Remedies for infringements of EU law in legal relationships between private parties (LBF vol. 18) 2019/5.2.2.5:5.2.2.5 Legislative follow-ups to Test-Achats

Remedies for infringements of EU law in legal relationships between private parties (LBF vol. 18) 2019/5.2.2.5

5.2.2.5 Legislative follow-ups to Test-Achats

Documentgegevens:

mr. I.V. Aronstein, datum 01-09-2019

Datum: 01-09-2019
Auteur: mr. I.V. Aronstein
JCDI: JCDI:ADS141467:1
Vakgebied(en): EU-recht / Algemeen
Burgerlijk procesrecht / Algemeen

239. Although all Member States had to amend their laws as a result of the Court’s ruling in Test-Achats,1 I restrict myself to a brief illustration of the amendments in Belgium and the Netherlands, which both followed the European Commission’s Guidelines.On 19 December 20122 the Belgian legislature adopted an amendment to their law.3 The Belgian law ties in with the Commission Guidelines by regulating that the unisex rule for the calculation of premiums and benefits applies to new contracts only. Notwithstanding the Genderwet, the Belgian constitutional provisions on equal treatment do not preclude the unequal treatment of particular categories of persons – e.g. men and women – as long as such unequal treatment is founded on an objective criterion and is reasonably justified. Whether such an objective criterion and reasonable justification exist, is appraised by means of a proportionality test taking into account the objectives and consequences of the particular measures as well as the relevant legal principles. The principle of equal treatment is infringed when the measure is disproportionate to its objectives.

240. In the Netherlands, the General Law on Equal Treatment (Algemene Wet Gelijke Behandeling) is the pre-eminent instrument for equal treatment regulation. Article 2(2)(a) AWGB provides that in cases in which gender is a decisive factor, distinction on the basis of gender is permitted. The Decree on Equal Treatment (Besluit Gelijke Behandeling) concretises the exceptional cases in which gender plays a decisive role.4 Formerly, Article 1(h) of the Besluit Gelijke Behandeling permitted gender discrimination in the life insurance sector.5 In the wake of the Test-Achats judgment the Dutch legislature had to amend the Besluit Gelijke Behandeling.6 The amendment, adopted in November 2012, is in line in with the approach taken by the European Commission: Article 1(h) now precludes the use of gender as a risk-relating factor in the calculation of premiums and benefits of individual life insurance contracts when: 1) the life insurance contract was agreed upon on or after 21 December 2012, 2) an insurance contract is amended on or after 21 December 2012 and both parties have expressed their consent as regards this amendment, or 3) the latest expression of consent by a party that is necessary for the conclusion of that agreement occurs as from 21 December 2012.7

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All Member States made use of the option to derogate from Article 5(1) provided in Article 5(2) Directive. At least 11 of them permitted derogations only in relation to a specific type of insurance, mostly life insurances. See Report Civic Consulting, Study on the use of age, disability, sex, religion or belief, racial or ethnic origin and sexual orientation in financial services, in particular in the insurance and banking sectors, 16 July 2010, pp. 131-132 and 140-141. Available on: < http://ec.europa.eu/social/ BlobServlet?docId=5599&langId=en >. Cf. Thiery2011b, no. 12. See for German criticism on the Test-Achats ruling for instance: Verbraucher und Recht 2011, 5. Ulbrich2011. See also Hoffmann 2012, who criticises the Commission Guidelines and argues that there are better reasons to apply the unisex rule only to contracts concluded after 21 December 2012 – and not to amendments of older contracts whatsoever.

In the preparatory documents to this law, one of the members of Parliament notes that it is rather remarkable that this law was adopted so late, since from a legal point of view, the insurance sector would now practically have only two days to adapt their calculation systems. The Minister nuances this remark by stating that during the law-making process there has been close contact with the insurance sector. Therefore, the sector is prepared and the late adoption date of this law is not exptected to cause trouble. Belgische Senaat – Plenaire vergaderingen – Donderdag 13 December 2012 – Namiddagvergadering – Handelingen 5-83, pp. 47-48.

Wet van 19 december 2012 (tot wijziging van de wet van 10 mei 2007 ter bestrijding van discriminatie tussen vrouwen en mannen wat het geslacht op het gebied van goederen en diensten en van aanvullende regelingen voor sociale zekerheid betreft), published in Belgisch Staatsblad, 25 January 2013. Preparatory documents: DOC 53 2511.

Cf. Kalkman 2011. Schols 2011, p. 66. Borgesius2012, pp. 112-115.

In all other insurance sectors, gender discrimination was already prohibited since 1994. Schols 2011, p. 66.

Borgesius2012.

Besluit van 7 November 2012 tot wijziging van het Besluit gelijke behandeling (horizonbepaling premieverschillen bij levensverzekeringen), Staatsblad 2012, 565.