One of the latest decisions relating to equal treatment of men and women was given by the Court on 11 March 2003 which concerned access to jobs in the armed forces. The Dory case[1] was preceded by several other cases originating from Germany and the United Kingdom.[2] Sirdar, Kreil and Dory focus on employment in the armed forces of the Member States. These cases have no "foreign" element, thus the rules on the free movement of persons are not applicable. Consequently the public policy proviso of Article 39(3)[3] of the Treaty establishing the European Community (TEC) which allows Member States to derogate from the principle of free movement of persons on grounds of public policy, public security or public health cannot be relied on.
The facts of Sirdar, Kreil and, most recently, Dory had to be decided on the basis of the Social Chapter (Title XI, Chapter 1) of the EC Treaty and the secondary law adopted to implement the principle of equal pay and equal treatment of men and women. Article 141 of the Treaty provides for the principle of equal pay for equal work (or work of equal value after Amsterdam). Since this rule is restricted to only one, though very important, aspect of employment, from the seventies onwards several directives have been adopted to widen the scope of the principle. Among the series, the most relevant to our examination is the so-called Equal Treatment Directive.[4]
Article 2(1) of this Directive provides that "the principle of equal treatment shall mean that there shall be no discrimination whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status". However, there are several possibilities for Member States to exclude the application of the Directive. These are listed in the next paragraphs of Article 2. Article 2(2) provides that Member States may exclude those 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. Paragraph (3) permits measures taken to protect women, particularly as regards pregnancy and maternity. Finally, positive discrimination is also permissible under the Directive. Thus e.g. the quota-system - giving preference to women in sectors where they are under-represented - is compatible with Community law provided it does not automatically and unconditionally grants priority to women when women and men are equally qualified, and the candidatures are the subject of an objective assessment which takes account of the specific personal situations of all candidates.[5]
Although Member States may and do exercise these options to derogate from the principle of equal treatment, their power is not unfettered. The Court has emphasised that since Article 2(2) constitutes a derogation from an individual right, this provision must be interpreted strictly.[6] Furthermore, the national measures derogating from a Community principle must satisfy the requirement of proportionality. This requirement prescribes that the derogations remain within the limits of what is appropriate and necessary in order to achieve the aim in view.[7] Finally, Article 9(2) requires Member States to "periodically assess the occupational activities referred to in Article 2(2) in order to decide, in the light of social developments, whether there is justification
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for maintaining the exclusions concerned."[8]
In their submissions in Sirdar, Kreil and Dory, the Member States placed special emphasis on the particular employment in question, notably employment in the armed forces. Their approach in general may be summarised as follows.
The defendant Governments, and those intervening, argued first that the organisation of armed forces in their countries forms part of their defence policy, which lies outside the scope of Community law.[9] This argument thus relates to the distribution of competences between the Community and the Member States.
In the alternative, the Governments argued that they are justified in excluding the application of Directive 76/207 on the basis of a general public proviso - i.e. the protection of public security constitutes a legitimate aim for not applying the principle of equal treatment of men and women.[10] Member States relied on general considerations derived from the objectives of the Treaty, and on certain specific provisions like Articles 39(4) and 297. The first provision provides that the principle of free movement of persons does not apply to the public service, while Article 297 is a safeguard clause which relates to internal disturbances or war.[11]
Finally, Member States contended that Article 2(2) and (3) of Directive 76/207 justified the exclusion of women from several posts in the armed forces.[12]
Before we take a closer look on these three cases it must be pointed out that there is a basic difference between the Sirdar and Kreil case on the one hand, and the Dory case, on the other - which resulted in very different judgments. The first two concerned access to posts in the army on a voluntary basis, while the latter related to compulsory military service. In Sirdar and Kreil the Court found that Community law was applicable and went on to decide whether the national measures were compatible with Community law.[13] However, in Dory the Court reached a different conclusion.[14]
After these preliminary remarks, the Sirdar and Kreil cases will be briefly summarised, then I will go on to elaborate on the questions raised by the facts of Dory. I will also show how the Court reacted to the pleadings of the Member States.
The following cases concerned access to certain posts - on a voluntary basis - in the armed forces of the UK and Germany, respectively. Mrs. Sirdar wanted employment as a chef in the Royal Marines, while Tanja Kreil applied for a job of weapons technician.
Mrs. Sirdar was rejected a job of a chef in the British Royal Marines which was previously offered to her in error and was informed that she was ineligible by reason of the policy of excluding women from this unit of the British Army. Prima facie the situation is obviously an example of direct discrimination: she was refused a job on grounds of her sex.
The Court first had to deal with the arguments relating to the scope of Community law. The British Government pleaded that decisions taken by Member States with regard to access to employment in the armed forces fell outside the scope of the EC Treaty and/or its subordinate legislation, in particular Directive 76/207. The Court, however, rejected it.
"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. It does not follow, however, that such decisions must fall entirely outside the scope of Community law."[16]
Having laid down that access to an occupation in the armed forces was not within the exclusive competence of Member States, the Court went on to elaborate on the scope of the public security exception. It emphasised that there is no general exception inherent in Community law covering all measures taken by Member States for reasons of public security. The only articles in which the EC Treaty provides for derogations on the basis of public security are exceptional and clearly defined cases.[17] Furthermore, in accordance with settled case-law, the Equal Treatment Directive applies to employment in the public service.[18]
What remained to be decided was whether, and if so, under what conditions the exclusion of women from the Royal Marines may be justified under Article 2(2) of Directive 76/207.
The British authorities argued with the special characteristics of the Royal Marines which differed fundamentally from other units of the armed forces. They are a small force and are intended to be the first line of attack. The authorities laid special emphasis on what they termed as interoperability by which they meant the ability of an individual (even of a chef) to perform more than one task. Each and every member of the corps are engaged and trained to be capable to serve in the first line.[19]
The Court - accepting the submissions of the British authorities - reached the conclusion that under
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these circumstances the exclusion of women may be justified, having regard to the nature of the activities, and the context in which they are carried out.[20]
Tanja Kreil applied for a job in the German Bundeswehr which also involved the use of arms. However, the national rules restricted the (voluntary) employment of women in the army to the medical and military-music services. That meant that women were totally excluded from the armed units of the German armed forces.
In the litigation the German Government resorted to the usual line of argument: Community law does not in principle govern matters of defence, which form part of the field of common foreign and security policy and which remain within the Member States' sphere of sovereignty[22] However, following Sirdar, the Court found the Directive applicable.[23]
The arguments of Germany[24] based on the derogations permissible under Article 2 of the Directive were also rejected. While the Court found that Article 2(3) was not applicable at all, in relation to Article 2(2) the crucial observation concerned the principle of proportionality. The Court found the exclusion of women all-catching, thus incompatible with Community law, since it applied to almost all military posts, without having regard to the particular activities. Thus it violated the principle of proportionality.
This is where the law stood when the Dory case reached the Court. By this time it has been settled in case law that decisions taken by the Member States concerning access to employment in the armed forces do fall within the ambit of Community law. Furthermore, the Court emphasised that there is no implied provision excluding public service from the scope of Community law. Only explicit and specific derogations are provided for by Community law which, being derogations from a Community principle, are to be interpreted strictly. Thus Directive 76/207 is also applicable in the public service. If national authorities rely on the option available under Article 2(2) of Directive 76/207, they enjoy a certain measure of discretion. However, the measures taken must pursue that objective (e.g. external security) and must be proportionate to the aim sought.
The facts of the case are very simple: Mr. Dory was called to serve a compulsory one year in the army. Since the obligation to perform military service is imposed on men only, the applicant thought that it was contrary to the principle of equality.
However, these facts obviously give rise to much more fundamental questions. Does the scope of Community law extends to the choice of a Member State how to organise its national defence? Or do Member States retain the right to decide independently - either to maintain the conscript army or substitute it for a professional army (or have a mixture of the two)? It is well-known that in Europe "the elimination of compulsory military service accelerated from the mid-90s. European NATO states have been converting to voluntary military force one after the other."[25] Germany operates a mixed system: "without showing any signs of willingness to convert into a voluntary system, the German army has already employed contracted soldiers in a great number."[26]
In the present case Mr Dory argued that there were no longer any objective reasons to justify women being exempted from military service. He thought it inconsistent that while women had won the right in the Court's case law to have access to posts involving the use of arms, they were still exempt from the obligation of military service.
The relevant German authorities (the District Recruiting Office and the Military Area Administration) argued that Kreil concerned only the voluntary access of women to careers in the armed forces, not the question of compulsory military service, and that the obligation to perform such service remained within the sole competence of the Member States.
The (quite Community-minded) national court, however, was not totally convinced. It thought that as the performance of military service delayed access by men to employment, the applicability of Directive 76/207 might arise.[27] The Verwaltungsgericht Stuttgart proved open to the arguments of Dory who contended that compulsory military service has direct as well as indirect consequences on his employment chances. Clearly, during military service he is totally excluded from taking up an employment. But even before commencing the service " [e]mployers also hesitate to employ men of that age, because of the risk of absence as a result of the obligation to perform military service."[28]
In an Article 234 procedure the German court referred the following question to the European Court of Justice: "Having regard in particular to the interpretation of Article 2 of Directive 76/207/ EEC ... , is the fact that in Germany military service is compulsory only for men contrary to Community law?"[29] In other words, the German court asked
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whether this difference in treatment could be regarded as discrimination based on sex, and if yes, whether it could be justified.
The German Government argued that the organisation of compulsory military service fell under exclusive Member State competence. The Commission also supported this point by invoking Article 6(3) of the Treaty on European Union (TEU) and Article 5 TEC.[30]
Should the Court find that military service fall within Community competence, the Government further submitted that limiting compulsory military service to men was not incompatible with Community law. Most importantly, both Article 141 of Treaty and Directive 76/207 govern employment relationships based on a contract between the employer and the employee, while "[c]ompulsory military service is a unilateral civic duty imposed by authority with no entitlement to pay."[31] Furthermore, Article 141 only relates to the principle of equal pay and thus does not cover access to employment.
The Court accepted the first submission of the Government thus it was not necessary to deal with the other set of arguments. The Court began with the reiteration of its previous findings relating to the matter. National measures guaranteeing public security or national defence are not completely outside Community law. There is no inherent general exception excluding all measures taken for reasons of public security from the scope of Community law.[32] "Decisions of the Member States concerning the organisation of their armed forces cannot be completely excluded from the application of Community law".[33]
However, the introduction of a general obligation to perform military service is a political decision of the Member State outside the scope of Community law. It is for the Member States to choose the type of military organisation for the defence of their territory. Compulsory service might have (and does have) adverse effects on men, however, this is an inevitable consequence of the system. Community law cannot compel Member States either to extend proscription to women, or to abolish compulsory military service.[34]
The decision of the Court is clear-cut: Community law is not applicable, thus the Court cannot be of assistance to the national court in the interpretation of Community rules, even less with the interpretation of national law to which it is not entitled under Article 234.[35] The Advocate General reached the same conclusion as well.[36] However, it might be interesting to take a closer look at the Opinion of Advocate General Stix-Hackl, who also addressed the question whether for the adverse effects on employment chances Directive 76/207 might nevertheless be applicable.
The Advocate General pointed out that in the Dory case the national measure in question did not have the objective of regulating access to a (here military) post but nonetheless compulsory military service had adverse effects on access to the civilian labour market. Having regard to the aim of the national measure, the Advocate General distinguished the following categories. Firstly, if the national law has the object of regulating access to the labour market this clearly falls within the ambit of Directive 76/207. Secondly, if the domestic regulation has a secondary aim of sex-specific regulation of access to labour market, these cases are also covered by Directive 76/207, read together with Article 3(2) TEC[37] which was not yet in force when the Directive was adopted. Finally, if the national measure under scrutiny has an objective exclusively other than access to employment (as in Dory the guaranteeing of external security), the Equal Treatment Directive is not applicable.[38]
We saw that the Court in Sirdar and Kreil accepted that Directive 76/207 was applicable to access to posts in the armed forces. The Court also added that is was for the Court to ascertain whether measures taken by the national authorities in fact pursued the aim of guaranteeing public security, and whether they were appropriate and necessary to achieve that aim. Even though national authorities enjoy a certain margin of discretion, this power is not unfettered.
Bearing in mind the complexity and sensitiveness of the issue, it was no surprise that in Dory the Court was reluctant to rule on the compatibility with Community law of compulsory military service for men only, even less on the whole system of compulsory military service. The Court had previously displayed the same reluctance relating to other fundamental choices of Member States, like permitting or prohibiting the voluntary (medical) termination of pregnancy in SPUC v. Grogan.[39]
The latest developments in legislation reaffirm the ratio of the judgment. The Draft Treaty establishing a Constitution for Europe of 27 June 2003 expressly states that the Union shall respect the national identities of Member States, and "their essential State functions, including for ensuring the territorial integrity of the State, and for maintaining law and order and safeguarding internal security."[40]
Moreover, according to the Updated Explanations relating to the text of the Charter of Fundamental Rights,41 the prohibition of slavery and forced labour - having the same meaning and scope as Article 4(1) and (2) of the European Convention on Human
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Rights - does not include any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service.
Thus it seems unequivocal that those fighting for the abolition of compulsory military service will not be able to support their case on the basis of the equal treatment provisions of Union law. They have to rely on other arguments instead, like the costs of maintaining a conscript army, its (lack of) efficiency, or they can point out the probably weakest and most sensitive feature of the system: compulsory military service arguably violates the right to life, human dignity and integrity, and the prohibition of forced or compulsory labour.[42] ■
NOTES
[1] Case C-186/01, Alexander Dory v. Bundesrepublik Deutschland, not yet reported.
[2] The Sirdar and Kreil cases: Case C-273/97 Sirdar v. The Army Board and Secretary of State for Defence, [1999] ECR I-7403; Case C-285/98 Tanja Kreil v. Bundesrepublik Deutschland, [2000] ECR I-69, see below.
[3] The new numbering introduced by the Amsterdam Treaty is used.
[4] Council Directive 76/207/EEC 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, OJ 1976 L 39/40; which has recently been amended by Directive 2002/73/EC, OJ 2002 L 269/15. The other Directives relating to equal treatment include Council Directive 75/117/EEC on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women, OJ 1975 L 45/19; Council Directive 86/613/EEC of 11 December 1986 on the application of the principle of equal treatment between men and women engaged in an activity, including agriculture, in a self-employed capacity, and on the protection of self-employed women during pregnancy and motherhood, OJ 1986 L 359/56; Council Directive 96/34/EC on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC, OJ 1996 L 145/4; Council Directive 97/80/EC on the burden of proof in cases of discrimination based on sex, OJ 1998 L 14/6; Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ 2000 L 180/22; and Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, OJ 2000 L 303/16.
[5] Paragraph 23 of the judgment in Case C-158/97 Badeck v. Hessischer Ministerpräsident and Landesanwalt beim Staatsgerichtshof des Landes Hessen, [2000] ECR I-1875. See further Case C-450/93 Kalanke v. Freie Hansestadt Bremen, [1995] ECR I-3051; Case C-409/95 Helmut Marschall v. Land Nordrhein-Westfalen, [1997] ECR I-6363; and Case C-407/98 Catarina Abrahamsson and Leif Anderson v. Elisabeth Fogelgvist, [2000] ECR I-5539.
[6] E.g. paragraph 26 of Case 222/84 Johnston [1986] ECR 1651 and paragraph 23 of Sirdar.
[7] Johnston paragraph 38, Sirdar paragraph 26.
[8] Emphasis added.
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[9] Sirdar paragraph 13, Kreil paragraph 12, Dory paragraph 24.
[10] Sirdar paragraph 13, Kreil paragraph 18, Dory paragraph 25.
[11] In other words, state of emergency. - In Johnston AG Darmon argued that Article 297 constitutes "the ultima ratio to which recourse may be had only in the absence of any Community provision enabling the demands of public order in question to be met". Point 5 of the Opinion.
[12] Sirdar paragraph 21, Kreil paragraph 12.
[13] In Sirdar the exclusion of women from the British Royal Marines was found to be justified. In Kreil the Court found that the total exclusion of women from armed units of the German Bundeswehr was not permissible because it violated the principle of proportionality. See below.
[14] Paragraph 39 of the judgment. "The decision of the Federal Republic of Germany to ensure its defence in part by compulsory military service is the expression of such a choice of military organisation to which Community law is consequently not applicable." Emphasis added.
[15] Case C-273/97, [1999] ECR I-7403.
[16] Paragraph 15.
[17] Articles 30, 39, 46, 296 and 297. - Note also: "Wherever the Treaty grants the States the right to act unilaterally, it does this by clear and precise provisions (for example Articles 15, 93(3), 223, 224 and 225)". Costa v. ENEL, Case 6/64, [1964] ECR 585.
[18] Paragraphs 16-18.
[19] Paragraph 30.
[20] Since the Court found the exclusion justified, it did not address the questions of the referring industrial tribunal relating to effect of Article 297 to the present case.
[21] Case C-285/98, [2000] ECR I-69.
[22] Paragraph 12.
[23] Paragraphs 15-25.
[24] The Government argued that even if the Directive could apply to the armed forces, the national provisions in question are justifiable under Articles 2(2) and (3) of the Directive.
[25] Farkas, Henrik: About compulsory military service - in a committed way. A lecture delivered at a Conference organized by the Szeged Centre for Security Policy, 14 April 2000. See: http://www.scsp.hu/eng/archives/2000apr/hadk.htm.
[26] Dr. András Ujj, a speech delivered at a Conference held in Szeged, 14 April 2000. See http://www.scsp.hu/eng/archives/2000apr/volu.html, 18 June 2003.
[27] The national court added a very "equality-minded" remark: "On the other hand, the [national] court considered that that difference in treatment could nevertheless be justified as specific preferential treatment for women, compensating in part for the periods of interruption of work due to maternity and child-rearing." Paragraph 18 of the Judgment.
[28] Opinion of the Advocate General, point 23.
[29] Paragraph 19 of the Judgment. - The Advocate General argued that the question of the national court must be reformulated since the Court has no power in the context of Article 234 EC to rule either on the interpretation of national laws or on their conformity with Community law. The Court may, however, supply the national court with an interpretation of Community law that will enable that court to resolve the legal problem before it. Thus the Advocate General suggested the following reformulation: Must Community law be interpreted as precluding a national provision such as German compulsory military service which applies to men only? Points 17 and 20 of the Opinion. - The Court did not elaborate on this point.
[30] Article 6(3) TEU states that "[t]he Union shall respect the national identities of its Member States." Article 5 TEC lists several important principles - limited powers of the Community (legality); subsidiarity, proportionality - relating to the distribution of competences between the Community and its Member States.
[31] Opinion of the Advocate General, point 73. - The Commission supported the arguments of the Government: "... compulsory military service, as it developed in the traditions of many European States from the end of the 18th century, constitutes a unilateral public-law service obligation and does not give rise to an employment relationship. The person performing military service provides services - perhaps even against his will - while the State merely grants him a certain financial support, but not a wage. Military service is not therefore part of the labour market." Point 44 of the Opinion.
[32] Paragraphs 30-31.
[33] Paragraph 35.
[34] Paragraph 40.
[35] See note 29.
[36] Points 63 and 106-108.
[37] "In all the activities referred to in this Article, the Community shall aim to eliminate inequalities, and to promote equality, between men and women."
[38] Points 98, 105 and 107.
[39] Case C-159/90 The Society for the Protection of Unborn Children Ireland Ltd v Stephen Grogan and others. [1991] ECR I-4685. On the issue of national traditions see Steyger, Elies: National traditions and European Community Law: margarine and marriage (England, 1997).
[40] Article I-5: Relations between the Union and the Member States. CONV 820/1/03 REV 1. See: http://european-convention.eu.int/docs/Treaty/cv00820-re01.en03.pdf.
[41] 9 July 2003, CONV 828/03. See: http://register.consilium.eu.int/pdf/en/03/cv00/cv00828en03.pdf.
[42] See Farkas, Henrik: About compulsory military service, note 25 above. The author goes as far as to term compulsory military service as modern state slavery.
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Visszaugrás
