In March 2011, we reported on the European Court of Justice decision in the Test-Achats case, that from 21 December 2012 insurers would no longer be allowed to use gender-related factors in determining premiums and benefits in insurance contracts. Click here to read our briefing on this.
On 30 June 2011, the Government issued a ministerial statement in relation to the decision. In the statement, the government expressed its disappointment with the Test-Achats decision which "it expects to have a negative impact on consumers". It also stated that:
- In its view, that decision only applies to new contracts for insurance and related financial services entered into on or after 21 December 2012. It intends to amend the Equality Act 2010 in "early" 2012 to give effect to its understanding of the decision and will consult on this in autumn 2011.
- The Government is working with the European Commission and other EU member states to ensure that there is a unanimous view across Europe of the implications of the decision and the factors that member states should consider when implementing it.
- The European Commission proposes to issue guidance on the interpretation of the judgment.
- The Government would prefer for the ECJ's decision to be given effect to by an amendment to the Gender Directive (the directive in question in the case) and will continue to work with other member states to press the European Commission to propose such an amendment.
We consider it possible that the ECJ may reach an alternative view to the Government's view that Test-Achats only applies to new contracts entered into on or after 21 December 2012. The ECJ may, for instance, take the view that premiums and benefits under contracts concluded on or after 22 December 2007 (the date from which the derogation in the Gender Directive under which insurance companies are allowed to use gender-based factors had effect) must be calculated using unisex factors. There is, therefore, a risk in following the Government's view (although it is very likely that the proposed amendment to the Equality Act 2010 in relation to insurance companies will be made on this basis).
The Government's statement does not make clear whether it will remove the exceptions in the Act that allow pension schemes to use gender-based factors, but the expectation seems to be that this is likely.