Principle of equal treatment of men and women outside the employment market

The directive aims to implement equal treatment of men and women with a view to extending the principle of equal treatment beyond the sphere of the employment market and professional life to other areas of everyday life.

ACT

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

SUMMARY

WHAT IS THE AIM OF THIS DIRECTIVE?

The directive establishes a framework for combatting all gender discrimination in access and supply of goods and services, in both the public and private sectors.

The directive applies to goods and services offered to the public, regardless of the persons concerned (that is to say, whatever the personal circumstances of the service recipient) and which are offered outside of the private and family spheres. The term ‘services’ indicates services provided in exchange for remuneration.

The directive does not apply to either the content of media or advertising, or education.

KEY ASPECTS

Ban on discrimination in the field of goods and services: in principle, the directive prohibits:

• any less favourable treatment of men or women by reason of their gender;
• any less favourable treatment of women due to pregnancy or maternity;
• harassment, sexual harassment or any incitement to discriminate with regard to the offer or supply of goods or services.

Differential treatment can only be accepted if it is justified by a legitimate objective such as, for example protection of victims of sexual abuse (in the case of creating women’s refuges), freedom of association (in the context of membership of unisex private clubs) or organisation of unisex sporting activities. Any limitation must be appropriate and necessary.

The principle of equal treatment does not preclude taking affirmative action to prevent or compensate for gender inequalities in the area of goods and services.

The directive establishes only minimal requirements to allow EU countries to be able to maintain higher or more extensive levels of protection.

Application to the field of insurance: the directive prohibits taking gender into consideration when calculating insurance premiums and benefits in insurance agreements signed after 21 December 2007.

Nonetheless, the directive provided for the option for EU countries not to apply this prohibition in cases where gender was a determining factor in risk assessment and based on relevant actuarial and statistical data. However, the Court of Justice of the European Union, in its ruling on the Test-Achats case (C-236/09) declared invalid the derogation from the principle of equal treatment which allowed EU countries to differentiate between men and women with regard to insurance premiums and benefits, with effect from 21 December 2012.

Henceforth, for all new agreements signed since this date, the principle of a unisex tariff applies to the insurance sector. In order to facilitate implementation of the Court’s ruling, the Commission adopted Guidelines on the application of the directive to the insurance sector.

In any case, the costs associated with pregnancy and maternity must not lead to differences in terms of premiums and benefits.

Bodies promoting equal treatment: each EU country charges one or several bodies with promoting and monitoring equal treatment of men and women at national level. These bodies are responsible for (i) offering victims independent assistance, (ii) carrying out independent studies, (iii) publishing independent reports and making recommendations.

Defending victims’rights: the directive obligates EU countries to ensure that victims have access to a judicial and/or administrative procedure to safeguard their rights, and that victims can obtain the appropriate reparation or compensation. Associations, organisations and other legal persons with a legitimate interest are also able to engage in a judicial and/or administrative procedure to allow victims to safeguard their rights and to obtain reparation or compensation.

When facts presented before a tribunal support the presumption of the existence of discrimination, it falls to the defendant to prove that there has been no infringement of the principle of equal treatment (rebuttal of the charge).

Furthermore, EU countries must put in place sanctions in case of infringement of the principle of equal treatment.

FROM WHEN DOES THE DIRECTIVE APPLY?

The directive came into force on 21 December 2004 and it should have been transposed into EU country law by 21 December 2007 at the latest.

CONTEXT

Equality between men and women is a fundamental principle of the European Union, laid down in Articles 2 and 3 of the Treaty on European Union. Gender discrimination may constitute an obstacle to full and successful integration of men and women into economic and social life.

KEY TERMINOLOGY

Direct discrimination: circumstances in which a person is treated less favourably, by reason of their gender, than another person who, in a similar situation, is not, has not been or would not be.

Indirect discrimination: circumstances in which an apparently neutral provision, criterion or practice is likely to lead to a specific disadvantage for persons of the opposite sex, unless this provision, criterion or practice is objectively justified by a legitimate objective and the means of realising this objective are appropriate and necessary.

Harassment: circumstances in which unwanted conduct related to a person’s gender takes place, with the aim or effect of attacking the person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment.

Sexual harassment: circumstances in which unwanted sexual conduct, expressed physically, verbally or non-verbally, takes place, with the aim or effect of attacking the person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment.

last update 26.02.2015