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A Rights Revolution in Europe? Regulatory and judicial approaches to nondiscrimination in insurance

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  • Deborah Mabbett

Abstract

In a recent decision, the European Court of Justice has ruled that insurers cannot discriminate on grounds of sex in setting premiums or determining benefits. This paper discusses the background to this decision. It asks whether we are seeing a US-style ‘rights revolution’, fuelled by judicial activism, as suggested by Dobbin et al’s hypothesis of ‘the strength of weak states’ or Kagan and Kelemen’s account of ‘adversarial legalism’. It is shown that neither of these theories captures the distinctive nature of the ECJ’s intervention. An industry-friendly policy was pursued in regulatory venues, but this was overridden by the ECJ’s interpretation of the fundamental right of equal treatment. However, it is also shown that the judicial defence of fundamental rights is a weak basis for social policy, and does not foreshadow a revolution in the development of social rights in Europe.

Suggested Citation

  • Deborah Mabbett, 2011. "A Rights Revolution in Europe? Regulatory and judicial approaches to nondiscrimination in insurance," LEQS – LSE 'Europe in Question' Discussion Paper Series 38, European Institute, LSE.
  • Handle: RePEc:eiq:eileqs:38
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    File URL: http://www.lse.ac.uk/europeanInstitute/LEQS/LEQSPaper38.pdf
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    References listed on IDEAS

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    1. Wilson, Charles, 1977. "A model of insurance markets with incomplete information," Journal of Economic Theory, Elsevier, vol. 16(2), pages 167-207, December.
    2. K. Kivanç Karaman & Sevket Pamuk, 2011. "Different Paths to the Modern State in Europe: The interaction between domestic political economy and interstate competition," Europe in Question Discussion Paper Series of the London School of Economics (LEQs) 7, London School of Economics / European Institute.
    3. Yves Thiery & Caroline Van Schoubroeck, 2006. "Fairness and Equality in Insurance Classification*," The Geneva Papers on Risk and Insurance - Issues and Practice, Palgrave Macmillan;The Geneva Association, vol. 31(2), pages 190-211, April.
    4. Fenn, Paul & Vencappa, Dev & Diacon, Stephen & Klumpes, Paul & O'Brien, Chris, 2008. "Market structure and the efficiency of European insurance companies: A stochastic frontier analysis," Journal of Banking & Finance, Elsevier, vol. 32(1), pages 86-100, January.
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    Keywords

    Adversarial legalism; discrimination; Gender Directive; insurance; weak state;

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