In his opinion, the Advocate General reconciles the principle of equal treatment between men and women with the requirements imposed by the national defence in light of the principle of proportionality.
Mrs Angela Maria Sirdar was employed as a cook in the British Army since 1983 and was assigned to the Royal Artillery in 1990.
In 1994, she received a notice of redundancy due to overstaffing and which was justified by the need to reduce defence costs. Mrs Sirdar submitted a request to be transferred to the position of cook in the Royal Marines. Her request was rejected on the basis that this body did not admit female employees.
Mrs Sirdar brought a sex discrimination claim to the Industrial Tribunal of Bury St Edmunds. The Tribunal submitted questions to the Court of Justice of the European Communities concerning the widening of the scope of Community law to access and employment in the army or in one of its bodies, and in particular the applicability of the Directive on Equal Treatment between men and women in relation to access to employment and working conditions.
The Royal Marines body is a small unit (approximately 5900 military, ie 2% of the British armed forces) which is fundamentally characterised by its capacity for rapid action as an attack infantry in varied forms of military action.
It is organised on the basis of the principle of "interoperability" according to which each individual must be in a position to discharge quickly and independently of his specialisation, a series of tasks and to fight as part of an infantry. In theory, it is not possible to join the Royal Marines for the purpose of carrying out a specialised activity. This explains why the British government considers that the presence of women affects the military effectiveness of the bodies concerned.
On the basis of the case law of the Court, the Advocate General considers that the arguments of the governments, according to which defence would remain within the exclusive competence of the Member States (because of either an exemption provided for in the Treaty or the exclusive sovereignty which the states would enjoy in this matter), are not founded.
The specific exemptions concerning external safety provided for in the Treaty are, in his opinion, very exceptional and must therefore be interpreted in a particularly restrictive manner. They concern situations of war or of serious international tension constituting a war threat and cannot therefore be invoked to justify decisions of the Member States concerning the enrolment in the armed forces in normal situations.
In addition, the sovereignty of a Member State does not make it possible to exclude the field of employment in the armed forces from the scope of Community law.
The Advocate General points out that the Directive on Equal Treatment is of universal scope: the prohibition of discrimination on the basis of sex is defined as applicable to any sector or branch of activity and the only admitted exemptions are those provided for by the directive itself. The Court of Justice has already stated, in particular, that the directive is applicable to the field of internal safety itself.
The Advocate General considers that the field of defence shows precisely comparable characteristics with that of internal safety which invokes the application of the directive. The United Kingdom has indeed expressly recognised in the past that employment in the armed forces did not escape the scope of the directive: in 1994, it amended its national sex discrimination law to eliminate the provision which completely excluded the armed forces from its scope in order to bring it into conformity with Community obligations on this precise point.
The Advocate General examines the possibility for a Member State to exclude women from access to a department such as the Royal Marines on the basis of the exemption provided for by the directive in the case where sex is a determining condition for access to work. He considers that the nature of the military activities in itself is not sufficient to permit the application of this exemption.
On the other hand, the special conditions under which the Royal Marines operate and the principle of "interoperability" that it necessitates, could justify, at least theoretically, the decision not to admit women since the sex of an individual could constitute a determining factor for the purposes of the "interoperability" principle itself. However, this involves a thorough evaluation which must be carried out by the national authorities .
Finally, the Advocate General points out that in the evaluation which must be carried out, the judge must take account of the principle of proportionality in order to properly and rigorously check if the absolute exclusion of women from the Royal Marines is an appropriate and necessary mesure for the safeguarding of the military effectiveness of the body, by reconciling the principle of equal treatment with defence requirements. To this end, the Advocate General invites the national court to properly check if military effectiveness can be preserved including in situations where women are admitted.
N.B. There will now be a subsequent undertermined period of deliberation by the judges of the Court of Justice (in which the Advocate General takes no part) before a judgment is delivered.
The Press and Information Division also points out that the preliminary reference C-285/98 Kreil which was introduced by the Verwaltungsgerichts Hannover is pending. Mrs Kreil, an electronic technician applied for a post in the German army and her application was rejected: the German law precluded women from joining the army. The German court raised the question as to whether this German law complies with the equal treatment directive. The hearing will take place on 29 June 1999.
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