The European Court now has the perfect legal excuse to grab more power – the Charter of Fundamental Rights, which goes even further than the older post-war European Convention on Human Rights … It has even used the charter to increase the price of insurance for women.
Michael Gove, justice secretary, in a speech on April 19 at the Vote Leave offices in London.
Gove claims that the European Court of Justice (ECJ) had used the EU Charter of Fundamental Rights (the EU Charter) “to increase the price of insurance for women”. The ECJ, however, cannot make decisions about the price of insurance and it did not do so in this case. It is common practice to charge different premiums to men and women based on risk assessments, for example because women are seen as safer drivers. But this practice also happens in other types of insurance such as life or health.
The Case C-236/09, which Gove refers to in footnotes to his speech, is known as Test-Achats because of the Belgian consumer association who brought the case. The ECJ was asked by the Belgian Constitutional Court to consider whether discrimination in the price of insurance on the basis of sex is contrary to the principle of equal treatment between men and women.
Under EU law the price of insurance cannot be different on the basis of sex. Yet, EU law allowed for an exception permitting such differences where sex is a determining factor in the assessment of risk. Test-Achats challenged the lawfulness of this exception, arguing that it went against the objective of EU law to combat discrimination based on sex.
In its 2011 ruling, the ECJ noted that by applying the exception, there was a risk that insurers were indefinitely permitted to discriminate in the price of insurance, for instance by charging men more for insurance than women.
The ECJ recalled that under Articles 21 and 23 of the EU Charter, respectively, any discrimination based on sex is prohibited and equality between men and women must be ensured in all areas of EU activity. It therefore ruled that the exception was a violation of the principle of equal treatment. From December 21, 2012, insurance companies could not charge different prices for men and women. In the UK, this was introduced by a 2012 amendment to the Equality Act 2010.
Insurance companies have to comply with the ECJ’s ruling in the Test-Achats case. The effect may be that some insurance companies could choose to increase the price of insurance for women in order to prevent discrimination against men – but it is misleading to suggest that the decision to do so (rather than lowering the cost of insurance for men) was dictated by the ECJ itself.
Evidence of the impact of the ruling in the UK is also limited. To take the example of car insurance, a study by the insurance website GoCompare, based on 7m car rental quotes between November 2012 and November 2013, found that there had been an overall £146 “reduction in premiums for men and women”. It reported that only women aged between 17 and 20 had seen a rise, by £9, but that overall, women’s premiums dropped £59.
Under the principle of equal treatment, similar situations must be treated in a similar manner, while different situations must be treated differently. The application of equal treatment between men and women by the ECJ has led to a strengthening of the protection of women in many areas, such as equal pay for equal work and the protection of pregnant workers.
Guaranteeing equal treatment may allow for positive discrimination if it is necessary in order to eliminate inequalities which prevent the effective enjoyment of equal treatment. But such measures cannot result in discrimination against men. For example, UK legislation recently increased the pension age for women to make it the same as for men, long after the UN Human Rights Committee had already determined that discrimination against men in accessing state pensions was prohibited, as contrary to the principle of non-discrimination.
The ECJ did not use the EU Charter to increase the price of insurance for women, although its ruling may have caused some adjustments in insurance industry pricing. On the contrary, the court’s ruling in Test-Achats constitutes another step on the long fight for equality between the sexes in which the ECJ has played a leading role – a consequence of which is that men cannot be discriminated against.
Tamara Hervey, Jean Monnet Professor of European Law, University of Sheffield
Non-discrimination between women and men is controversial. One controversial area is who gets to decide: courts or legislatures?
In a democracy under the rule of law, there is a balance. As this fact check explains, in EU law, both the courts (the ECJ and national courts) and the legislature have each driven legal developments. This legislature includes the Council, made up of the heads of governments of member states, the directly elected European Parliament, and the European Commission, the EU’s executive body.
But ultimately, governments have agreed to be bound by EU law – which means respecting the rulings of the ECJ, just as our government respects the rulings of the Supreme Court in the UK. If the ECJ overreaches, the governments of the member states can step in and change the rules. This has happened, for instance when the ECJ brought non-discrimination into pension provision during the 1990s. The EU Treaties were amended to make clear that the ECJ rulings applied only for the future, so that pensions funds could adjust their discriminatory policies over time. Constitutionally, the ECJ cannot “grab” power in the way Gove implies.
Across over 40 years of EU equality law, the direction of travel promotes the human right to non-discrimination: sometimes to the benefit of men, but often to the benefit of women, the traditionally worse-off group.
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