歐美研究季刊 第45卷第4期
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618

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.tw

Abstract

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