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In a judgment given on 11 January 2000, the European Court of Justice ruled that German legislation barring women from employment involving the use of arms in the German army is contrary to the Community principle of equal treatment between men and women, although derogations concerning certain special combat units are possible.
In its judgment in Case C–285/98: Tanja Kreil v Federal Republic of Germany, given on 11 January 2000, theEuropean Court of Justice (ECJ) ruled against German legislation prohibiting the employment of women in jobs in the army which involve the use of weapons.
In 1996,Tanja Kreil applied to join the weapons electronic maintenance service of the Federal German army (Bundeswehr). The application was rejected on the ground that Article 12a of the Basic Law for the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland) bars women from rendering service involving the use of arms and that legislation regulating soldiers (Soldatengesetz) allows women to be recruited only as volunteers and only in the medical and military music services.
Ms Kreil brought an action in the Hannover Administrative Court, claiming that the rejection of her application on grounds of sex only was contrary to Community equality legislation – the 1976 equal treatment Directive prohibits any discrimination based on sex, although it does allow Member States to exclude those occupational activities for which the sex of the worker constitutes a determining factor. This Directive is also without prejudice to any provisions concerning the protection of women and in particular their protection connected with pregnancy and maternity.
The German court decided to refer the matter to the ECJ, asking it whether the Community Directive precludes the application of national provisions which bar women from military posts involving the use of arms and which allow them access to only the medical and military music services.
The ECJ firstly noted that, although it is for Member States to take decisions regarding the organisation of their armed forces, these decisions do not fall entirely outside the Community principle of equal treatment, as this applies to the public sector and consequently to the armed forces.
The Court noted further that the Directive's exception regarding occupational activities for which the sex of the worker constitutes a determining factor must be interpreted strictly, as it is a derogation from an individual right contained in the Directive. Past ECJ case law has identified these occupations as including prison warders and head prison warders, policing activities performed in situations where there are serious internal disturbances, and service in certain special combat units.
The ECJ stated that any derogation from a fundamental right such as equal treatment of men and women must comply with the principle of proportionality (under which any action must remain within the limits of what is appropriate and necessary to achieve the aim in view). Here, the principle of equal treatment should be reconciled as far as possible with the requirements of public security.
The ECJ found that this German legislative provision, as it applies to almost all military posts in the German army, is not a derogating measure justified by the specific nature or context of the posts in question, and the fact that those in the armed forces may be called upon to use arms is not a justification for excluding women from access to military posts. The ECJ therefore considered that the German authorities have contravened the principle of proportionality by requiring that all armed units in the army are made up of men. The Court also found that the Directive's provisions relating to the protection of women do 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.