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The principle of equal treatment for men and women outside the labour market

The purpose of this Directive is to lay down a framework for combating discrimination based on sex in the access to and supply of goods and services, particularly in the field of insurance, with a view to putting into effect in the Member States the principle of equal treatment for men and women.

ACT

Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between women and men in the access to and supply of goods and services.

SUMMARY

Scope

The prohibition of discrimination between women and men applies to access to and supply of goods and services, in both the public and private sectors. The Directive applies to goods and services which are available to the public, irrespective of the persons concerned (i.e. irrespective of the individual situation of the potential consumer), and which are offered outside the area of private and family life. The term "services" refers to services provided against payment.

The Directive does not apply to the content of media and advertising or to education.

Differences in the treatment of men and women may be accepted only if they are justified by a legitimate aim, such as the protection of victims of sex-related violence (in cases such as the establishment of single-sex shelters) or the freedom of association (in cases of membership of single-sex private clubs). Any limitation should nevertheless be appropriate and necessary.

The principle of prohibition of discrimination in the area of goods and services

The Directive establishes the prohibition of discrimination based on sex in the access to and supply of goods and services. Therefore, all direct discrimination * between women and men is prohibited, including unfavourable treatment for reasons of pregnancy and maternity, and all indirect discrimination * is also prohibited. Harassment *, sexual harassment * and incitement to discrimination are considered as discrimination based on sex and for this reason are also prohibited. The Directive includes the definitions of these concepts, referring to the definitions used for the same terms in previous Directives.

The principle of equal treatment does not exclude the adoption of positive action to prevent or compensate for disadvantages linked to sex in the area of goods and services.

The Directive establishes minimum requirements: while the Member States can introduce or maintain provisions which are more favourable than those laid down in the Directive, they cannot reduce the level of protection already granted in the fields covered by the Directive.

Application in the field of insurance

The Directive prohibits, in principle, the use of sex as a criterion in the calculation of premiums and benefits for the purposes of insurance and related financial services, in all new contracts concluded after 21 December 2007. The Commission deems insurance companies' practice of separating women and men into different pools for the calculation of premiums to be discriminatory, as they do not face the same risks, bearing in mind their life expectancy in particular.

Member States may however decide to permit such practices where sex is a determining factor in the assessment of risk based on relevant and accurate actuarial and statistical data available to the public. These Member States shall review the justification for these derogations five years after transposal of the Directive, taking into account the most recent actuarial and statistical data.

In any event, all Member States must ensure that costs related to pregnancy and maternity (for example sickness insurance) are attributed equally to men and women. Member States must comply with this provision no later than 21 December 2009.

Bodies for the promotion of equal treatment

The Directive lays down that each Member State is to charge one or more bodies with the promotion of equal treatment for women and men on a national level, in the fields covered by the Directive. These bodies will be empowered to analyse the problems encountered, put forward recommendations and provide concrete assistance to victims.

Standard provisions

The Directive provides victims with the possibility of resorting to legal and/or administrative proceedings and obtaining appropriate reparation or compensation. The penalties must be effective, proportionate and dissuasive. Once the plaintiff has established facts from which it may be presumed that discrimination has taken place, the burden of proof rests with the respondent. Protection of victims and witnesses of discrimination based on sex, against risks of reprisals is also stipulated. Moreover, the proposal encourages dialogue with non-governmental organisations contributing to the fight against discrimination based on sex.

Compliance, penalties, dissemination of information and reports

Member States shall ensure that any laws, regulations and administrative provisions contrary to the principle of equal treatment are abolished, and that any contractual provisions, internal rules of undertakings, and rules governing associations which are contrary to the principle of equal treatment are declared null and void or are amended.

Member States shall lay down the rules on penalties applicable to infringements of the national provisions adopted pursuant to this Directive, ensure that the information contained in the Directive is published widely, and shall communicate all available information concerning the application of this Directive to the Commission, by 21 December 2009 and every five years thereafter.

The Commission shall draw up a report including a review of the current practices of Member States with regard to the use of sex as a factor in the calculation of premiums and benefits. It shall submit this report no later than 21 December 2010.

Background

This Directive gives concrete form to the Commission's intention to present a proposal to prohibit discrimination based on sex outside the labour market, as expressed in the framework strategy for gender equality (2001-2005) and in the social policy agenda published in June 2000. In December 2000, the Nice European Council had encouraged the Commission to do so by calling for the adoption of a proposal for a directive to promote equal treatment for men and women in fields other than work and employment.

This Directive has its legal basis in Article 13 of the Treaty establishing the European Community, which provides that the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, can take the necessary measures to combat all discrimination based on sex.

Key terms used in the act
  • Direct discrimination: a situation where one person is treated less favourably, on grounds of sex, than another is, has been or would be treated in a comparable situation.
  • Indirect discrimination: a situation where a provision, a criterion or an apparently neutral practice could put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are legitimate and necessary.
  • Harassment: a situation where unwanted conduct related to the sex of a person is exhibited with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile or degrading environment.
  • Sexual harassment: a situation where unwanted physical, verbal or non-verbal conduct with sexual connotations is exhibited with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading or offensive environment.

REFERENCES

Act Entry into force Deadline for transposition in the Member States Official Journal
Directive 2004/113/EC [adoption: consultation CNS/2003/0265] 21.12.2004 21.12.2007 OJ L 373 of 21.12.2004

RELATED ACTS

Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions - Towards a Community framework strategy on gender equality (2001-2005) [COM(2000) 0335 final - Not published in the Official Journal]

Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions - Social policy agenda [COM(2000) 0379 final - Not published in the Official Journal].

Last updated: 29.08.2005
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