In his Opinion, the Advocate General proposes that the Court should declare that the German legislation precluding women in general from enlisting as volunteers in combat units is incompatible with the Equal Treatment Directive.
Tanja Kreil is qualified in electrical engineering and specialised in installation technology. In 1996 she applied to the German army (Bundeswehr) to serve in the branch responsible for the electronic maintenance of weapons systems. Her application was turned down, however, because under German law women are barred from all work involving the use of weapons and may be recruited into the armed forces only for service in the medical corps or the military band units.
The Administrative Court, Hannover - before which Ms Kreil challenged that rejection - accordingly asked the Court of Justice of the European Communities whether such legislation is compatible with the Community directive on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions.
The effect of the German legislation in question - the Law on Soldiers, the regulations governing careers in the military profession, even the German Constitution - is that most positions within the Bundeswehr are closed to women. That is to say, it discriminates on grounds of sex.
It must therefore be determined whether the German law here falls within one of the exemptions, provided for by the Directive, from the prohibition of discrimination. Derogation is possible, for instance, where a person's sex constitutes a determining factor for particular occupational activities by reason of their nature or the context in which they are carried out, or where the protection of women is paramount, in relation to pregnancy or motherhood.
The German Government has defended the legislation at issue in terms of the political aim pursued by the legislature since 1956 of ensuring that women can never be exposed to enemy fire in combat or, as combatants, made "prisoners of war" Ä a policy motivated, of course, by Germany's recent history.
In the view of the Advocate General, any derogation from the fundamental principle of equal treatment cannot be based on general social and political concerns, such as those espoused by the German Government. Moreover, according to the case-law of the Court, such a wide derogation is not lawful, although it may be permissible to allow an exception to the above principle in the case of certain occupational activities for which being of a particular sex is an essential requirement.
The exclusion of women from the Bundeswehr is not confined to particular units; it applies as a general rule to all branches (apart from medical units and military bands) and is therefore generic. This would be justifiable only if it were possible to show Ä and the German Government has failed to do so Ä that being a man is a determining factor for all combat units.
Consequently, the Advocate General proposes that the Court should declare that legislation, such as the German legislation at issue, which bars all women from enlisting in combat units of the armed forces, is incompatible with the Directive on equal treatment.
If, however, the Court should hold that the German legislation is compatible with the Directive, it would be for the national court to determine whether the rejection of Ms Kreil is in fact justified and consistent with the principle of proportionality. On that point, the Advocate General is somewhat sceptical as to whether barring women from the army is an effective means of ensuring that they are never exposed to enemy fire as combatants. He refers, for example, to the fact that the Federal armed forces are supported by an administrative structure staffed by 142,000 civilians - 49,500 of whom are women - who, one can safely assume, are bound on occasion to find themselves working alongside military personnel. The Advocate General also believes that the barring of women from the armed forces, allegedly for their own protection, may be irreconcilable with their employment in the police and the fire brigade.
NB.: The Opinion of the Advocate General is not binding on the Court of Justice. His role is to propose to the Court, acting with complete independence, a decision on the legal points raised in the case.
The Press and Information Division would also like to point out that a ruling was made today in Case C-273/97 Sirdar v The Army Board and Secretary of State for Defence on a question referred by the Industrial Tribunal of Bury St Edmunds. Ms Sirdar, a cook in the British Army since 1983, applied in 1994 for a transfer to the Royal Marines. Her application was turned down.
The Court has ruled that the Directive on equal treatment applies to the armed forces and that no general derogation is possible; nevertheless, it may be permissible to bar women in specific circumstances, in the case of special fighting units such as the Royal Marines.
For further information in this regard, please read the relevant press release.
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