Human Rights in Ireland

The Court of Justice of the European Union (CJEU) has ruled that from 21 December 2012, where insurance companies calculate risks, they cannot take into account the gender (male or female) of a person seeking to be insured as this is contrary to the objectives of the Equal Treatment Directive and incompatible with Article 21 and Article 23 of the European Charter of Fundamental Rights. The Equal Treatment Directive seeks to implement the principle of equal treatment between men and women in access to and supply of goods and services.  Article 5(1) of the Equal Treatment Directive  set down the general principle that in the calculation of insurance and related  financial services,  there should be no difference in the premiums or benefits solely on the basis of a person’s sex. Article 5(2) of the Equal Treatment Directive specifically permitted member states to allow sex be utilised as an actuarial difference in relation to calculation of insurance benefits and premiums after this deadline. However, a member state had to inform the European Commission that they would be implementing Article 5(2) (and effectively gain an opt out from Article 5(1)) and review the situation after five years (21 December 2012).

The Belgian Cour constitutionelle had requested a preliminary reference from the CJEU on questions relating to whether Article 5(2) of the Equal Treatment Directive was contrary to a number of provisions of EU law.  The CJEU in giving judgment relied heavily on provisions of the EU Treaties, the Charter of Fundamental Rights of the European Union and the aims and Read Full Post »

Earlier this year the European Court of Justice handed down its decision in Kücükdeveci – prompting a deluge of commentary from the EU blawgosphere (see some meta-blogging here).The case concerned a claim of age discrimination based on a German employment law that did not take periods of work served prior to the employee’s 25th birthday into account when calculating the notice period prior to dismissal. The German law was incompatible with the requirements of Directive 78/2000, the transposition period for which had passed prior to the applicant’s dismissal. However, as the respondant in the case was a private party, the general prohibition on allowing untransposed Directives to be relied upon against a private party would ordinarily have hindered Ms Kücükdeveci’s case. However, the Court of Justice held that the principle of non-discrimination on grounds of age was a general principle of EU law which was given “specific expression” in the Directive [para 21]. The Court also made reference to Article 21(1) of the EU Charter of Fundamental Rights which declares that “[a]ny discrimination based on … age … shall be prohibited” [para 22]. As a result the Court held that

It follows that it is the general principle of European Union law prohibiting all discrimination on grounds of age, as given expression in Directive 2000/78, which must be the basis of the examination of whether European Union law precludes national legislation such as that at issue in the main proceedings [para 27].

The Court proceeded to examine the matter at hand and concluded that the principle, as given expression by the Directive, precluded the German national legislation. The case has been much commented-upon as it appears to further erode the prohibition on the horizontal direct effect of directives. There were previously three ways in which that prohibition was eroded: (1) by the Court of Justice’s broad conception of the state; (2) by requiring national law to be interpreted in a manner that conforms with unimplemented directives (which was not possible in this case); and (3) by requiring national law to be set aside if it has not met with procedural or technical requirements laid down in a directive. To this list it is necessary to add the proviso that unimplemented directives may be implemented against private parties where they constitute the expression of a general principle of EU law. This has potentially wide-ranging implications and Adjudicating Europe claims that it is an example of the Court of Justice integrating Europe through law. The obvious question that arises is which general principles of EU law as given expression in which directives can be relied upon in proceedings between private parties? Adjudicating Europe has addressed the matter of private law, and it is not proposed to further consider private law principles here. Read Full Post »