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歐美研究
Unisex Pricing in Private Insurance?
—
An Analysis of the ECJ
Test-Achats ASBL
Judgment from the Perspective of German Law
Ching-Hui Chen
College of Law, National Taipei University
No. 151, University Rd., San Shia District, New Taipei City 23741, Taiwan
E-mail:
chchen@mail.ntpu.edu.twAbstract
The purpose of this paper is to analyze the 2011 decision of the
European Court of Justice in
Test-Achats ASBL
. The ECJ ruled that
the different premiums based purely on the grounds of gender were
incompatible with the unisex rule, which is the purpose of the Di-
rective 2004/113/EC in the insurance field and therefore, with the EU
Charter of Fundamental Rights. The core issue is
—
Could insurers use
sex as a determining risk factor to justify differences in individuals’
premiums? Gender is commonly used as a determining risk-rating
factor for certain insurance products because there is statistical data to
back it up. This article thus aims to examine the discrimination dis-
putes caused by different premiums for men and women in light of
the boundary of statistical discrimination on the grounds of sex. Ac-
cording to the ECJ’s judgment, from 21 December 2012, insurance
companies in the EU are no longer allowed to charge different prices
based on a person’s sex. This restricts private company’s freedom of
contract. The article hence goes on to discuss the relationship between
prohibition of sex discrimination and the principle of freedom of
contract.
Key Words
:
unisex pricing, prohibition of sex discrimination, statis-
tical discrimination, stereotype, freedom of contract