Equal Treatment Outside Employment: Access to Goods and Services Elisabeth Holzleithner University of Vienna 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 Implementation Deadline: 21 December 2007 Holzleithner Goods and Services2

Goods and Services Goods … within the meaning of the TEC provisions relating to the free movement of goods ECJ: all products which have a monetary value and may form the subject of commercial transactions Examples: food, electricity, books Services … within the meaning of Article 50 TEC Examples: access to public buildings, homes, hotels, transport, financial services, services provided by all industries, including insurance companies Holzleithner Goods and Services3

Restriction of the Scope of Application 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 must be guaranteed (recital 3, preamble) Not applicable to: content of media or advertising, public or private education Holzleithner Goods and Services4

Freedom of Contract? Art. 3(2) The individuals freedom to choose a contractual partner is not prejudiced as long as the choice is not based on that persons 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 Services5

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 for the protection of women during pregnancy and maternity are allowed Differences in treatment are justified by a legitimate aim if the means of achieving this aim are appropriate and necessary Holzleithner Goods and Services6

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 (recital 12, preamble) Examples: womens health centre Holzleithner Goods and Services7

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. Conditions for admissibility Commission to be informed Data to be accurate, published and regularly updated Holzleithner Goods and Services8

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 Services9

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)) Recital 16, preamble single-sex shelters privacy, decency (e.g. accommodation) promotion of the interests of men or women sports events Recital 17, preamble separate but equal – facilities must not be provided more/less favourably to members of one sex Holzleithner Goods and Services10

Positive Action Positive action to ensure full equal treatment in practice is allowed if it prevents or compensates for disadvantages linked to sex (Art. 6) Within the limits of anti-discrimination provisions Holzleithner Goods and Services11

What this is all about (example) Holzleithner Goods and Services12

Examples of Treating Sexes Differently Different prices for leisure facilities admission to discotheques: free of charge for women admission tickets for football matches: free of charge/cheaper for women Lower fares on public transport fares for senior citizens (for men: 65 or older; for women: 60 or older) Different prices for haircuts Womens housing project Private loss of earnings insurance excludes compensation for sex adjustments. Holzleithner Goods and Services13

Structure of Review Is direct or indirect discrimination involved? Is the difference in treatment justified by a legitimate aim? Are the means of achieving that aim appropriate and necessary? Is the measure concerned perhaps a positive action designed to promote equal treatment of women and men? Holzleithner Goods and Services14

Interpretation Proposal (Third Division Austrian Equal Treatment Commission) Different prices or advantages for women and men cannot be a suitable means if they foster stereotypical gender behaviour. Art. 5 CEDAW (mandate for measures designed to bring about a change in social and cultural patterns of behaviour & conventional practices of men and women that are based on the assumed inferiority/superiority of one gender & stereotyped roles). Holzleithner Goods and Services15

Other Examples Differences in prize money at tennis tournaments Head scarves prohibited in a restaurant Womens hotel No children allowed in hotel Womens/mens day in sauna Only women allowed to stay with their sick children in hospital Night-time pilgrimage for men to Weizberg (see Tobler, equal treatment of men and women in access to goods and services) Holzleithner Goods and Services16