5.2.2.3 The final ruling of the Cour constitutionnelle in broad strokes

234. In the wake of the preliminary ruling delivered by the Court of Justice in Test-Achats, the Cour constitutionnelle holds that the Belgian law at stake is invalid from 21 December 2012 onwards.1 The Cour constitutionnelle considers that the constitutional and international prohibition of discrimination in general and gender-based discrimination in particular, compel the legislature to be considerably cautious in the adoption of discriminatory provisions or of provisions that allow private parties, such as insurance companies, to discriminate. Such a legislative provision is acceptable only if it is justified by a legitimate aim and by means that are relevant for this aim. The assessment of the justification is even stricter in case of – potential – gender-based discrimination.2 According to the Cour constitutionnelle the Genderwet cannot be justified.3 The provisions in the Belgian law that allow an insurance company to deviate from the prohibition of gender-based discrimination are in conflict with the principle of equal treatment of men and women as well as with the principle of non-discrimination as codified in all human rights instruments of consequence.4 As a result, the Cour constitutionnelle annuls the entire Genderwet of 21 December 2007.5

235. Following in the Court’s footsteps, the Cour constitutionnelle rules that the annulment of the Genderwet requires a transitional period by means of which the invalidity of the Genderwet is effective only from 21 December 2012 onwards.6 Unlike the Court of Justice, the Belgian court gives a brief insight into its motives to adopt a transitional period: on the one hand, the transitional period grants insurance companies time to adjust their insurance products to the new conditions resulting from the Court of Justice’s ruling in Test-Achats; on the other hand, the Cour constitutionnelle takes into consideration that the retroactive effect of annulment would in this case lead to the re-enforcement of Article 10 of the Genderwet of 10 May 2007 in which the derogation from the prohibition of gender-discrimination was restricted until 21 December 2007.7 In support of the transitional period, the Cour constitutionnelle states that “since the national legislature is given the opportunity and the time to adjust the legislation to the Court’s judgment, the legislature is also considered to be allowed to decide whether or not the prohibition to discriminate on the basis of gender in the calculation of insurance premiums and insurance benefits, on the date on which this prohibition will enter into force, will apply also to contracts that were concluded before this particular date” – i.e. whether or not the prohibition will have ex tunc effect.8