X.
Date: 2014-09-03
22. In that regard, it must be noted that the legal act which is the subject-matter of the main proceedings was adopted in 2008 by the decision of the vakuutusoikeus. Nor is it in dispute that the compensation for long-term harm in question seeks to remedy the consequences of X’s accident for the rest of his life.
23. It follows that the subject-matter of the main proceedings is not a situation which had produced all its effects before the accession of the Republic of Finland to the European Union.
34. As regards the possible grounds for derogation from the principle of equal treatment set out in Article 4(1) of Directive 79/7, it must be noted that the taking into account of a factor based on remaining life expectancy is not provided for either in Article 4(2) of that directive, which concerns the provisions on the protection of women on the grounds of maternity or in Article 7(1) of that directive, which enables the Member States to exclude from its scope a certain number of rules, advantages and benefits as regards social security.
35. Moreover, it does not follow from the wording of Article 7(1) of Directive 79/7 that the grounds for derogation set out therein are not exhaustive and that the Member States are free to develop other grounds for derogation from the principle of equal treatment. The fact that the taking into account of such a factor is not expressly prohibited by that directive cannot be interpreted as authorising the national legislature to provide for that factor as an element in the calculation of a benefit such as that at issue in the main proceedings.
42. In that regard, it must be borne in mind that the Court, in paragraph 56 of its judgment in Brasserie du pêcheur and Factortame (C‑46/93 and C‑48/93, EU:C:1996:79), stated that the factors which the referring court may be required to take into consideration include the clarity and precision of the rule infringed, the scope of the discretion conferred by the rule on the national or EU authorities, whether the infringement and the damage caused were intentional or involuntary, whether any error of law was excusable or inexcusable, and the fact that the position taken by an EU institution may have contributed to the omission, adoption or maintenance of national measures or practices contrary to EU law.
43. The Court has also pointed out that it is, in principle, for the national courts to apply the criteria for establishing the liability of Member States for damage caused to individuals by breaches of EU law, in accordance with the guidelines laid down by the Court for the application of those criteria (see judgment in Test Claimants in the FII Group Litigation , C‑446/04, EU:C:2006:774, paragraph 210 and the case-law cited).
44. It follows that the Court cannot substitute its assessments for those of the national courts (see judgment in Brasserie du pêcheur and Factortame , EU:C:1996:79, paragraph 58). Nevertheless, the Court can provide the national courts with guidelines and indications for the application of that principle (see judgment in Köbler , C‑224/01, EU:C:2003:513, paragraph 100).
48. Thirdly, it must be noted that, with regard to acts adopted by the EU legislature to implement the principle of equal treatment of men and women, Article 5(2) of Directive 2004/113 entitled the Member States to decide before 21 December 2007 to permit proportionate differences in individuals’ premiums and benefits where the use of sex is a determining factor in the assessment of risk based on relevant and accurate actuarial and statistical data. In addition, in Article 9(1)(h) of Directive 2006/54, the EU legislature, while deciding that a certain number of provisions in the field of occupational social security systems based on sex are contrary to the principle of equal treatment, nevertheless included in the derogations from that principle, in certain cases, the use of actuarial factors differing according to sex.
49. As regards the first of those provisions, the Court has held, on 1 March 2011, in paragraph 32 of the judgment in Association belge des Consommateurs Test-Achats and Others  (EU:C:2011:100), that enabling the Member States to maintain without temporal limitation an exemption from the rule of unisex premiums and benefits works against the achievement of the objective of equal treatment between men and women, which is the purpose of Directive 2004/113, stating that that provision, due to its discriminatory nature, must therefore be considered to be invalid.