Provisional text

2 October 2024 (*)

( Reference for a preliminary ruling – Article 53(2) of the Rules of Procedure of the Court of Justice – Article 267 TFEU – Concept of ‘court or tribunal’ – College voor de Rechten van de Mens (Institute for Human Rights, Netherlands) – Compulsory jurisdiction – Non-binding decision – Manifest inadmissibility )

In Case C‑1/24,

REQUEST for a preliminary ruling under Article 267 TFEU from the College voor de Rechten van de Mens (Institute for Human Rights, Netherlands), made by decision of 8 May 2023, received at the Court on 2 January 2024, in the proceedings

Achmea Schadeverzekeringen NV,

THE COURT (Ninth Chamber),

composed of O. Spineanu-Matei, President of the Chamber, J.-C. Bonichot (Rapporteur) and S. Rodin, Judges,

Advocate General: P. Pikamäe,

Registrar: A. Calot Escobar,

having decided, after hearing the Advocate General, to rule by reasoned order, pursuant to Article 53(2) of the Rules of Procedure of the Court of Justice,

makes the following

1This request for a preliminary ruling concerns the interpretation of Article 21 of the Charter of Fundamental Rights of the European Union and 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 (OJ 2004 L 373, p. 37).

2The request has been made in proceedings before the College voor de Rechten van de Mens (Institute for Human Rights, Netherlands) between X, a sole proprietor, and Achmea Schadeverzekeringen NV, an insurance company (‘Achmea’), concerning the principle of equal treatment between men and women in the access of employers to insurance against the consequences of the absence of their staff.

Legal context

European Union law

3Article 3 of Directive 2004/113, entitled ‘Scope’, provides:

‘1. Within the limits of the powers conferred upon the [European] Community, this Directive shall apply to all persons who provide goods and services, which are available to the public irrespective of the person concerned as regards both the public and private sectors, including public bodies, and which are offered outside the area of private and family life and the transactions carried out in this context.

…

4Article 5 of that directive, entitled ‘Actuarial factors’, provides, in paragraph 1:

‘Member States shall ensure that in all new contracts concluded after 21 December 2007 at the latest, the use of sex as a factor in the calculation of premiums and benefits for the purposes of insurance and related financial services shall not result in differences in individuals’ premiums and benefits.’

Netherlands law

5Paragraph 7 of the Algemene wet gelijke behandeling (General Law on equal treatment), of 2 March 1994 (Stb. 1994, No 230) (‘the Law on Equal Treatment’) provides, in subparagraph 1:

‘Discrimination shall be prohibited in the supply of goods or services or in the granting of access to goods or services, and in the conclusion, performance or termination of contracts in this respect, and in the supply of career guidance and of advice or information on educational or professional development, where these are done:

6Paragraph 10(1) of the Wet College voor de rechten van de mens (Law on the Institute for Human Rights), of 24 November 2011 (Stb. 2011, No 573), is worded as follows:

‘Upon written request, the [College voor de Rechten van de Mens (Institute for Human Rights)] may conduct an investigation in order to determine whether there has been or is discrimination within the meaning of the [Law on Equal Treatment], of the [Wet gelijke behandeling van mannen en vrouwen (Law on equal treatment of men and women)] or of Paragraph 646 of Book 7 of the [Burgerlijk Wetboek (Civil Code)], and it may make known its decision in this regard. The [College voor de Rechten van de Mens (Institute for Human Rights)] may also investigate, on its own initiative, in order to determine whether such discrimination is systematic and may make known its decision in this regard.’

7Paragraph 11 of the Law on the Institute for Human Rights provides, in subparagraph 1:

‘The [College voor de Rechten van de Mens (Institute for Human Rights)] shall initiate an investigation and notify in writing the complainant, the person responsible for the discrimination and, where appropriate, the person discriminated against of its decision, which must state the reasons on which it is based.’

8Paragraph 13 of that law provides, in subparagraph 1:

‘The [College voor de Rechten van de Mens (Institute for Human Rights)] may bring an action seeking that conduct contrary to the [Law on Equal Treatment], to the Law on equal treatment of men and women or to Paragraph 646 of Book 7 of the Civil Code be declared unlawful, that such conduct be prohibited or that an order be made requiring that the consequences of such conduct be nullified.’

9Under Paragraph 28 of the Besluit werkwijze onderzoek gelijke behandeling (Decree on the procedure for investigations into equal treatment):

‘The decision of the [College voor de Rechten van de Mens (Institute for Human Rights)], possibly accompanied by recommendations, is public. Where, according to the [College voor de Rechten van de Mens (Institute for Human Rights)], the protection of the material interests of the parties, of the persons concerned or of third parties so warrants, the provision of an anonymised copy of the decision may suffice.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

10X employs only female staff in her undertaking.

11Achmea offers non-life insurance to entrepreneurs, including insurance against the consequences of the absence of their staff.

12Under Netherlands law, in the event of the absence of an employee on grounds of illness, the employer is required to continue to pay part of his or her salary for a period lasting, in principle, up to 102 weeks. The employer may insure that risk with an insurer by taking out insurance against the consequences of such an absence. That insurance provides for the payment to the employer of an indemnity covering part of the salary of a sick employee during the first two years of illness.

13Achmea’s website contains a tool for calculating the amount of the premium of the insurance policy. X used that tool at a time when she employed only female staff and, according to the calculation made using that tool, that premium amounted to approximately EUR 920.64 per month. After making a new calculation under the assumption that she employs only male staff, that premium amounted to EUR 691.88 per month.

14In response to a request from X, Achmea explained that the premium rate is calculated on the basis of risk data and historical data, with various factors, including sex, being included in the calculation.

15Achmea’s terms of insurance state that the premium rate depends on the activity of the undertaking, data relating to the absence of employees in the sector of activity (depending on the number of employees), coverage rates, employee data, such as guaranteed annual salary, year of birth and sex, days of absence and remuneration paid over the last three years.

16X made an application to the College voor de Rechten van de Mens (Institute for Human Rights), which is the referring body, in order to obtain a decision as to whether there is, in the circumstances described above, discrimination on grounds of sex, which is prohibited. In that regard, she maintains that Achmea discriminates against her on grounds of sex by including sex as a factor in the calculation of the rate of the insurance premium covering the consequences of the absence of employees. It follows that the premium charged for an all-female staff is higher than that charged for an all-male staff.

17On the other hand, Achmea argues, before the referring body, that it charges a higher premium to insure women because their average rate of absence for illness is statistically higher. In Achmea’s view, Directive 2004/113 merely states that the use of sex as an actuarial factor cannot result in differences in individuals’ premiums and benefits. That directive therefore applies only to insurance and pensions which are private, voluntary and separate from the employment relationship. However, that is not the case with regard to the insurance in the case before the referring body. Sex may therefore be used as a factor for determining the premium.

18The referring body is uncertain, in the first place, whether X may rely on Directive 2004/113. It takes the view that X cannot rely on the protection conferred by Paragraph 7 of the Law on Equal Treatment, since it is not she who is discriminated against, but her employees. However, that paragraph must be regarded as transposing Article 3 of that directive into Netherlands law, so that the scope of that directive must be determined.

19In the second place, that body takes the view that it can be inferred from Article 5(1) of Directive 2004/113 that the use of sex as an actuarial factor can result in differences in premiums and benefits for persons who are not individuals. It is of the opinion that, should Directive 2004/113 be applicable in the present case, it is appropriate to determine whether the taking into account of actuarial differences related to sex in the calculation of the rate of the insurance premium covering the consequences of the absence of employees gives rise to indirect discrimination on grounds of sex in that an employer might be less inclined to hire women. The referring body is uncertain as to why actuarial differences between men and women may be taken into account in the premiums that entrepreneurs or employers pay for insurance against the consequences of the absence of employees, whereas such differences may not be taken into account in the premiums that insured persons, as individuals, pay for private insurance.

20In those circumstances, the College voor de Rechten van de Mens (Institute for Human Rights) decided to stay the proceedings and to refer the following questions to the Court of Justice:

‘(1) Is Directive [2004/113] to be interpreted as meaning that it also applies to the situation of the applicant, where she is not herself discriminated against on grounds of her sex, but suffers a disadvantage because she employs only female staff and, as a result, pays a higher premium than that which she would pay if she (also) employed male staff?

(2) Is Directive 2004/113 to be interpreted, in the light also of Article 21 of the Charter of Fundamental Rights of the European Union – and on the assumption that Directive 2004/113 applies to the applicant’s situation as an employer – as meaning that the use of sex as a factor for the purposes of insurance and related financial services should also not result in differences in premiums and benefits for employers (who are not individuals)?’

Admissibility of the request for a preliminary ruling

21Under Article 53(2) of the Rules of Procedure of the Court of Justice, where a request for a preliminary ruling is manifestly inadmissible, the Court, after hearing the Advocate General, may at any time decide to give judgment by reasoned order without continuing the proceedings.

22It is appropriate to apply that provision in the present case.

23According to settled case-law of the Court, the procedure provided for by Article 267 TFEU is a means of cooperation between the Court of Justice and national courts, by which the Court provides the national courts with the points of interpretation of EU law which they need in order to decide the disputes before them (judgment of 7 May 2024, NADA and Others, C‑155/22, EU:C:2024:384, paragraph 33 and the case-law cited).

24Furthermore, in order to determine whether a body that is making a reference is a ‘court or tribunal’ within the meaning of Article 267 TFEU, which is a question governed by EU law alone, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent (see, to that effect, judgments of 30 June 1966, Vaassen-Göbbels, 61/65, EU:C:1966:39, p. 273; of 3 May 2022, CityRail, C‑453/20, EU:C:2022:341, paragraph 41; and of 7 May 2024, NADA and Others, C‑115/22, EU:C:2024:384, paragraph 35).

25It is also clear from the Court’s settled case-law that a national court may refer a question to the Court only if there is a case pending before it and if it is called upon to give judgment in proceedings intended to lead to a decision of a judicial nature (judgment of 3 May 2022, CityRail, C‑453/20, EU:C:2022:341, paragraph 42 and the case-law cited).

In the present case, the information for assessing whether there is a ‘court or tribunal’ is drawn from the reply of the referring body, received at the Court on 5 April 2024, to a request for information sent by the latter.

27While it is true that the provisions of the Law on the Institute for Human Rights and the information provided by that institute appear to confirm that that institute and its jurisdiction are established by law, that that institute applies rules of law and that its procedure is inter partes, that is not the case for the requirement that the referring body have compulsory jurisdiction.

28In that regard, it should be borne in mind that, according to the case-law of the Court, the jurisdiction of a referring body, whose jurisdiction does not depend on the parties’ agreement, is compulsory where its decision is binding on the parties (see, to that effect, judgments of 17 September 1997, Dorsch Consult, C‑54/96, EU:C:1997:413, paragraphs 27 and 29, and of 6 October 2015, Consorci Sanitari del Maresme, C‑203/14, EU:C:2015:664, paragraphs 22 to 25).

29This is clearly not the case here.

30In the first place, it should be noted that, in its reply to the Court’s request for information, the College voor de Rechten van de Mens (Institute for Human Rights) states that its decisions do not have the force of a judicial decision within the meaning of Netherlands law.

31In the second place, according to the first sentence of Paragraph 10(1) of the Law on the Institute for Human Rights, that institute is authorised, upon written request, to conduct an investigation in order to determine whether there has been or is discrimination within the meaning, inter alia, of the Law on Equal Treatment or of the Netherlands Civil Code. Under Paragraph 11(1) of the Law on the Institute for Human Rights, that institute is to notify the complainant, the person responsible for the discrimination and, where appropriate, the person discriminated against of its reasoned decision. In addition, according to Paragraph 28 of the Decree on the procedure for investigations into equal treatment, the decision of that institute is public.

32However, those provisions do not specify the specific legal effects of the ‘decisions’ that follow an investigation of the College voor de Rechten van de Mens (Institute for Human Rights).

33Admittedly, according to the reply of that institute, its decisions may produce legal effects. According to the case-law of the Hoge Raad der Nederlanden (Supreme Court of the Netherlands), cited in that reply, a court may not depart from a decision of the Commissie gelijke behandeling (Commission for Equal Treatment), which was the predecessor of the College voor de Rechten van de Mens (Institute for Human Rights), without duly giving the reasons for its position in that regard. Moreover, according to a ‘follow-up’ investigation of the decisions of that institute, those decisions lead in approximately 74% of cases to the adoption, by the defendant, of measures in accordance with those decisions. Furthermore, because those decisions are more often than not published on the institute’s website together with the name of the party against whom the complaint is made, they have a deterrent effect.

34Consequently, the only legal effect of a decision of the College voor de Rechten van de Mens (Institute for Human Rights) is to trigger an obligation to state specific reasons on the part of the court that will rule on the merits, should that court depart from such a decision.

35Although it does not appear to be disputed that the decisions of the College voor de Rechten van de Mens (Institute for Human Rights) are complied with and generally accepted, the fact remains that they are not binding on the parties or on the courts before which the dispute may be brought following such a decision. The sole obligation on the part of the court before which the dispute may be brought to explain the reasons why it would depart from that institute’s position – which must be interpreted as an enhanced obligation to state reasons – does not imply that that decision has binding force. Therefore, the decisions of that institute are not binding, within the meaning of the case-law of the Court.

36In the third place, according to Paragraph 13 of the Law on the Institute for Human Rights, that institute may bring an action seeking that conduct contrary to Netherlands law on equal treatment be declared unlawful, that such conduct be prohibited or that an order be made requiring that the consequences of such conduct be nullified. In addition, in its reply to the request for information, the College voor de Rechten van de Mens (Institute for Human Rights) confirmed that it may bring an action after the conclusion of the proceedings pending before it in the present case.

37However, that circumstance, far from demonstrating the judicial nature of the College voor de Rechten van de Mens (Institute for Human Rights) within the meaning of the case-law of the Court, shows that the positions adopted by it do not have binding force. If the decision of that institute were binding, it would not be necessary to initiate judicial proceedings after the conclusion of its investigation. Therefore, the referring body appears rather to rely on its authority to ensure that its decisions are complied with, failing which that institute or the interested parties may bring proceedings before the Netherlands civil courts.

38In the fourth place, according to the reply provided by the referring body, an interested party may also bring an action before the competent civil courts, without that party being required first to refer the matter to the College voor de Rechten van de Mens (Institute for Human Rights). That institute states, in that regard, that its jurisdiction is ‘optional’ and not ‘exclusive’.

39Although a referring body can be considered a ‘court or tribunal’, within the meaning of Article 267 TFEU, despite its optional jurisdiction in the sense that the applicant has the choice of referring the matter directly to another court (see, to that effect, judgments of 6 October 2015, Consorci Sanitari del Maresme, C‑203/14, EU:C:2015:664, paragraphs 23 to 25, and of 20 September 2018, Montte, C‑546/16, EU:C:2018:752, paragraphs 23 and 24), the fact remains that it is apparent from paragraphs 30 to 37 above that the decisions of the College voor de Rechten van de Mens (Institute for Human Rights) are not binding on the parties to the proceedings before it.

40Consequently, the referring body in the present case clearly does not satisfy the requirement that its jurisdiction be compulsory. It follows that the College voor de Rechten van de Mens (Institute for Human Rights) is not a ‘court or tribunal’, within the meaning of Article 267 TFEU, and that the request for a preliminary ruling is manifestly inadmissible.

Costs

41Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring body, the decision on costs is a matter for that body.

On those grounds, the Court (Ninth Chamber) hereby declares:

The request for a preliminary ruling from the College voor de Rechten van de Mens (Institute for Human Rights, Netherlands), made by decision of 8 May 2023, received at the Court of Justice of the European Union on 2 January 2024, is manifestly inadmissible.

[Signatures]

Language of the case: Dutch.