Overview of Recent Cases before the European Court of Human Rights and the European Court of Justice (November 2010 – March 2011)

DOI10.1177/138826271101300204
Date01 June 2011
Published date01 June 2011
Subject MatterRecent News and Case Law
European Jour nal of Social Secu rity, Volume 13 (2011), No. 2 267
OVERVIEW OF RECENT CASES BEFORE
THE EUROPEAN COURT OF HUMAN
RIGHTS AND THE EUROPEAN COURT OF
JUSTICE (NOVEMBER 2010 − MARCH 2011)
M C*
In this ar ticle, we review developments in the case law of t he European Court of Justice
and Court of Human R ights and EU legislative developments in the period November
2010 to March 2011. We focus on a number of key judgments – mainly involving an
in ter pr et at ion of th e Tre at y p rov i sio ns − wh ic h l ook li ke ly to h av e a n i mpo rt an t i mpa ct
on social security issues: in particular, Tes t- Ac hat s, concerning the incompatibil ity of
secondary legislation allowing insu rance products (including pension annuit ies) to
be calcu lated by reference to gender-based act uarial factors; Casteels, concerning the
impact of free movement on the co-ordination of occupational pensions (a matter
largely unregulated by se condary law), and Ruiz Zambrano, concerning the impact of
EU citizenship on the rig ht to reside and consequent access to social bene ts.1
1. GEN DER EQUALI TY
In Test -A ch a ts , the gr and chamber of the Court of Justice made a ver y important rul ing
concerning gender equalit y and fundamental rights.2 e question referred asked, in
essence, whether it is compat ible with the fundamenta l rights of the European Union
to take the sex of the i nsured person into account as a risk factor in the formulat ion of
private insurance contracts.3 e case concerned Directive 2004/113, which is based
on Article 13(1) EC (now Article 19(1) TFEU). Article 1 of the Directive provides
that:
* School of Law and Soci al Science, Glasgow Caledon ian University; e-mail: mc ousi11@caledon ian.
ac.uk.
1 While both the C ourt of Justice and C ourt of Human R ights considered a numb er of cases (reviewed
brie y below) direct ly concerning socia l security, these genera lly raised few points of or iginal legal
interest or related to ver y country-speci c situations.
2 Case C-236/09, Associati on belge des Consommat eurs Test-Achats ASBL [2011] ECR I-000.
3 See Advocate General Kokot t, opinion, para. 1.
Recent News and Ca se Law
268 Intersentia
‘ e purpose of this Directive i s to lay down a framework for combat ing discrimination
based on sex in acce ss to and supply of goods and ser vices, with a vi ew to putting into e ect
in the Member States the pr inciple of equal treatment betwe en men and women.’
e Directive applies, inter alia, to insura nce products, and Article 5(1) provides
that:
‘Member States shall ensu re that in all new contracts concluded a  er 21 December 2007
at the latest, the u se of sex as a factor i n the calcu lation of premiums and bene ts for
the purpose s of insurance a nd related  nancial serv ices shall not re sult in di erences in
individual s’ premiums and bene ts.’
However, by way of derogation from that principle, Article 5(2) – which did not appear
in the origina l proposal – allowed Member States ‘to permit proportionate di erences
in individuals’ premiums and bene ts where the use of sex is a determini ng factor
in the assessment of risk based on relevant and accurate actu arial and statistical
data’.4 ere was no time lim it on this derogation, although decisions to exercise the
derogation were to be reviewed by 2012.
It was argued that t his derogation was in breach of Article 21(1) of the Charter of
Fundamental R ights, which provides that:
‘Any discrimination based on a ny ground such as sex, race, colour, ethnic or socia l origin,
genetic features, l anguage, rel igion or belief, polit ical or any other opin ion, membership
of a national minor ity, property, birth, d isability, age or sex ual orientation sh all be
prohibited.’
Article 6(1) TEU states that:
‘ e Union recognises t he rights, fre edoms and principles s et out in the Char ter of
Fundamental R ights of the European Union of 7 De cember 2000, as adapted at St rasbourg,
on 12 December 2007, which shal l have the same legal value as t he Treaties.’
Advocate General Kokott was in no doubt that A rticle 5(2) was not consistent with the
fundamenta l right to equality. She began her assessment
‘with considerable doubt s whether Art icle 5(2) of Directive 2004 /113 … is at all suitable
for expressing the pri nciple of equal treatment, in part icular the requirement not to treat
di erent situations in the same w ay. A provision having that objective shou ld be applicable
in all Member State s. In fact, Article 5(2) of Directive 2 004/113 is … only to be applicable
“where national legi slation has not already appl ied the unisex r ule”.  e provision therefore
has the e ect that in some Member State s it is possible for men and women to be treated
4 As Advocate General Kokot t pointed out (at paras. 21–22), the Commission did not cover its elf in
glory by  rst declaring it self  rmly against this approach, subsequently emphatical ly taking the
opposite view, and fai ling to provide any plausible ex planation for the change .

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