C-273/97

* Original language: Italian. 1 — Council Directive 76/207/EEC of 9 February 1976 on the 2. Are the decisions which a Member implementation of the principle of equal treatment for men and women as regards access to employment, vocational State may take in preparation for war training and promotion, and working conditions (OJ 1976 and during peace time with regard to L 39, p. 40). 2 — According to the British Ministry of Defence, 'interoper- the engagement, training and deploy- ability' may be summarised as the ability of an individual to ment of soldiers in marine commando perform more than one task. In the case of amphibious infantry commandos, this means being able to function as units of its armed forces designed for an army operative with a specific qualification (for example, as a chef) and as a full commando soldier (see paragraph 2 close engagement with enemy forces in of the order for reference). the event of war outside the scope of

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the EC Treaty or its subordinate legis- peace time and/or in preparation for lation where such decisions are taken war from service as interoperable mar- for the purpose of ensuring combat ines capable of being justified under effectiveness in such units? Article 2(2) of Council Directive 76/207/EEC?

3. Does Article 224 of the EC Treaty [now Article 297 EC], on its proper 6. If so, what is the test to be applied by a construction, permit Member States to national tribunal when considering exclude from the ambit of Council whether or not the application of the Directive 76/207/EEC discrimination policy is justified?' on grounds of sex in relation to access to employment, vocational training, working conditions, including the con- ditions governing dismissal, in the armed forces during peace time and/or in preparation for war for the purpose of ensuring combat effectiveness ? The relevant provisions of Community law

indirectly'; Article 2(2), which states that branch of the Royal Marines, and Colonel 'This Directive shall be without prejudice Brook, their deputy chief of staff logistics, to the right of Member States to exclude invited those affected by the defence cuts to from its field of application those occupa- apply for transfer to the Royal Marines, tional activities and, where appropriate, the which applications would, however, be training leading thereto, for which, by conditional on the persons concerned pas- reason of their nature or the context in sing an initial selection board and complet- which they are carried out, the sex of the ing a training course. A standard letter to worker constitutes a determining factor'; this effect was sent on 19 July 1994 by Article 3(1), according to which 'Applica- Colonel Brook to Mrs Sirdar, whose name tion of the principle of equal treatment was included on the list of those about to means that there shall be no discrimination be made redundant. Shortly after sending whatsoever on grounds of sex in the that letter, Colonel Brook received infor- conditions, including selection criteria, for mation from 29 Commando Regiment that access to all jobs or posts, whatever the the candidate to whom the offer of transfer sector or branch of activity, and to all levels had been made was in fact a woman. In of the occupational hierarchy'; and Arti- view of the fact that the Royal Marines do cle 9(2), which provides that 'Member not admit women within their ranks (for States shall periodically assess the occupa- reasons which will be explained below), tional activities referred to in Article 2(2) in Colonel Brook informed Mrs Sirdar that order to decide, in the light of social the letter offering transfer had been sent in developments, whether there is justification error and that her application could for for maintaining the exclusions concerned. that reason not be considered. Mrs Sirdar's They shall notify the Commission of the service was terminated on 28 February results of this assessment'. 1995. She thereupon instituted proceedings before the Industrial Tribunal claiming that she had been the victim of unlawful dis- crimination on grounds of sex.

purpose of ensuring the combat effective- 6. According to the Ministry of Defence, ness of the naval, military or air forces of the principle of interoperability is sufficient the Crown'. 3 justification for the Royal Marines' refusal to employ Mrs Sirdar: the presence of women in that corps would, it is claimed, hinder interoperability and, consequently, the combat effectiveness of units. Intero- perability, which informs in every aspect the organisation and activity of the Royal Marines, has been described by Colonel Wilson as a dual ability of the soldiers to whom it applies: first, the ability 'of an The Royal Marines and the principle of individual, regardless of specialisation interoperability [such as being a chef], to carry out a range of tasks within a formation, at short notice'; second, that (which represents the very essence of this concept) 'of an indivi- dual, regardless of specialisation, to be able to fight as an infanteer'. 'In this connec- 5. The select corps of the Royal Marines tion' — Colonel Wilson adds — 'all Royal consists of some 5 900 soldiers, equivalent Marines, officers and men, are trained as to approximately 2% of the United King- commando infanteers'. 5In essence, it is not dom's total armed forces. The Royal Mar- possible to join the Royal Marines solely to ines constitute the landing force component serve as a chef or in any other specialisa- of the United Kingdom's amphibious tion. By virtue of his training (which is forces. According to Colonel Wilson, one identical to that of all Marines), the Royal of their commanding officers, 'the charac- Marines chef is also, and primarily, a teristics of this brigade size landing force commando infanteer. are that it is a flexible, militarily balanced form of amphibious infantry, commando trained, mobile, at high readiness and able to operate in extremes of environment across the spectrum of military opera- tions'. 4In substance, the Royal Marines, a small force, are the point of the arrow head of the United Kingdom's armed forces 7. According to the order for reference, the and have the task of intervening first, principle of interoperability is in fact particularly as commando infanteers.

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corps within them. What the Court is really being asked is whether: (a) employment in the armed forces, either in those forces as a whole or in a special corps, is, by its very nature, outside the scope of the EC Treaty and the rules derived therefrom, or (b) it is Article 224 which allows Member States to exclude such employment — here too, either for those forces as a whole or for specific units or select corps — from the 6 — The reasons why every Royal Marine, irrespective of scope of the Directive specifically intended specialisation, is required to maintain optimum physical condition are set out in a report entitled 'Revised Employ- to guarantee equal treatment for men and ment Policy for Women in the Army — Effect on the Royal women in regard to access to employment. Marines' published on 10 June 1994 (a few weeks before Colonel Brook wrote to Mrs Sirdar inviting her to apply for a transfer): '2(b) Interoperability. In a small corps, in times of crisis and manpower shortage, all Royal Marines must be capable at any time of serving at their rank and skill level in 7 — See paragraph 44 of the order for reference (underlining in a commando unit. Manpower reallocation procedures the original). It should be pointed out that, according to the require up to 1 150 men and officers to be re-deployed submissions of Mrs Sirdar, which have not been challenged from training base, base and headquarters units to com- by the United Kingdom Government, the sole exception at mando units and as battle casualty replacements when the time of recruitment appears to relate to the members of manning to meet major crises. Employment of women in the the military band of the Royal Marines, to which women Royal Marines will not allow for interoperability' (see are admitted and to which the rule of interoperability does paragraph 42 of the order for reference). not therefore apply.

The first and second questions refer to the the Member States have, in accordance problem indicated above under (a), the with the EC Treaty, 'shared' only in certain third and fourth to that under (b). I shall areas other than defence. Defence, there­ therefore examine together, on the ground fore, remains within their exclusive compe­ that they are, as I have stated, connected, tence 8and the present case, which con­ the questions contained in each of the cerns defence, cannot be decided by refer­ groups just described. ence to the case-law in which the Court considered the problem of equal treatment of men and women in relation, not to the armed forces, but to that of the police and internal security, 9 which, those Govern­ ments note, are matters entirely different from the external defence of the State. The French Government goes on to argue that the armed forces fall entirely outside the scope of the EC Treaty by virtue of Arti­ The first and second questions cle 48(4) (now, after amendment, Arti­ cle 39(4) EC), which excludes those employed in the public service from the scope of freedom of movement for workers guaranteed by the Treaty. Mrs Sirdar replies by pointing out that the decision to 9. By its first two questions, the Industrial exclude women from the armed forces in Tribunal is in essence asking the Court order to ensure the latters' combat effec­ whether decisions on the conditions of tiveness cannot be treated as falling outside employment in, including access to, the armed forces or one of their select corps, the ambit of the provisions of the adopted by a Member State for the purpose EC Treaty or the Directive. Such a result, of combat effectiveness, during peace time she argues, is not envisaged by any specific and/or in preparation for war, must be provision therein and cannot be inferred treated as falling outside the scope of the from the Community legal order in general. EC Treaty and of secondary law. As for Article 224, on which the United Kingdom relies in support of the opposite conclusion, Mrs Sirdar submits that this envisages, evidently and exclusively, excep­ tional cases which have no relevance in the present context. The matter which needs to be clarified at the outset is whether the Court's decision in Johnston can constitute 10. The United Kingdom Government, a useful precedent for formulating and which, together with Mrs Sirdar, the resolving correctly the questions in the French and Portuguese Governments and present case. The answer to that question the Commission, has submitted observa­ tions, argues that Article 224 necessarily implies that such decisions fall outside the scope of the EC Treaty. The French and 8 — The French Government, in particular, takes the view that defence should be treated in the same way as the other Portuguese Governments submit that the functions traditionally reserved to States, such as justice, diplomacy, public finances and the police. activities of the armed forces are intimately 9 — Judgment in Case 222/84 Johnston ν Chief Constable of the linked to the concept of sovereignty, which Royal Ulster Constabulary [1986] ECR 1651.

ought, in my view, to be in the affirmative, and internal security of each Member State. for reasons which I shall set out below. I am unable to see why defence-related requirements should be raised to the status of a 'general proviso [inherent in the Treaty]' and thereby constitute a 'privi­ leged' order in relation to the requirements of internal security, which the Court exam­ 11. Johnston concerned the exclusion of ined in Johnston, arriving at the above women from police functions involving the result. That is so on more than one ground. carrying of firearms. That measure had Since its judgment in Costa ν ENEL, in been adopted by the United Kingdom particular, the Court has consistently authorities for the purpose of safeguarding rejected the contention that Member States public order, under serious threat by reason have powers of general derogation inherent of the particular situation in Northern in the system of the Treaty: 'Wherever the Ireland. In that case, the United Kingdom Treaty grants the States the right to act Government, referring to a series of unilaterally, it does this by clear and precise EC Treaty derogations in regard to public provisions (for example Articles 15 safety (Articles 36 (now, after amendment, [repealed by the Treaty of Amsterdam], Article 30 EC), 48, 56 (now, after amend­ 93(3) [now Article 88(3) EC], 223, 224 ment, Article 46 EC), 223 (now, after and 225 [the latter now being Arti­ amendment, Article 296 EC) and 224), cle 298 EC])'. 12 concluded that neither the EC Treaty nor the law derived from it could have applied to the matter under consideration. 10 The Court, however, decisively rejected that argument in the following terms: 'it is not possible to infer from [the specific deroga­ tions in the EC Treaty, which are excep­ tional in nature] that there is inherent in the Treaty a general proviso covering all mea­ sures taken for reasons of public safety. If 13. Next, I would point out that the every provision of Community law were specific derogations relating to external held to be subject to a general proviso, security provided for by the Treaty are regardless of the specific requirements laid exceptional in their nature, in the same way down by the provisions of the Treaty, this as those concerning internal security. Thus, might impair the binding nature of Com­ the derogations provided for under Arti­ munity law and its uniform application'. 11 cles 223 and 224 have a qualified excep­ tional character, in the sense that they are 13 'wholly exceptional' and not simply 'exceptional', as are, in contrast, those provided for under Articles 36, 48(3) and 56(1). 14 In light of their nature, deroga- 12. Such a clear and persuasive statement of the principle espoused by the Court covers, in my opinion, both the external 12 — Judgment in Case 6/64 Costa ν ENEL [1964] ECR 585, in particular p. 594 (emphasis added). 13 —Johnston, paragraph 27. 14 — The observation is from Advocate General Jacobs in his Opinion in the Macedonia case (point 46; order removing 10 — See paragraph 24 of the judgment. from the Register Case C-120/94 Commission ν Greece 11 — See paragraph 26 of the judgment (emphasis added). [1996] ECR I-1513).

15. The United Kingdom, which is here 14. I would add that, as Mrs Sirdar has arguing vigorously that the matter in issue pointed out, where the EC Treaty (see falls outside the scope of the EC Treaty, has on a separate occasion demonstrated that it expressly recognises that not even employ- 15 — Case C-367/89 Richardt and 'Les Accessoires Scientifi- ment in the armed forces falls outside the ques' [1991] ECR I-4621, paragraph 2 2 ; Case C-70/94 Fritz Werner Industrie-Ausrüstungen ν Germany [1995] scope of Community law, in particular the ECR I-3189, paragraph 2 5 ; and Case C-83/94 heifer and Others [1995] ECR I-3231, paragraph 26. Directive. The 1994 note accompanying 16 — Concerning the French Government's argument that the the SDA Regulations, by which section Member States have exclusive competence in relation to 85(4) of the SDA was replaced pursuant to the functions, such as that of police, traditionally reserved to the Member States, I would also point out that, in line section 2(2) of the European Communities with Johnston, the Court, in its judgment in Case 318/86 Commission ν France [1988] ECR 3559, had no hesitation Act 1972, stated that it was necessary to in finding that the Directive applied to the active corps of the national police force (despite the fact that the French amend the previous rule which excluded Government had stressed 'the fundamental requirement to the armed forces entirely from the scope of maintain public order' (paragraph 21) and the need 'not to impair the proper performance of duties which serve that legislation, referring in this connection public safety' (paragraph 22)) and the corps of prison to the need to ensure 'that the 1975 Act officers (an activity involving regular contact with prison­ ers). accords with the obligations arising under

17 — Explanatory Note accompanying the SDA Regulations 16. Next, I turn to the argument put (emphasis added). It seems to me that the very title of those forward by the French Government, to Regulations ('Sex Discrimination Act 1975 (Application to Armed Forces etc) Regulations' is particularly significant. the effect that the subject-matter of the That Explanatory Note also states that 'the wording which questions in this reference falls outside the appeared in [section 85(4), by which the armed forces were excluded from the scope of the Act] is now omitted (so that scope of the EC Treaty by reason of the Act now applies to such service)' (emphasis added). Next, I would point out that in 1991 the British Ministry Article 48(4), which excludes employment of Defence acknowledged before the High Court that the policy which it had followed of discharging pregnant in the public service from the freedom of women from the army was contrary to the Directive, movement for workers. That is not a view thereby acknowledging its relevance in relation to the a r m e d forces (see Written Question E-2447/94 of which I share. As the Court has affirmed, 'it 30 November 1994 put by Robin Teverson to the Com mission, OJ 1995 C 81, p. 33).

New cases of Defence with regard to the deployment of women in combat troop units and as fighter pilots. That derogation of discrimination may not be created by has not been used since 1993, from which date therefore women have been admitted to all sections of the Danish exempting certain groups from the provi armed forces. It also follows from a recent NATO report sions intended to guarantee equal treatment that, by virtue of a new Law adopted on 19 February 1998, it is proposed that, with effect from 1 June 1998, there should no longer be any activities from which women are excluded in the Danish armed forces (see Women in the NATO Forces — Year-In-Review 1998, issued by the 22 — Article 5(2) of the Wet gelijke Behandeling van Mannen en Advisory Office on Women in the NATO Forces, Brussels, Vrouwen (Law on Equal Treatment of Men and Women) 1998, pp. 14-16). reproduces the wording of Article 2(2) of the Directive.

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itself. These include the derogation which features in Article 2(2). 18. To what conclusion do the foregoing remarks lead me in regard to the first and second questions? That of rejecting the contention that employment in the armed forces, even in peace time, is a matter falling entirely and necessarily within national competence, by virtue of a general proviso vested in the Member States and underlying the EC Treaty itself: a matter in respect of which sovereignty is not 'shared' for the purposes of the process of integra

For involving a manager with an educational establishment operated by the local area authority. 27 — The extensive case-law includes Case 149/77 Defrenne ν Sabena [1978] ECR 1365, paragraph 27, Joined Cases 28 — Although the text of Article 3(i) EC differed from its 75/82 and 117/82 Razzouk and Beydoun ν Commission present form when the Directive was adopted, it appears [1984] ECR 1509, paragraph 16, and P. v S., cited above, through time to have retained the substance of the paragraph 19. objective at present pursued by the Community.

present purposes, it is the values of the rule preparation and organisation of the armed of law, as well as those of national sover- forces, even if inspired by the preoccupa- eignty, which have been 'shared' by those tion to ensure combat effectiveness, are who drafted the Directive. This can be made in a situation of normality. The clearly inferred from the Court's judgment United Kingdom and the Commission, 2 9 in Johnston. On the basis of what the Court in contrast, argue that this case does come held in that judgment, it follows that within the derogation provided for by implementation of the principle of equal Article 224. The power to adopt measures treatment for men and women is not derogating from the EC Treaty 'in the event subject to any general proviso in regard to of war' applies, by necessary implication, measures adopted in peace time and/or in also with regard to similar derogating preparation for war which are necessitated decisions, in peace time but in preparation by the need to ensure that the armed forces for war, which still serve the purpose of maintain their combat effectiveness. ensuring combat effectiveness; a fortiori, the United Kingdom notes — with refer- ence to the words of Advocate General Jacobs in the Macedonia case — since 'war is by nature an unpredictable occurrence. The transition from sabre-rattling to armed conflict can be swift and d r a m a t i c ' . 3 0 Mrs Sirdar, on the other hand, denies that The third and fourth questions Article 224 is in any way relevant to the present case, relying in this regard on a dual argument: (a) in Johnston, she submits, the Court qualified the derogation provided for by Article 224 as 'wholly exceptional' and, 19. The problem posed by the third and fourth questions concerns the provisions of as such, not lending itself to an extensive Article 224. The Court is requested to interpretation (in this Mrs Sirdar shares the determine whether, on the basis of Arti- view taken by the Portuguese Govern- cle 224, the policy decisions concerning ment); (b) Advocate General Darmon, in access to the armed forces which are the Johnston, identified in Article 224 'a "safe- subject of the questions just considered may guard clause" of general scope ... [which] none the less be excluded from the ambit of applies only in the absence of special rules the Directive. [such as Article 2(2) of the Directive]'. 3 1

21. I agree with the observations made by existence, of a Member State. 33 The United the applicant in the main proceedings Kingdom itself adopted unilateral measures rather than with those of the intervening under Article 224 in a temporary situation Governments and the Commission. In par of serious crisis which arose in 1982 when ticular, fundamental importance seems to Argentine troops occupied the Falkland me to attach, for the examination which Islands, 34 a British overseas territory. follows, to the Court's findings in Johnston to which Mrs Sirdar refers.

ernment. In my opinion also, Article 224 and . . . do not lend themselves to any wide cannot apply to policy decisions taken by interpretation'. 3 2 Those cases must there the Member States with regard to engage fore, necessarily, be strictly construed, in ment in the armed forces in situations view of their 'qualified exceptional' nature which I might dare to describe as 'normal', and in view of the fact that, unlike the case to distinguish them from those taken in the in which derogations may be made from a 'event of actual war' or of 'serious interna specific aspect of the common market (for tional tension constituting a threat of war'. instance, Article 36 or Article 48(3)), Arti It might be said that peace time is also cle 224 authorises derogations from the system of the common market in general. Having defined the criterion for the proper 33 — According to J. Verhoeven, bearing in mind the text and interpretation of the rule, I would point out spirit of Articles 223 and 224, it seems reasonable to take the view that Article 223 refers to the general measures that the cases envisaged by Article 224 which a State adopts in 'normal' times for the purpose of safeguarding its own security, whereas Article 224 refers to concern temporary and non-permanent the special measures which prove necessary in an actual situations, but which are at the same time crisis situation which has already developed (see Com mentaire du Traité instituant la CEE, edited by V. Con- crisis situations, in the full and true sense, s t a n t i n e s c o , J.-P. J a c q u é , R. Kovar a n d D. Simon, Economica, Paris 1992, entry dealing with Article 224, the occurrence of which represents a grave point 2). According to P.J.G_ Kapteyn and P. VerLoren van Themaat, the measures which Member States can adopt on danger for vital interests, if not the very the basis of Article 224 go far beyond those which can be adopted pursuant to Article 36, precisely in view of the special circumstances envisaged by Article 224 (see Intro- duction to the Law of the European Communities, Kluwer and Graham & Trotman, Deventer-London, 2nd edition, 1990, p. 406).

. . following authorising exceptions, which should be interpreted the measures already taken by the United Kingdom, the strictly, and which cannot be invoked to deny the existence Member States have consulted one another pursuant to of rights created by other provisions of the Treaty' (part IV Article 224 of the [EC] Treaty establishing the European of the Opinion, p. 470). Economic Community'.

subject to the danger of disturbances. That question to be met'. 37 The fifth and sixth is true: the preparation for war cannot, in questions turn precisely on such a Commu- practice, tolerate interruptions; after all, nity provision. The sagacious observation the Court has itself acknowledged that 'it is of Advocate General Darmon is thus also becoming increasingly less possible to look of practical significance for the purposes of at the security of a State in isolation, since it the present case. Before passing on to those is closely linked to the security of the other questions, however, I would like to international community at large, and of its complete the analysis of the problem here various components'. 35Specifically on this under consideration by addressing another point, however, I would consider as unlaw- argument put forward by the French Gov- ful, under the EC Treaty, the conduct of a ernment. Member State which adopts unilateral measures while sheltering behind Arti- cle 224, simply with a view to and in preparation for potential conflict.

not all. The risk, of which the Court the scope of the Directive, the French expressed its apprehension in Johnston, Government also employs certain remarks that the binding force of Community law made by Advocate General Jacobs in the and its uniform application might be Macedonia case concerning the construction impaired would thereby be realised. 36 of Article 224 and of other principles enun- ciated by the European Court of Human Rights (hereinafter 'the ECHR') in interpret- ing Article 15 of the European Convention

As can be seen, this provision is very similar in its wording to Article 224: both introduce a derogation from a general system (the protection of human rights and the common market respectively), but only in 35 — Werner, cited above, paragraph 26, and Leifer, cited situations which are wholly exceptional and of such above, paragraph 27. gravity as not to allow of any solution other than 36 — See paragraph 26 of the judgment in Johnston. derogations of that kind.

jurisprudential principles 3 9 have been preted by the ECHR: a 'case of serious invoked in the present case by France in crisis', 40 'a situation verging on a total presenting its argument that, in regard to a collapse of [external] security',41 '[a situa­ measure adopted unilaterally by a Member tion] threatening the life of the nation', 4 2 or State in defence of its own vital interests, 'a danger for the life of the nation'. 4 3 If I judicial review is destined to be appreciably have properly understood, France takes the eclipsed, if not to disappear entirely as an position that, in order to justify its view effective means of controlling the measures outlined above, it suffices that there should and conduct which ought to be the subject of be a simple instrumental connection between judicial assessment. The State concerned is the mandatory interests for the safeguarding alone in a position fully to determine whether of which each Member State is responsible, there is a threat to its own security and to each within its own sphere, within the decide on the extent and nature of the meaning of Article 224 and the measures adopted, even in peace time, for the purpose measures to counter such a threat. So far as of safeguarding those interests. What can one is relevant, this will have the following say of the reasoning thus put before the consequence: the measures by which a Court for its consideration? I am certainly Member State organises its armed forces, aware of the caution evident from the words recruiting them and preparing them to carry of Advocate General Jacobs in the Macedo­ out their duties, cannot be fettered by nia case: they constitute a call to exercise the conditions affecting the vital basis of sover­ care which should inform any court having eignty and compliance with which may only the task of assessing the legality of measures with difficulty be subjected to judicial review. by which a Member State seeks to safeguard The conditions for the application of Arti­ its own interests in cases, or for cases, of cle 224 are clearly identified not only in the extreme danger. However, I do not feel that I wording of that provision, but also through should, on those grounds, go along with the various clarifications in the relevant case-law, view taken by the French Government, to which may be added the similar provisions which leaves me perplexed for the following of Article 15 of the Convention, as inter­ reasons.

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submitted to it. It is, before all else, Commission's arguments were 'sufficiently necessary to establish that the matter pertinent and serious', the Court held that governed by the measures to be examined it had to 'ascertain whether ... the essential falls outside the rules of Community law, requirements for the application of Arti- whether primary or secondary. Only then, cle 224 [of the EC Treaty] are not met in and in no other case, will those measures be this case ... [even though this would make exempt from the judicial review which — it] necessary to consider complex legal in a Community such as the European questions'. 45 On another occasion, in Lei- Community, based as it is on the rule of fer, the Court recognised the courts of the law — follows inevitably from the obliga- Member State concerned as having juris- tion resting on Member States to comply diction to review measures adopted (during with the rules laid down by or deriving a period of relative peace) 46 in order to from the EC Treaty. Here, however, for the safeguard national security, ruling that: '[in reasons which I have already stated and regard to the judicial review of quantitative others that I shall explain in what follows, restrictions on the exportation of goods the measures at issue in the main proceed- capable of being used for military purposes] ings come within an area which, since it is it is for the national court to decide [on the covered by provisions of Community law, basis of the facts] which it is called on to does not fall outside the domain within appraise [whether grounds of public secur- which the EC Treaty produces its effects, ity really exist]1.47 and also cannot be excluded from that domain by way of interpretation.

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48 — See paragraph 18 of the judgment; Advocate General Darmon also affirmed that 'the demands of public order may not justify the abandonment of judicial review' (point 5 of the Opinion). To the same effect, albeit in a different factual context, see Case 14/83 Vow Cohort and Kamann ν Land Nordrhein-Westfalen [1984] ECR 1891, 30. In its fifth question, the Industrial paragraph 18. Tribunal is asking the Court, in the further

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alternative, whether a Member State's pol­ cient to justify application of the deroga­ icy of excluding all women during peace tion provided for under the Directive. 49 In time and/or in preparation for war from Johnston, the Court reached the same service in an interoperable corps such as the conclusion on the basis of a context closely Royal Marines is capable of being justified resembling that of the present case and under Article 2(2) of the Directive. This which featured very similar national provi­ question is designed precisely to ascertain sions. 5 0 These corresponded sufficiently whether sex constitutes a determinant con­ closely to section 85(4) of the SDA, dition for access to employment in a corps having the characteristics described in the order for reference.

32. As for the nature of the activities of is quite similar to the SDA as regards its content and military personnel serving in the Royal objectives, provides that none of its provisions prohibiting discrimination 'shall render unlawful an act done for the Marines, all of the intervening Govern purpose of safeguarding national security or of protecting public safety or public order' (see paragraph 3 of the ments and the Commission have empha Johnston judgment). sised the special characteristics of a corps Rejecting the argument that the nature of the occupational activity in the police force could justify discrimination on designed to cope with extreme combat grounds of sex (paragraph 34 of the judgment), the Court implicitly rejected the United Kingdom Government's conditions, stressing the intense and con contention that the difference in physical strength between tinuous nature of the strenuous training, the sexes was one of the criteria to be taken into consideration with regard to police units in Northern and the physical pressures to which com Ireland (paragraph 31 of the judgment). Still in Johnston, Advocate General Darmon stated that 'it mando infanteers are subject, particularly does not appear that a national authority may bar women in combat operations. Those considerations from access to employment as armed police officers because it adopts Hamlet's rebuke: "Frailty, thy name is do not, by themselves, strike me as suffi woman"' (point 8 of the Opinion).

and — I should point out — like the rules that this rule is applied without exception governing the police force in Northern at the time here relevant, namely that at Ireland, the SDA applies (within the which the soldier is engaged in or transfer- domain of the 'armed forces') to men and red to the Royal Marines. 53 The Royal women without distinction. I accordingly Marines are trained in such a way as to be take the view that I can borrow for the able to operate at very short notice in any present case, mutatis mutandis, the formula circumstances or any environment: they which the Court adopted in Johnston: constitute the point of the arrow head of given that the SDA expressly applies to the armed forces, as the United Kingdom posts in the armed forces, and since no puts it. The Ministry of Defence has sought distinction is drawn in that regard between to avert even the merest possibility that the men and women, the nature of the occupa- inclusion of women in this essential com- tional activity in the armed forces is not a ponent of the defence system might affect relevant ground of justification for the its combat effectiveness.

In order Marines operate, sex constitutes a legiti- to determine what, for the purposes of the mate distinguishing factor for the purpose Directive, are the conditions governing the of the present question. According to the exercise of the activities entrusted to the order for reference, the Ministry of Defence Royal Marines, there is, I would say, no policy of excluding women from the Royal other reference criterion than that offered Marines is dictated exclusively by the to the Court by the data, opinions and interest in ensuring the combat effective- testimony submitted on this point by the ness of those soldiers, whose training and national authorities responsible for the organisation, the United Kingdom Govern- conduct and organisation of that armed ment points out, are directed to that end corps. I have recalled those elements of the and do not depart in any case from the rule case which emerge from the clear and of interoperability. 52 The case-file in the detailed exposé of the order for reference main proceedings provides sound evidence and the conclusions drawn by the United

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The Court in that case upheld the submissions of the United King- apart from the latters' (as yet untested) dom Government, which did not differ in physical suitability for difficult offensive any essential respects from those put for- operations involving hand-to-hand combat ward in the present case. In Johnston, the for which the Marines are trained. I would United Kingdom had submitted that, in leave these and similar appraisals to the excluding women from those police units in national authorities which have made the Northern Ireland, account had been taken choice — which, in a democracy, must of the foreseeable risks which deployment always be based on reasoned and respon- of armed policewomen would have sible decisions — to maintain the tradi- entailed.

I must, however, point of exposing combatants to greater risks and 56 — 'Serious internal disturbances', in the Court's words; see paragraph 36 of the judgment. 55 — heifer, cited above, paragraph 35. 57 — See paragraph 36 of the judgment; emphasis added.

36. Next, I do not accept that the 'specifi­ city' of the Royal Marines' case is gainsaid by the rule that all military personnel 35. It is also worth considering a final serving with that corps are subject to aspect of this question indicated by the interoperability. That rule is applied con­ Commission and the French Government. sistently, accommodates the raison d'être of In order for the derogation to be considered a corps structured along those lines and, as applicable, it is necessary that the occupa­ the Industrial Tribunal making the refer- tional activity for which sex constitutes a ence states, is a 'fact' and not a 'fiction'. determinant condition, and which can for This case differs from that considered by that reason be excluded from the scope of the Court in Commission ν France. In that the Directive, should be specific. There can earlier case, France had adopted a system be no doubt that such a requirement is for recruitment to five corps of the national prescribed by the Directive. The Court police force 6 0which limited the opportu­ stated as much in Commission ν France: nities of access for women, who were 'It follows [from Articles 2(2) and 9(2) of considered unsuitable for police duties the Directive] that the exceptions provided involving the use of force. According to for in Article 2(2) may relate only to the French legislation, all police officers specific activities'. 5 9Well, the activity of must be interchangeable and able to per­ the Royal Marines is specific for the form such duties. 6 1The Court upheld the purposes of Article 2(2). To phrase it better, Commission's application, ruling that the there is a specificity in the function con­ French legislation was too general and did ferred on the Royal Marines as compared not make it possible 'to verify whether the with that of the rest of the armed forces. percentages fixed for the recruitment of What we find is a specific function which each sex actually correspond to specific has the result that the individual operations activities for which the sex of the persons to constituted by the Royal Marines' training be employed constitutes a determining and offensive interventions must be treated

factor within the meaning of Article 2(2) of cle 48(4) which restricted its validity to the Directive'. 62 The principle of 'inter- 'certain activities in the public service'. 6 4 changeability' invoked by France in that case may, in my opinion, be treated in the same way as that of 'interoperability' with which the Court is concerned in the present case. There were doubts, in Commission ν 38. Finally, the conditions under which the France, as to whether the rule of inter- Royal Marines are required to operate changeability was necessary and was actu­ point to the conclusion that the male-sex ally applied within all of the police corps requirement for joining the corps is to be concerned. In contrast, there can be no understood, for the purposes of the Direc­ doubt that interoperability is necessary and tive, as determinant for the performance of is actually applied in the present case. Once the activities, that is to say the military that doubt has been dispelled, it becomes functions, carried out by such units of the clear that interoperability, as applied within armed forces. the corps of the Royal Marines, offers us additional confirmation enabling us to treat the case in which the derogation permitted under the Directive can be applied as sufficiently specific and unambiguous in its definition.

The sixth question

particularly rigorous test, given that a jurisdiction provided for in Article 177 of derogation is being applied here) whether the EEC Treaty [now Article 234 EC], it is the blanket exclusion of women from the for the national court . . . to ensure that the Royal Marines is proportionate to the principle of proportionality is observed and objective of ensuring maximum combat to determine whether the refusal to renew effectiveness. While the United Kingdom Mrs Johnston's contract could not be avoi- Government accepts that the tribunal can ded by allocating to women duties which, review the decision to exclude women from without jeopardising the aims pursued, can a specific corps, it argues that, given the be performed without fire-arms'. 6 6Thus, nature of the interests safeguarded in Johnston, the Court did not make the (national defence), the tribunal can take national tribunal's power of review subject issue with that decision only if it is to the limitation invoked by the United manifestly unreasonable. 65 Kingdom Government. And this 'in a situation characterised by serious internal disturbances', experiencing numerous ter- rorist attacks with hundreds of victims.

That principle requires that dero- gations remain within the limits of what is 42. The policy of the Royal Marines appropriate and necessary for achieving the excludes women entirely from all employ- aim in view and requires the principle of ment within their corps. Bearing in mind equal treatment to be reconciled as far as the fact that the question concerns a possible with the requirements of public fundamental human right, the task for the safety which constitute the decisive factor national tribunal is to determine in this as regards the context of the activity in specific case whether the 'absolute nature'

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SIRDAR

A different logical argument might perhaps proceed from an analysis of the reasons why the Royal Marines band is not subject to the principle of interoperability, before then 43. Next, it is necessary to consider care going on to determine whether any of those fully the significance of the exception to the reasons might also be valid for posts such rule of interoperability concerning mem as, for example, that of chef at headquar bers of the regimental band. This is the only ters or training base. In addition, counsel exception. One might ask why there are not for Mrs Sirdar pointed out during the others, for instance in relation to the 'static' hearing that 'some chefs in the British activities at headquarters, base or corps Navy do not form part of the system of training base. However, it is easy to see that interoperability'. such a question raises the issue of organisa tional autonomy enjoyed by the Member States and their military authorities.

women might be allocated duties which, determine whether the policy in question is proportionate, the Commission argues, account should also be taken of the results 68 — 'Although it is for the national court, in preliminary-ruling of the periodic assessment which the United proceedings, to establish whether such a necessity exists in the specific case before it, the Court of Justice, which is Kingdom claims regularly to carry out called upon to provide the national court with worthwhile answers, has jurisdiction to give guidance based on the documents before the national court .

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OPINION OF MR LA PERGOLA — CASE C-273/97

forecasts. Although there are some indica- occupational activities, thereby providing tions in the case-file which point to a justification for a gradual opening to periodic re-examination of these evalua- women of activities still restricted to men. tions, the results do not appear to indicate The starting point referred to derives from any major changes in regard to the corps to the finding that the essence of the United which Mrs Sirdar wishes to be transfer- Kingdom Government's argument seeking red. 71 to justify the exclusion of women from the Royal Marines on grounds of combat effectiveness lies in the apprehension that the participation of women could have an adverse effect 'on the morale and cohesion'

The conclusions the military penal code), I take the view that, in accordance with the obligations imposed by the Directive, and in order to 72 — Third recital in the preamble to the Directive (emphasis added). 73 — See the passage taken from a 1997 military report quoted 71 — See point 2(b) of the report entitled 'Revised Employment in the United Kingdom's written observations (see footnote Policy for Women in the Army — Effect on the Royal 52 above). Marines' cited in footnote 6 above; see also the conclu- 74 — See Annex 4 to those observations, 'Further and Better sions of a similar report dating from 1997 and cited in Particulars of the Amended Grounds of Resistance', footnote 52 above. point l(ii).

47. In conclusion, I have indicated those 75 — See the judgment of the Canadian Human Rights Tribunal ('the CHRT') of 20 February 1989, T.D. 3/89 Gauthier factors from which the national tribunal and Others ν Canadian Armed Forces, Annex 5 to the might derive some assistance in determin­ written observations of Mrs Sirdar, point 6 of the judg­ ment, in particular at p. 26; the trials carried out by the ing, when carrying out the review which Canadian armed forces are known under the acronym 'Swinter' (Service Women in Non-Traditional Environ­ lies within its power and according to the ments and Roles). principle of proportionality, whether the 76 — See the third recital in the preamble to the Directive. The Court has also ruled along these lines: '[Article 119 exclusion of women from the Royal Mar­ (Articles 117 to 120 of the Treaty have been replaced by ines, which, as I have concluded above, is Articles 136 EC to 143 EC), which imposes an obligation to ensure that men and women receive equal pay] forms justifiable in principle, is in fact justified in part of the social objectives of the Community, which is not merely an economic union, but is at the same time the particular circumstances of this case. intended, by common action, to ensure social progress and seek the constant improvement of the living and working conditions of their peoples, as is emphasised by the Preamble to the Treaty' (judgment in Case 43/75 Defrenne ν Sabena [1976] ECR 455, paragraph 10; emphasis 77 — See Gauthier ν CAF, CHRT, part 8 of the judgment. added). 78 — See Gauthier ν CAF, CHRT, part 10(d) of the judgment.

(3) The policy adopted by a Member State of excluding women, during peace time and/or in preparation for war, from service in a corps such as that described in the order for reference comes within the scope of the derogation provided for under Article 2(2) of Council Directive 76/207/EEC. I - 7430

SIRDAR

(4) In considering whether the grounds on which the Member State has based itself in applying that policy justify application of Article 2(2) of Council Directive 76/207/EEC, it is for the national court or tribunal to determine whether the measure in question complies with the principle of proportion- ality.

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