ACCESS TO GOODS AND SERVICES AND THEIR SUPPLY (EQUAL TREATMENT) REGULATIONS (equaltreatment)

SUBSIDIARY LEGISLATION 456.01

ACCESS TO GOODS AND SERVICES AND

THEIR SUPPLY (EQUAL TREATMENT)

REGULATIONS

1st August, 2008

LEGAL NOTICE 181 of 2008, as amended by Legal Notice 417 of 2012.

(1) The title of these regulations is the Access to Goods

and Services and their Supply (Equal Treatment) Regulations.

(2)

(a) These regulations give effect to the relevant provisions

of Council Directive 2004/113/EC implementing the

principle of equal treatment between men and women

in the access to goods and services and their supply.

(b) These regulations also give effect to the Communication

from the European Commission (22.12.2011 C(2011)

9497) containing Guidelines on the application of

Council Directive 2004/113/EC to insurance, in the light

of the judgment of the Court of Justice of the European

Union in Case C-236/09 (Test-Achats).

(3) These regulations shall apply to all persons who provide

goods and services made available to the public irrespective of the

person concerned as regards both the public and private sectors,

including public bodies, and which are offered outside the area of

private and family life, and to all transactions carried out in this

context.

(4) These regulations do not prejudice the freedom of an

individual to choose a contractual partner as long as such choice of

a contractual partner is not based on the gender of that person.

(5) These regulations shall not apply to matters of employment

and occupation, nor to matters of self-employment, insofar as these

matters are covered by other laws and regulations.

(6) These regulations shall be without prejudice to more

favourable provisions concerning the protection of women as

regards pregnancy and maternity.

In these regulations unless the context otherwise requires

"the Act" means the Equality for Men and Women Act;

"the Commission" means the National Commission for the

Promotion of Equality for Men and Women established in terms of

article 11 of the Act and includes any officer of the Commission

duly authorised by it to act on its behalf for any specific purpose

under the Act, and the term "Commissioner" shall be construed

accordingly;

"equal treatment" means the absence of discrimination, whether

direct or indirect, on grounds of sex, by reference in particular to

marital or family status.

The purpose of these regulations is to lay down a

framework for combating discrimination based on gender in the

access to and supply of goods and services, with a view to putting

into effect in the access to such goods and services and their supply

the principle of equal treatment between men and women.

(1) It shall be unlawful for a person to subject another

person to discriminatory treatment, whether directly or indirectly,

on the grounds of sex, including discriminatory treatment related to

pregnancy or maternity.

(2) Without prejudice to the provisions of the Act and of the

Employment and Industrial Relations Act

"direct discrimination" shall be deemed to occur where

one person is treated less favourably, on grounds of

sex, than another is, has been or would be treated in a

comparable situation; and

"indirect discrimination" shall be deemed to occur

where an apparently neutral provision, criterion or

practice would put persons of one sex at a particular

disadvantage compared with persons of the other sex,

unless that provision, criterion or practice is

objectively justified by a legitimate aim and the means

of achieving that aim are appropriate and necessary.

(3) Harassment and sexual harassment shall also be deemed to

constitute discrimination for the purposes of these regulations. A

p e r s o n ’s r e j e c t i o n o r s u b m i s s i o n t o h a r a s s m e n t o r s e x u a l

harassment may not be used as a basis for a decision affecting that

person.

(4) Without prejudice to the provisions of the Act and of the

Employment and Industrial Relations Act

"harassment" shall be deemed to occur where an

unwanted conduct related to the sex of a person occurs

with the purpose or effect of violating the dignity of a

person and of creating an intimidating, hostile,

degrading, humiliating or offensive environment; and

"sexual harassment" shall be deemed to occur where

any form of unwanted physical, verbal, non-verbal or

physical conduct of a sexual nature occurs, with the

purpose or effect of violating the dignity of a person,

in particular when creating an intimidating, hostile,

degrading, humiliating or offensive environment.

(5) For the purposes of these regulations, any person or

organisation to whom these regulations apply shall also be deemed

to have discriminated against a person if they neglect their

obligation to prevent any form of harassment or sexual harassment

within their organisation.

(6) Instruction to direct or indirect discrimination on the

grounds of sex shall be deemed to be discrimination within the

meaning of these regulations.

(7) Discrimination shall also be deemed to have occurred when

a person is victimised for having made a complaint to the lawful

authorities or for having initiated or participated in proceedings for

redress on grounds of alleged breach of the provisions of these

regulations, or for having disclosed information, confidential or

otherwise, to a designated public regulating body, regarding

alleged illegal or corrupt activities being committed by any person

falling within the scope of these regulations or by persons acting in

such person’s name and interests.

(8) These regulations shall not preclude differences in

treatment, if the provision of the goods and services exclusively or

primarily to members of one sex is justified by a legitimate aim and

the means of achieving that aim are appropriate and necessary.

(1) Subject to sub-regulation (2), the use of sex as a factor in

the calculation of premiums and benefits for the purposes of insurance

and related financial services shall not result in differences in the

premiums and benefits relating to an individual with respect to

insurance contracts concluded after 21st December 2007 where the

policyholder is an individual.

(2) The provisions of sub-regulation (1) shall not apply with

respect to insurance contracts concluded before 21st December 2012,

where the use of sex is a determining factor in the assessment of risk,

if the resulting differences in the premiums and benefits relating to an

individual are proportionate, and where this assessment is based on

relevant and accurate actuarial statistical data.

(3) For the purposes of sub-regulation (2), providers of insurance

and related financial services who use such a determining factor

shall file an annual notification to such effect with the

Commission.

(4)

Such notification shall include the following details

(a) the name of the service provider;

(b) the product or service in relation to which the

notification is being filed;

(c) a rationale as to why the use of sex is a determining

factor; and

(d) the actuarial statistical data on which this rationale is

based.

(5) For the purposes of sub-regulation (2), an insurance

contract shall be deemed to have been concluded before 21st

December 2012 notwithstanding that

(a) the said insurance contract is extended automatically

on or after 21st December 2012 on the basis of terms

and conditions in an insurance contract concluded

before 21st December 2012 (hereinafter referred as a

"pre-existing contract"); or

(b) the said insurance contract is amended on or after 21st

December 2012 on the basis of terms and conditions in

a pre-existing contract, where the consent of the

policyholder is not required; or

(c) the said insurance contract is a top-up or follow-on

insurance policy whose terms were agreed in a pre-

existing contract, where such insurance contract is

activated by the unilateral decision of the

policyholder; or

(d) a pre-existing contract is amended on or after 21st

December 2012 on the request and with the consent of

the policyholder, on condition that such amendment

does not result in any increase in premium; or

(e) the said insurance contract is part of a scheme under

which an insurance company transfers to another

insurance company all rights and obligations arising

from pre-existing contracts in accordance with the

provisions of the Insurance Business Act.

With a view to ensuring full equality in practice between

men and women, the principle of equal treatment shall not prevent

any person from maintaining or adopting specific measures to

prevent or compensate for disadvantages linked to sex.

(1) Persons who feel that the principle of equal treatment

within the scope of these regulations has not been applied to them,

shall have a right to file a complaint with the Commissioner and

the Commissioner shall initiate the proceedings prescribed in the

Act or in any other applicable law or regulation.

(2) Without prejudice to subregulation (1), a person who

alleges that any other person has committed in his or her regard any

unlawful act under these regulations shall, within twenty-four

months of the alleged breach, have a right of action before the

competent court of civil jurisdiction requesting the court to order

the defendant to desist from such unlawful act and to order the

payment of compensation for such damage suffered through such

unlawful act.

(3) In any proceedings mentioned in subregulations (1) and (2)

hereof, where persons who consider themselves wronged since the

principle of equal treatment has not been applied to them, establish

before any competent Court or Tribunal facts from which it may be

presumed that there has been direct or indirect discrimination, it

shall be for the defendant to prove that there has been no breach of

the principle of equal treatment on the hearing of the complaint,

and the Court or Tribunal shall uphold the complaint if the

defendant does not prove that he did not commit that unlawful act.

(4) In any such action as is provided under subregulation (2),

the plaintiff shall moreover and in addition to such damages and

costs as may have been actually suffered and as may be due

according to law, be entitled to recover by way of compensation

such sum of money as the court may in its discretion consider

reasonable taking into account all the circumstances of the case.

The court shall however ensure that compensation is dissuasive and

proportionate to the damage suffered.

Nothing shall prevent any association, organisation or

other legal entity, having a legitimate interest in ensuring that the

provisions of these regulations are complied with, from engaging

itself either on behalf or in support of the complainant, with his or

her approval, in any judicial or administrative procedure as is

provided for the enforcement of obligations under these

regulations.

For the purposes of these regulations, and without

prejudice to article 12 of the Act, the functions of the Commission

shall include

(a) providing independent assistance to victims of

discrimination in pursuing their complaints about

discrimination;

(b) conducting

independent

surveys

concerning

discrimination; and

(c) publishing

independent

reports

and

making

recommendations on any issue relating to such

discrimination.

(1) Persons and organisations to whom these regulations

apply shall take the necessary measures to ensure that the principle

of equal treatment is respected in relation to the access to and

supply of goods and services within the scope of these regulations,

and in particular that administrative provisions contrary to the

principle of equal treatment are abolished and that any contractual

provisions, internal rules of undertakings and rules governing

profit-making or non-profit-making associations contrary to the

principle of equal treatment are abolished or amended.

(2) In any case, any provision or practice contrary to the

principle of equal treatment shall be null and void.

Any person who sexually harasses any other person in

breach of the provisions of these regulations shall be guilty of an

offence and shall, on conviction, be liable to a fine (multa) not

ex cee di ng tw o t h ou san d t h ree h un dre d eu ro (€ 2,3 00 ) or to

imprisonment for a period not exceeding six months, or to both

such fine and imprisonment.