Equal Treatment through Discrimination
To date, the “Unisex Directive“ (2004/113/EC) allowed for sex-differentiated insurance premiums and benefits “where the use of sex is a determining factor in the assessment of risk based on relevant and accurate actuarial and statistical data”. On 1 March 2011, the European Court of Justice held that this was not in line with the EU Charter of Fundamental Rights.
The judgment sets out the application of gender-neutral insurance tariffs. However, the ECJ ignores the fact that there are indeed varying gender-specific risks such as the prostate cancer risk of men. Treating the unequal equally, itself constitutes an infringement of the obligation to discriminate and therewith of the EU Charter of Fundamental Rights.