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In a case stated from the Belgian Constitutional Court, the Grand Chamber of the European Court of Justice has rendered invalid from December 21 2012 Article 5(2) of Council Directive 2004/113/EC.

The Directive was designed to implement the principle of equal treatment between men and women in the access to and supply of goods and services; however, Article 5(2) allows states to derogate from the principle of equal treatment between men and women in the instance of insurance premiums and benefits where the difference is proportionate and where the use of sex as a determining factor in the assessment of risk is based on relevant, accurate and regularly updated actuarial and statistical data. Article 5(2) also requires states, which opted for the derogation, to review the decision every five years while taking account of the Commission’s reports on the issue. However, the Directive is silent as to the length of time for which states can continue to apply Article 5(2).

The Court noted that Article 2 of the Treaty establishing the European Community (TEU) provides that promoting equality is one of the Community’s essential tasks, while Article 3(2) TEU requires the Community to eliminate inequalities and to promote equality between men and women in all its activities. Similarly, Articles 21 and 23 of the Charter of Fundamental Rights of the European Union (the Charter) prohibit any discrimination on grounds of sex and require equality between men and women to be ensured at all times. The Court also noted that Directive 2004/113 referred to these provisions and that its stated purpose was to put into effect the principle of equal treatment between men and women in the area of the supply of goods and services in general (although, not altering specific protection provided in other legislation) and, in particular, in the area of insurance and related financial services premiums and benefits as per Article 5(1).

The Court stated that Article 5(2) of the Directive could permit the derogation from the equal treatment of men and women to persist indefinitely and by enabling the Member States to maintain without temporal limitation an exemption from the rule of unisex premiums and benefits, Article 5(2) works against the achievement of the objective of equal treatment between men and women, which is the purpose of Directive 2004/113 and is incompatible with Article 21 and 23 of the Charter.

The Court then concluded that the provision is invalid upon expiry of a transitional period and set the date as December 21 2012 as to when Article 5(2) would become invalid.