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Critically Appraise the Decision of the European Court of Justice in Case C-236/09 Association belge des Conssommateurs Test-Ach - Essay Example

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CASE ANALYSIS By: name Instructor Institution Date Case Analysis This paper aims at analysing, critically, the European Court of Justice’s judgement in the Case “C-236/09 Association belge des Conssommateurs Test-Achats ASBL & Others v Conseil des ministres”…
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Download file to see previous pages These proceedings were against the Conseil des ministres (Council of Ministers) for annulment of a section of the law (UK Pensions Update, 2011). According to InfoCuria (n.d), Article 6(2) of the Amsterdam treaty depicts that the Union shall respect all fundamental rights already guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms that were enacted on 4 November 1950 in Rome. Article 6 of the Treaty on European Union bears was founded on principles of democracy, liberty, respect for fundamental freedoms and human rights and the rule of law. These principles are common in the member states’ constitutions as general principles contained in community law. Article 5(2) expressly permits discrimination by reference to existing statistical data (Burling and Lazarus, 2011). Such were the grounds upon which the Belgian consumer group and the two citizens founded their case to find appropriate interpretation from the European Court of Justice. The European Court of Justice (ECJ) was deemed as the appropriate authority in this ruling. Based in Luxembourg, it is composed of 15 judges appointed by the agreement of the Member State governments. Each of the judges serves a six-year renewable term in office. According to Lloyd, Bajwa and Sukhwinder (1997), the court's procedures place greater emphasis on written submissions rather that oral argument. Following the hearing, the advocate-general delivers his or her well-reasoned opinion on the case. The opinion should be highly persuasive, but not binding on the court, which may differ from the advocate-general's propositions. The complainants presented the issue before the Belgian Constitutional Court in an effort to inspire the annulment of the Belgian law that transposed the directive. It if from this perspective that the Belgian Constitutional Court asked the Court of Justice for appropriate assessment on the validity of the derogation with respect to higher-ranking legal rules, and with reference to the principle of equality of genders enshrined in European Union law (Europe Log, 2011). The directive provided that Member States had the authority to permit exemptions from the rule of unisex premiums and benefits for as long as they could prove that underlying actuarial and statistical data were reliable, available to the public and regularly updated. Under Belgian insurance law, the insurance contract must have an element of uncertainty. An insurance contract under Article 1A of the Insurance Contract Law, 1992 states: A contract according to which, in return for the payment of a fixed or variable premium, a party, the insurer, commits itself towards another party, the policyholder, to provide the benefit stipulated in the contract in case an uncertain even emerges, that depending on the circumstances, either the insured or the beneficiary does not wish to emerge. (Keulers and Lydian, 2011 p. 2). In Belgium, there are no special courts for insurance disputes. Insurance disputes are brought before any court although the domicile of the policyholder has jurisdiction. Regulation of the Belgian insurance sector is also under Europe's highest court, the ECJ, which issues directives to member countries. Premiums are usually fixed or variable amounts, annual or any other date that agreed upon ...Download file to see next pagesRead More
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