Use of gender in insurance

On 1 March 2011, the European Court of Justice (ECJ) gave its judgment in the “Test-Achats case”, ruling that, in the insurance services sector, the derogation from the general rule of unisex premiums and benefits was invalid with effect from 21 December 2012. This derogation was foreseen in the “Gender Equality Directive” (Directive 2004/113/EC implementing the principle of equal treatment between men and women in the access to and supply of goods and services). The ruling also applies to life insurance.

European Institutions’ follow-up

After the judgment, follow-up measures included the European Commission's Interpretative Guidelines (2011), a European Parliament's report on the implementation of the Directive (2013), an EIOPA report on the implementation of the Directive (2014) and the European Commission’s report on the implementation of the Directive - including on the implementation of the Test-Achats ruling into national law and insurance practice (2015). With regard to the implementation of the ruling, BIPAR stated in different consultation papers that the national legislation seemed to be in place and that there is broad awareness of the issue within the BIPAR membership.

In March 2017, the European Parliament adopted an own-initiative resolution on the implementation of the Directive, including the “Test-Achats” aspects. Amongst others, it welcomed the decision of some Member States to go beyond the scope of the ruling by extending the unisex rule to other types of insurance and pensions, including occupational pension schemes.

In August 2017, the European Commission published a follow-up statement to the Parliament’s resolution, setting out its response to requests and providing an overview of action it took or intended to take.

  • Concerning the implementation of the Test-Achats ruling, the Commission states that no breach of EU law has been found. The Commission will remain vigilant in following the evolution of the insurance market in order to detect any unjustified rise in prices attributed to the ruling, including in the light of the tools that are available under competition law in the event of alleged anti-competitive conduct.
  • Concerning the application of the unisex principle to all pension pillars, the Commission will assess whether amendments to the gender-differentiated conditions to occupational pensions are necessary in order to ensure the comprehensive application of the unisex rule in all pillars of the pension system, whether voluntary, occupational or statutory.

Link to Equal Treatment Directive

Similar wording such as the controversial opt-out for insurance is to be found in the Commission's proposed "Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation". It states that in the provision of financial services, Member States may permit proportionate differences in treatment where, for the product in question, the use of age or disability is a key factor in the assessment of risk, based on relevant and accurate actuarial or statistical data. The "Equal Treatment Directive" has, however, already been blocked in the Council for several years.

On 8 June, the Bulgarian Presidency issued a progress report on the Directive. For the time being, all Member States’ delegations have maintained general scrutiny reservations on the proposal. In view of the approaching 10th anniversary of the presentation of the proposal, the Presidency gave MS the opportunity for a debate on potential ways to overcome the persisting deadlock in the Council discussions, and to reflect in particular on the aim, the scope and the economic impact of the proposed Directive. Almost all reaffirmed their support for the aim of the proposed Directive. In its progress report, the Presidency stated that: “Despite the broad support for the objectives of the proposed Directive, technical work and further political discussions are needed before the required unanimity can be reached in the Council.”

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