The Court of Justice has ruled, however, that the Royal Marines, as special combat units pursuing activities for which sex is a determining factor, are entitled to exclude women.
Mrs Sirdar was employed as a chef in the British Army from 1983. In 1990, she was assigned to the Royal Artillery.
In February 1994, she was made redundant as part of a measure to reduce defence costs. Mrs Sirdar applied to be transferred as a chef to the Royal Marines. However, her application was rejected as the Royal Marines do not admit women.
The fundamental characteristic of the Royal Marines is their rapid deployment capacity, as assault troops, in a wide variety of military actions and close engagement with the enemy.
They are organised on the basis of the principle of interoperability. This means that each individual, irrespective of his specialisation, must be able to serve at any time within his rank and according to his level of skill in a commando unit. Consequently, the employment of women in the Royal Marines, according to the Royal Marine authorities, would not allow for the maintenance of interoperability.
Mrs Sirdar considered that she was the victim of discrimination on the grounds of sex and referred the matter to the Industrial Tribunal in Bury St Edmunds. The Industrial Tribunal referred a number of questions concerning the principle of equal treatment between men and women as regards access to employment in the army or a unit of the armed forces to the Court of Justice of the European Communities.
The Court observed, at the outset, that whilst the Member States were free to take decisions regarding the organisation of their armed forces, those decisions remained subject to Community law (apart from exceptional cases which were strictly defined). Thus, decisions regarding, in particular, access to employment in the armed forces were generally required to observe the principle of equal treatment between men and women.
However, the Court considered that the Royal Marines were organised in a way which differed fundamentally from the way in which other units of the British armed forces were organised. Within that unit, chefs were in fact also called to serve in front-line commandos, no exceptions being permitted to the rule.
The Court observed that Community law provides for strictly defined exceptions (they must be appropriate and necessary to the aim to be achieved) to the application of the principle of equal treatment where sex is a determining condition for the exercise of the activity in question in view of its nature, and the national authorities enjoy a certain margin of discretion in adopting the measures which they consider necessary to guarantee public security.
The Court considered that in the circumstances of this case, the national authorities could, in the exercise of that discretion, reserve access to the Royal Marines exclusively for men owing to the specific conditions governing their deployment as front-line commando units.
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