In the ongoing battle between the legal profession and the insurance industry, the latter currently sits at win-one-lose-one, but the big fight may be yet to come...
So, today the European Court of Justice has ruled that policies written on the basis of sex constitute discrimination and that the insurance industry has until the end of 2012 to adjust.
Essentially we are looking at lower annuity payments for men, higher car insurance for women and a win some lose some across the array of protection products (women will see cheaper income protection and pricier life policies, for example). The private medical industry does not routinely underwrite specific to sex, so to a large extent remains outside the issue.
Some sectors may even have a way forward through more sophisticated underwriting. According to a preliminary read through at the Association of Medical Insurance Intermediaries (AMII), it may be allowable to differentiate on biological grounds that do not highlight gender. Although this would not help car insurers, the sector most likely to take most of the headlines.
While insurers were not so lucky today, last month the insurance industry was granted the ability to continue to offer products with an age cut off, irrespective of the scrapping of the Default Retirement Age through age discrimination law.
The group risk sector gave a sigh of relief on that one, as there were fears it could mean the end of the sector. The likely scenario of a loss was employers likely to drop group schemes in the face of rising premiums and unlimited liability.
But it is not over yet folks, as insurers could yet be prevented from using age, health, or any other form of differentiation to underwrite and price products if a French administrative authority has its way.
The Halde (Haute Autorité de Lutte contre les Discriminations et pour l'Egalité) equal opportunities body wants to close the French and European legal loopholes that allow insurers narrow use of discrimination criteria for risk assessment and pricing.
It has decided this is discrimination and to be stamped out. It has already issued public recommendations to the France insurance market and has encouraged the prosecution of any illegitimate discrimination.
It is not difficult to see that this could have far wider repercussions than today's ruling and it could easily come to pass. Insurance lawyers from international legal practice Norton Rose LLP have already said: "Following the logic of the Test Achats case, pricing based upon other areas of discrimination such as religion or belief, disability, age or sexual orientation could also be found to be incompatible with EU law."
Although on 3 January Halde entered into a co-operation agreement with the Paris Prosecuting Attorney this battle has yet to get serious as, so far French politicians are resisting.
But watch this space.
