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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



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


Key Words


unisex pricing, prohibition of sex discrimination, statis-

tical discrimination, stereotype, freedom of contract