Equal Treatment Outside Employment: Access to Goods and Services Elisabeth Holzleithner ERA, Trier, 19 May 2009 Holzleithner Goods and Services 1

Council Directive 2004/113/EC of 13 December 2004 Implementing the Principle of Equal Treatment between Men and Women in the Access to and Supply of Goods and Services Holzleithner Goods and Services2

Concepts and Definitions Goods … within the meaning of the TEC provisions relating to the free movement of goods Services … within the meaning of Article 50 TEC Goods & services which are available to the public ↔ outside the area of private and family life and transactions carried out in this context ↔ religious freedom Not applicable to: content of media or advertising, public or private education Holzleithner Goods and Services3

Freedom of Contract? Art. 3 (2) The individual’s freedom to choose a contractual partner is not prejudiced as long as the choice is not based on that person's sex. See also Art. 3 (1) lit. h of Directive 2000/43/EC: Prohibition of discrimination based on racial or ethnic origin in access to and supply of goods and services which are available to the public Holzleithner Goods and Services4

Equal Treatment Principle (Art. 4): - Selected Issues No direct discrimination based on sex, no less favourable treatment of women for reasons of pregnancy and maternity No indirect discrimination More favourable provisions are allowed protecting women as regards pregnancy and maternity Differences in treatment are justified by a legitimate aim if the means of achieving it are appropriate and necessary Holzleithner Goods and Services5

Direct Discrimination Issues Discrimination only occurs in comparable situations “Accordingly, for example, differences between men and women in the provision of healthcare services, which result from the physical differences between men and women (...) do not constitute discrimination” (Preamble, 12) Examples? Holzleithner Goods and Services6

Actuarial Calculations Proportionate differences in individuals’ premiums and benefits are admissible where the use of sex is a determining factor in the assessment of risk based on relevant and accurate actuarial and statistical data. Commission to be informed Data to be accurate, published and regularly updated Examples Holzleithner Goods and Services7

Special Status of Pregnancy and Maternity In any event, costs related to pregnancy and maternity shall not result in differences in individuals’ premiums and benefits. This only applies to new contracts. Examples: private health insurance Ergo: “child-bearing” risk may no longer be taken into account, whereas other gender-specific factors may → “child-bearing risk” must be factored out Holzleithner Goods and Services8

Discrimination or Legitimate Differences in Treatment? Differences in treatment of sexes are allowed if justified by a legitimate aim as long as the means of achieving that aim are appropriate and necessary (Art. 4 (5)) Positive action to ensure full equality in practice is allowed if it prevents or compensates for disadvantages linked to sex (Art. 6) Holzleithner Goods and Services9

Examples of Treating Sexes Differently Lower fares on public transport Different admission charges for leisure facilities - discotheques - football matches Different prices for haircuts Women’s housing project Holzleithner Goods and Services10