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

KEY ASPECTS

Scope

The directive applies to goods and services offered to the public, regardless of the personal circumstances of the service recipient, and which are offered outside of the private and family spheres. The term services here indicates services provided in exchange for remuneration.

The directive does not apply to media or advertising content or to education.

Ban on discrimination in the field of goods and services

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;
• harassment¹, sexual harassment² 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 protecting victims of sexual abuse (e.g. creating women’s refuges), ensuring freedom of association (e.g. the membership of unisex private clubs) or organising 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 Member States to maintain higher or more extensive levels of protection if they wish.

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. It had provided, nonetheless, for the option for Member States 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 that allowed Member States to differentiate between men and women with regard to insurance premiums and benefits, with effect from 21 December 2012. For all new agreements signed since that date, the principle of a unisex tariff applies to the insurance sector. To facilitate the implementation of the Court’s ruling, the European Commission adopted guidelines on the application of the directive to the insurance sector. In any event, the costs associated with pregnancy and maternity must not lead to differences in terms of premiums and benefits.

Bodies promoting equal treatment

Amending Directive (EU) 2024/1499 clarifies the role of bodies designated at the national level to promote equal treatment and combat discrimination (equality bodies). It lays down minimum requirements that Member States must implement with regard to the role and operation of these bodies, including how they should assist victims after receiving their complaint. These bodies must:

• be independent in terms of their legal structure, accountability, budget, staffing and organisational matters;
• be provided with sufficient resources to carry out all their tasks and to exercise their responsibilities effectively;
• be able to investigate possible cases of discrimination and either issue a non-binding opinion or adopt a binding decision;
• be regularly consulted by government and other public institutions on legislation and policies that include equality and non-discrimination aspects;
• be required to collect data on their own activities;
• plan and publicly report on their work and on the state of equal treatment and non-discrimination on a regular basis.

Under amending Directive (EU) 2024/1499, Member States must also:

• introduce rules allowing for the possibility of the out-of-court settlement of disputes;
• ensure that equality bodies have the right to act in civil and administrative law matters concerning the implementation of the principle of equal treatment;
• ensure that equality bodies provide their services at no cost to complainants, throughout their territory, including in rural and remote areas;
• require equality bodies to guarantee accessibility and provide reasonable accommodations for persons with disabilities to all their services and activities.

Defending victims’ rights

The directive requires Member States 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, the defendant must be able to prove that there has been no infringement of the principle of equal treatment (rebut the charge).

Member States must put sanctions in place in the event of the infringement of the principle of equal treatment.