## Facts

- Council Directive 2004/113/EC was enacted to implement the principle of equal treatment between men and women in access to and supply of goods and services, including insurance and related financial services.
- The Directive generally prohibited discrimination on grounds of sex in insurance but allowed Member States to grant derogations permitting differences in premiums and benefits when sex constituted a determining risk factor supported by relevant actuarial and statistical data.
- The fundamental rights at issue derived from Articles 21 and 23 of the Charter of Fundamental Rights of the European Union, guaranteeing equal treatment and non-discrimination based on sex.
- The case concerned whether Article 5(2) of Directive 2004/113/EC, permitting these derogations, was compatible with the EU principle of equal treatment.

## Issues

1. Whether Article 5(2) of Directive 2004/113/EC, permitting Member States to allow differences in insurance premiums and benefits where sex is a determining factor and justified by actuarial and statistical data, is compatible with the principle of equal treatment.
2. Whether reliance on actuarial or statistical evidence can justify sex as a determining risk factor within the framework of EU law on gender equality.
3. Whether the maintenance of such derogations by Member States undermines the right to equal treatment enshrined in the Charter of Fundamental Rights of the European Union.

## Decision

- The CJEU held that Article 5(2) of Directive 2004/113/EC allowing for sex-based differences in insurance premiums and benefits, even if based on actuarial and statistical data, is incompatible with the principle of equal treatment in EU law.
- The judgment mandated that sex could no longer be used as a factor in calculating insurance premiums and benefits, requiring the adoption of unisex pricing.
- The Court found that the right to equal treatment takes precedence over economic or statistical justifications for derogations.
- Member States could no longer maintain provisions permitting gender-based discrimination with regard to insurance.

## Legal Principles

- The principle of equal treatment between men and women is fundamental in EU law and enshrined in Articles 21 and 23 of the Charter of Fundamental Rights.
- Derogations from this principle, even if statistically justified, are impermissible where they undermine the effectiveness of equal treatment.
- Economic considerations or existing practices supported by actuarial data cannot justify sex-based discrimination in insurance.

## Conclusion

The CJEU’s judgment in Test-Achats v Council was a landmark ruling by which the Court invalidated Member States’ ability to allow sex-based actuarial distinctions in insurance under Directive 2004/113/EC, affirming the supremacy of the principle of equal treatment and requiring unisex insurance pricing throughout the EU.


Association belge des Consommateurs Test-Achats ASBL and Others v Conseil des ministres (Case C-236/09) [2011] ECR I-773