Insurance field – Respect without exception of the so called “unisex” rule – 24/01/2012

On the last 13/01/2012 has been published the Information of the European Commission on the guidelines for the application of the Directive 2004/113/EC (that implements the principle of equal treatment between men and women in the access to and supply of goods and services), in the light of the so called “unisex” rule.

In fact, in the judgement delivered on 01/03/2011 (in case C-236/09 – Test/Achats) the European Court of Justice, with specific reference to the insurance field, declared conflicting with the EU law the art. 5.2. of the said Directive, according to which the Member States could decide to permit, without temporal limitation, proportionate differences in individuals' premiums and benefits where the use of sex was a determining factor in the assessment of risks. Therefore, the Court of Justice declared the said article invalid with effect from 21/12/2012 because contrary to the EU law on equal treatment between men and women.

Then, since the European Commission noticed that all the Member States currently allow gender differentiation for at least one type of insurance (life insurance) and that, therefore, the said decision “will have implications in all Member States”, the Commission itself considered opportune providing some guidelines on this matter.

The European Commission therefore indicated, in principle, that “As from 21 December 2012, the unisex rule…must be applied without any possible exception in relation to the calculation of individuals’ premiums and benefits in new contracts” and, in particular, it provided clarifications also towards which contracts the decision of the Court of Justice shall have influence and with which extent.

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