voetnoten
For a study on the effects of invalid directives on national law, see Vandamme 2005, who demonstrates that those effects are particularly a ‘national affair’.
CJ 1 March 2011, Case C-236/09 (Test-Achats) concerning 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).
According to Article 5(2) Directive Member States may deviate from the unisex rule when they can ensure that underlying actuarial and statistical data on which the calculations of certain categories of risks are based, are reliable, regularly updated and available to the public. Further, Article 5(2) Directive requires Member States to re-examine the justification for each exemption after five years, taking into account the most recent actuarial data and statistics as well as a report by the Commission. Also: Recital 19 of the Preamble to the Directive.
Recital 18 of the Preamble to the Directive states: “in order to ensure equal treatment between men and women, the use of gender as an actuarial factor should not result in differences in individuals’ premiums and benefits”.
CJ 8 April 2014, Joined Cases C‑‑293/12 and C‑‑594/12 (Digital Rights), concerning Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks (amending Directive 2002/58/EC) (OJ 2006 L 105, p. 54).
CJ 8 April 2014, Joined Cases C‑‑293/12 and C‑‑594/12 (Digital Rights), para. 65.
Cf. Reich 2013a, pp. 276-277. On the effects of invalidity relevant to this case: Vandamme 2005, pp. 60, 66-67, 123-125, 205-206, 219-220 and Chapter 5.
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”).
CJ 1 March 2011, Case C-236/09 (Test-Achats), para. 11.
This provision stated that the European Union “is to respect fundamental rights as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, as general principles of Community law”. In the Lisbon Treaty Article 6 TEU was rephrased.
CJ 1 March 2011, Case C-236/09 (Test-Achats), para. 14.
229. On the basis of Articles 263 and 264 TFEU, the Court of Justice can declare a legislative act of the European Union invalid.1 In 2011 the Court of Justice declared the invalidity of Article 5(2) of the Directive implementing the principle of equal treatment between men and women in the access to and supply of goods and services.2 According to the Court of Justice Article 5(2), which allowed derogations from this unisex rule for an indefinite period of time3, was incoherent with the objective of the Directive – inter alia the application of unisex rules on premiums and benefits in the insurance services sector4 – and with Articles 21 and 23 Charter. Further, in 2014, the so-called Data Retention Directive was declared invalid in its entirety in the notorious Digital Rights case.5 The Court held that the Directive entails “a wide-ranging and particularly serious interference with the fundamental rights to respect for private life and to the protection of personal data, without that interference being limited to what is strictly necessary”.6 In both cases the respective directives had already been transposed by Member States. The invalidity of the directives had an impact on the validity of the implementation measures and consequently potentially also on the horizontal legal relationships that relied upon the implementation measures.7Test-Achats serves as a model to illustrate this scenario.
230. In Test-Achats, a Belgian consumers’ association – the Association belge des Consommateurs Test-Achats– and two individuals brought an action for annulment before the Cour constitutionnelle, claiming the annulment of the Belgian law transposing the Directive on equal treatment between men and women in the access to and supply of goods and services.8 By way of implementation, the first paragraph of the new Article 10 of the Belgian Law reads:
“[...] a direct proportionate distinction may be drawn on the basis of gender for the purposes of calculating insurance premiums and benefits where sex is a determining factor in the assessment of risk on the basis of relevant and accurate actuarial and statistical data. That derogation shall apply only to life assurance contracts (...).”9
According to the applicants, the Belgian provision transposing Article 5(2) Directive clashes with the principle of equality between men and women, as it allows gender-based discrimination. Since this concerns a question on the validity of the Directive too, the Courconstitutionnelle referred preliminary questions to the Court of Justice, primarily asking about the Directive’s compatibility with the former Article 6(2) TEU10 and the general principle of equality and non-discrimination.11