EN Official Journal of the European Union CE 84/845

(2004/C 84 E/0938)

WRITTEN QUESTION E-0693/04

by Johanna Boogerd-Quaak (ELDR), Ieke van den Burg (PSE) and Joke Swiebel (PSE) to the Commission

(9 March 2004)

Subject: Proposal COM(2003)657 and Directive 86/378/EEC

Commission proposal for a Council directive implementing the principle of equal treatment between women and men in the access to and supply of goods and services (COM(2003) 657) refers to the use of sex-based actuarial factors. As the Commission rightly points out in the explanatory memorandum and in recital 13 of the proposal, the use of sex-based actuarial factors is widespread in the provision of insurance services, even when such differences do not necessarily reflect objective differences. It is, therefore, appropriate to prohibit the use of these factors (see Article 4 of the proposal). We wholeheartedly applaud this and will support the Commission on this proposal.

At the same time, we would like to remind the Commission that, in the fourth Equal Treatment Directive (Council Directive 86/378/EEC (1) of 24 July 1986 on the implementation of the principle of equal treatment for men and women in occupational social security schemes), the use of actuarial calculation factors which differ according to sex may be maintained, pursuant to Article 6(1)(h).

This situation can cause confusion when it comes to deciding whether supplementary pension rules come under the second or third pillar, and thus whether they must be treated under Directive 86/378/EEC or under the new directive.

On the assumption that the above-mentioned Commission proposal will soon be approved by Parliament and the Council, we ask the Commission the following question: Is the Commission prepared to propose to Parliament and the Council a revised version of Directive 86/378/EEC, so that the use of sex-based actuarial factors may be forbidden also in the business and sectoral rules on social security?

Answer given by Mr Dimas on behalf of the Commission

(26 April 2004)

The Commission proposal for a Council directive based on Article 13 of the EC Treaty implementing the principle of equal treatment between women and men in the access to and supply of goods and services prohibits the use of sex-based actuarial factors in insurance services and private (third pillar) pension schemes. This reflects the Commission's view that the use of sex-based actuarial factors in insurance services and third pillar pension schemes is not compatible with the principle of equal treatment, and should be prohibited.

Council Directive 86/378/EEC on the implementation of the principle of equal treatment for men and women in occupational social security schemes (as amended by Directive 96/97/EC (2)) permits the use of sex-based actuarial factors in occupational (second pillar) pension schemes. Accordingly, once the Directive based on Article 13 of the EC Treaty is adopted, there will be different regimes as regards the use of sex-based actuarial factors in second and third pillar pension schemes.

The Commission does not consider that the application of different regimes for second and third pillar pensions would cause confusion. The case law of the Court of Justice has laid down clear criteria in the context of Article 141 of the EC Treaty which determine whether a pension scheme falls under the second pillar. The essential question the Court of Justice has asked is whether the pension is paid to the worker by reason of the employment relationship between the worker and her former employer (for example, see C-7/93 Beune).

The Commission is approaching use of sex-based actuarial factors in second and third pillar pension schemes on a step-by-step basis. The question of the use of sex-based actuarial factors in second pillar pension schemes was considered by the Commission, Parliament and Council in 1986 in the context of Directive 86/378/EEC, and again in 1996 in the context of Directive 96/97/EC. On each occasion, the outcome has been that the use of such factors should continue to be permitted. At present, the Commission is continuing with the discussions in the Council in relation to third pillar pensions covered by its proposal based on Article 13 EC. Therefore, the Commission does not consider it would be appropriate to propose a revised version of Directive 86/378/EEC addressing second pillar pensions at this stage while those discussions in relation to third pillar pensions are continuing.

(1) OJ L 225, 12.8.1986, p. 40.

(2) OJ L 46, 17.2.1997.