On a slightly different note, we seem to be blaming the European courts for this judgement, however they only make their judgements on the basis of what the law actually says
It doesnt necessarily have to follow, it just is at the moment.
The ECJ's ruling is based on ECJ advocate general Dr Julaine Kokott's view that using gender to differentiate between male and female insurance policies is in violation of EU law on human rights. Citing article 6 of the Lisbon treaty, Kokott noted that EU law "shall respect fundamental rights, as guaranteed by the European convention for the protection of human rights and fundamental freedoms" and the EU's own catalogue of justiciable rights, the charter of fundamental rights, which was given full legal effect for the first time by the Lisbon treaty in December 2009.
The references to both the European convention on human rights, overseen by the Council of Europe, and the EU's charter of fundamental rights illustrates the complex web of European human rights law that is now in the hands of European judges at both the Council of Europe's ECHR in Strasbourg and the EU's ECJ in Luxembourg.
Many feel that the case law of the ECJ and the ECHR is becoming progressively more blurred as EU judges continually make references to the European convention on human rights in their rulings. In a lecture last year, the Lord Chief Justice Lord Judge noted: "The European court of justice is beginning to acquire jurisdiction over matters that would normally be regarded as matters not for Luxembourg but for Strasbourg."
Simultaneously, the European commission is also embarking on an expansion of EU legislation on rights, particularly in criminal and judicial matters. In the words of Lord Judge, "I thought that was the job of the convention [on human rights]."
Why should we be concerned with this development? With a growing body of EU rights legislation, and the EU institutions and law expected to fall under the jurisdiction of the ECHR, the controversial cases will keep on coming as the concept of human rights is driven into new areas where it does not belong. The risk is that, in the growing confusion and interference, we lose all perspective on what constitutes a fundamental human right, trivialising what is a hugely important issue.
http://www.guardian.co.uk/commentisfree/2011/mar/01/insurance-human-rights-premiums-europe
