German legislation barring women outright from army jobs involving the use of arms is contrary to the Community principle of equal treatment for men and women. However, derogations remain possible where sex constitutes a determining factor for access to certain special combat units
Tanja Kreil, who has trained in electronics, applied in 1996 for service in the (weapons electronics) maintenance service of the Federal German army (Bundeswehr). Her application was rejected on the ground that German law bars women from military posts involving the use of arms.
Article 12a of the Grundgesetz für die Bundesrepublik Deutschland (Basic Law for the Federal Republic of Germany) provides:
"Men who have attained the age of eighteen years may be required to serve in the Armed Forces, in the Federal Border Guard, or in a Civil Defence organisation ... If, while a state of defence exists, civilian service requirements in the civilian public health and medical system or in the stationary military hospital organisation cannot be met on a voluntary basis, women between eighteen and fifty-five years of age may be assigned to such services by or pursuant to a law. They may on no account render service involving the use of arms". These provisions are applied as a general principle prohibiting women from performing armed service. Consequently, the German legislation (the Soldatengesetz, for example) provides that women may be recruited only as volunteers and only in the medical and military-music services.
After the rejection of her application Tanja Kreil brought an action in the Verwaltungsgericht (Administrative Court) Hannover. She claimed in particular that the rejection of her application on grounds based solely on her sex was contrary to Community law.
A 1976 Community directive on equal treatment for men and women, in particular as regards access to employment, prohibits any discrimination based on sex. It expressly provides that it is to be without prejudice to the right of Member States to exclude from its field of application those occupational activities and, where appropriate, the training leading thereto, for which, by reason of their nature or the context in which they are carried out, the sex of the worker constitutes a determining factor. The directive is also without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity.
The German court decided to stay proceedings and to ask the Court of Justice this question: Does the Community directive preclude the application of national provisions which bar women from military posts involving the use of arms and which only allow them access to the medical and military-music services?
In its judgment, the Court first reiterates its case-law: it is for the Member States, which have to adopt appropriate measures to ensure their internal and external security, to take decisions on the organisation of their armed forces. However, such decisions do not fall entirely outside the scope of the Community principle of equal treatment for men and women, which also applies, given its general scope, in the public sector (and therefore within the armed forces).
The Court observes that the exception covering "occupational activities for which, by reason of their nature or the context in which they are carried out, the sex of the worker constitutes a determining factor", as a derogation from an individual right laid down in the directive, must be interpreted strictly. The derogations provided for in the directive can apply only to specific activities for the exercise of which the Court has recognised that sex could constitute a determining factor (prison warders and head prison warders; policing activities performed in situations where there are serious internal disturbances - 1986 judgment in Johnston concerning the situation in Northern Ireland; service in certain special combat units in national armies -1999 judgment in Sirdar concerning the British Royal Marines operating in the frontline).
In determining the scope of any derogation from a fundamental right such as equal treatment of men and women, the principle of proportionality, which is one of the general principles of Community law, must be observed. That principle requires that derogations remain within the limits of what is appropriate and necessary in order to achieve the aim in view and requires the principle of equal treatment to be reconciled as far as possible with the requirements of public security which determine the context in which the activities in question are to be performed.
Given its scope, the exclusion of women from military posts involving the use of arms applies to almost all military posts in the Bundeswehr and, according to the Court, is not a derogating measure justified by the specific nature of the posts in question or by the particular context in which the activities in question are carried out. The fact that persons serving in the armed forces may be called on to use arms cannot in itself justify the exclusion of women from access to military posts. As the German Government itself explains, in the Bundeswehr services which are accessible to women, basic training in the use of arms, to enable personnel in those services to defend themselves and to assist others, is provided.
In those circumstances, the Court considers that, even taking account of the discretion which they have in the matter, the national authorities concerned contravened the principle of proportionality in taking the general position that the composition of all armed units in the Bundeswehr had to remain exclusively male.
Finally, as regards the provision of the directive relating to the protection of women, notably as regards pregnancy and maternity, it does not allow women to be excluded from a post on the ground that they should be given greater protection than men against risks to which both men and women are equally exposed.
Unofficial document, not binding on the Court of Justice, for use by the media. Available in all languages.
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For further information, please contact Fionnuala Connolly, tel. (352) 4303 3255 fax (352) 4303 2734.