Polanyi in Brussels or Luxembourg? Social rights and market regulation in European insurance

The decision of the Court of Justice of the European Union to ban sex discrimination in insurance has shown the potential reach of the principle of non‐discrimination. This paper discusses the different positions taken by participants in the policy process leading up to the decision, in order to reveal the potential and limitations of non‐discrimination as the basis for market‐regulatory social policy. It is shown that the European Commission's initial support for prohibiting insurance discrimination faltered with the realization that the measure would have little efficacy as a distributive social policy. It was left to the Court to assert that non‐discrimination rights are constitutive for European markets, regardless of their functional and instrumental limitations. The Court's focus was on the market‐integrative potential of rights as sources of norms for the conduct of insurance relationships. It is argued that this form of constitutive regulation is distinct from distributive social policy as it does not require that outcomes are egalitarian, but, rather, that the processes governing market relations should respect fundamental rights.