C-285/98

I - 71

OPINION OF MR LA PERGOLA — CASE C-285/98

nation whatsoever on grounds of sex either Under Article 9(2) of the Directive: 'Mem- directly or indirectly by reference in parti- ber States shall periodically assess the cular to marital or family status. occupational activities referred to in Arti- cle 2(2) in order to decide, in the light of social developments, whether there is jus- tification for maintaining the exclusions concerned. They shall notify the Commis- sion of the results of this assessment.' 2. This Directive shall be without prejudice to the right of Member States to exclude from its field of application those occupa- tional 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. III — The relevant national legislation

3. Under Paragraph 1(2) of the Soldatenge- 3. This Directive shall be without prejudice setz (Law on Soldiers, hereinafter the 'the to provisions concerning the protection of SG'): 'any person who voluntarily under- women, particularly as regards pregnancy takes to perform military service for life and maternity. may be appointed to serve as a professional soldier. Any person who voluntarily under- takes to perform military service for a limited period may be appointed to serve as a soldier for a fixed term. Women may also be appointed to serve in the armed ...'. forces, in accordance with the first and second sentences above, in posts in the medical and military-music services.' 2

only in the medical and military-music health and medical system or in the sta- services.' 3 tionary military hospital organisation can- not 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 4. The Federal Republic of Germany and render service involving the use of arms.'' 5 the European Commission (hereinafter the 'Commission') which, like Mrs Kreil and the United Kingdom and Italian Govern- ments, have submitted observations in these proceedings, have pointed out that the legal basis for the abovementioned provisions — which form the subject-mat- ter of this reference for a preliminary ruling — is Article 12a of the Grundgesetz für die Bundesrepublik Deutschland (Basic Law for the Federal Republic of Germany The German Government has also pointed or the German Constitution, hereinafter out that the last sentence of Article 12a(4) 'the Constitution' or 'GG'), according to of the Constitution (hereinafter 'Arti- which: cle 12a GG') is simply the 1968 updated version of the analogous 1956 provision, that is to say Article 12(3) GG, and that 'the new wording reflects purely linguistic changes.' '(1) 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.

6 — The German Constitution guarantees equal treatment for Kommentar, edited by M . Sachs, 1999, 2nd edition, para- men and women, in general (Articles 3(2) and (3) GG) and graph 3 et seq.; U. Repkewitz, Kein freiwilliger Waffen- in relation to access to or, rather, the freedom to choose an dienst für Frauen?, NJW 1997, p. 506; M .

Some commentators also point out that a restrictive interpretation is justified on the ground that Article 12a Although the majority of German legal writers endorse that GG does not guarantee a fundamental right (Grundrecht), judgment, it should be pointed out that as a result of a in contrast to the rights that it restricts (see Articles 3(2) and debate currently under way in Germany it is not clear that (3), 12(1) 33(2) GG; see M . Zuleeg, op. cit., p. 1023.

I-74

KREIL

centre and, when she lodged an objection, flagrant violation of the prohibition, laid by its head staff office, on the ground that down in Article 3 of the Directive, on any under national law women are barred from discrimination whatsoever on grounds of all duties involving the use of arms. Con- sex for access to all occupations or posts. 8 sidering this to be unlawful discrimination Ms Kreil points out that the point at issue on grounds of sex, Mrs Kreil challenged in this case is not compulsory military that decision before the national court. service but the professional choice of women wishing to engage in voluntary military service.

V — Legal analysis

(1) The alleged discrimination and the basis for it 10. The Federal Republic of Germany considers the national legislation in issue to be justified on the basis of Article 2(2) and (3) of the Directive, which provide for exceptions to an individual's right to equal treatment. The Commission (whose view is broadly shared by the British and Italian 8. The Verwaltungsgericht Hannover is Governments) considers that, on the basis asking the Court whether the Directive of Article 2(2) alone, the national legisla- precludes a more or less absolute bar on tion in issue is in essence justifiable, it being voluntary service for women in a Member understood, of course, that its validity must State's armed forces. be assessed in regard to all posts in the

armed forces and in the light of the 11. None of the interveners in this case principle of proportionality. 9 disputes the fact that the provisions in issue have the effect of excluding women from the majority of posts in the Bundeswehr, and thereby give rise to discrimination on grounds of sex within the meaning of Article 2(1) and Article 3(1) of the Direc- tive; this involves direct discrimination — although it does lead to other forms of indirect discrimination, given that the armed forces largely consist of men. 10 In some instances, soldiers discharged from 9 — As far as the Commission is concerned, it is clear that employment in the armed forces does not fall outside the the army are given priority access to posts scope of the Directive: it cites the judgment in Case 248/83 Commission v Germany [1985] ECR 1459, paragraph 16, in which the Court ruled that the Directive also applies to employment in the public service.

In other proceedings before the Court of Justice, the United Kingdom Government, however, based its argument that the particu- lar discriminatory provisions in issue were not covered by the Directive on quite different reasons. According to the explanations given by the United Kingdom Government, the provisions had been adopted on grounds of public safety (to prevent an increase in attacks on the police in circumstances of serious internal conflict, see Case 222/84 Johnston [1986] ECR 1 6 5 1 , paragraph 35), and defence and external security (ensuring the combat effectiveness of an élite unit of the armed forces; see point 4 of my Opinion in Sirdar); these, clearly, were reasons linked to areas that fall within the exclusive responsibility of the Member States.

Consequently, a provision based solely on the protection of women cannot, a fortiori, fall outside the scope of the 10 — Under the Directive, 'there shall be no discrimination Directive, on the basis of either Article 224 of the EC Treaty whatsoever on grounds of sex either directly or indirectly' relating to 'quite exceptional' measures needed to guarantee (see Article 2(1)), except where this may be justified on the (internal or external) security or, to put it another way, a basis of one of the derogations laid down in the Directive country's very survival (see point 24 of the Opinion in itself. For specific examples of the application of the Sirdar), or on the basis of considerations linked to Member Directive to cases of indirect discrimination, see Gerster States' autonomy in relation to the organisation of their (cited in footnote 8 above), paragraphs 29 to 34, and Case own armed forces, designed to ensure that they operate as C-100/95 Kording [1997] ECR I-5289, in particular effectively as possible. paragraph 13 et seq.

I-76

KREIL

in the public service, 1 1and the possibility provided for in Article 2(2) and (3) of the cannot be ruled out that they will find it Directive. 13 Before I embark upon that easier to obtain employment in civilian life analysis, it is, however, necessary to recall because of the technical and vocational the reasons for the exclusion under Arti- training they are able to acquire while cle 12a GG, which is the legal basis of the performing military service. 12 In order to provisions regarding which the national answer the question referred by the Ver- court is seeking clarification. waltungsgericht, which concerns only direct discrimination, it is necessary to ascertain whether the measures adopted may be covered by one of the exceptions

Bundeskan- in this case is based on a moral obligation zler (Federal Chancellor), Bundesminister der Verteidigung stemming from Germany's tragic past. The (Federal Minister of Defence) and Staatssekretär (State Secretary). As interpreted by some authors, those posts German Government also refers to the actually include the supreme command of the armed recent decision in the Sanitätsdienst case forces, in other words a post which, like any command (see Paragraph 1 (4) SG, regarding the concept of 'Vorgesetzter' (see footnote 6), in which the Bundesver- or 'Wacnvorgesetzter', that is to say, commander) involves the use of arms (Waffendienst or Dienst mit der Waffe; see waltungsgericht ruled that this moral obli- A. Poretschkin, Verfassunugsverbot für einen weiblichen gation requires protection for women Verteidigungsminister?, NZWehrR, 1993 p. 232; U. Repkewitz, op. cit., p. 507; D. Walz, Der 'geschlechts- which should be as comprehensive as neutrale' Bundesminister der Verteidigung, NZWehrR

Chancellor. In that connection, it is hardly necessary to point out that, pursuant to Article 3(1) of the Directive, tional humanitarian law. 14 International any discrimination on grounds of sex is prohibited, as regards the conditions of access 'to all levels of the occupational hierarchy'. 12 — This does not appear to apply to Ms Kreil who already 13 — The exception provided for in Article 2(4) of the Directive held a diploma at the time she applied to enlist. However, is not relevant; it actually reads: 'This Directive shall be this does not seem to me to amount to negligible without prejudice to measures to promote equal opportu- discrimination: modern armed forces use increasingly nity for men and women, in particular by removing sophisticated technical equipment requiring specific existing inequalities which affect women's opportunities in know-how that is certainly valuable on the civilian labour the areas referred to in Article 1(1).' market which is now more competitive than ever (take, for 14 — Also known as the 'law of human rights in armed conflict'; instance, military pilots who, because of their experience, see N. Rodley, The Treatment of Prisoners under Interna- have no difficulty in finding jobs with civilian airlines on tional Law, Unesco-Clarendon Press, Paris-Oxford, 1987, leaving the armed forces). p. 3.

humanitarian law includes the Third Gen- members assigned to medical units as eva Convention of 12 August 1949 relative nursing or auxiliary nursing staff (musi- to the Treatment of Prisoners of War 15 cians belonging to military bands are given (hereinafter 'the Convention') and Protocol the requisite training during peacetime). I Additional to the Geneva Conventions of 12 August 1949, and relating to the Pro- tection of Victims of International Armed Conflicts 16 (hereinafter 'the Protocol'). According to the Bundesverwaltungsger- icht — and the German Government, which fully subscribes to that court's inter- pretation in the Sanitätsdienst decision — the discriminatory provisions were prompted by Article 51 of the Protocol, under which only the civilian population (2) Derogations from the principle of equal enjoys general humanitarian protection treatment: Article 2(3) of the Directive from dangers arising from military opera-

units. As far as the military-music services of women in armed units of the British are concerned, the German Government police force in Northern Ireland in the has explained that, in the event of hostili- 1980s, that is to say, in circumstances of ties, those services are disbanded and their full-scale civil war. In its judgment in Johnston, the Court ruled: 'it is clear from the express reference to pregnancy and maternity that the Directive is intended to 15 — BGBl 1954, II, p. 838. In addition to the Third Geneva Convention, there are the First Geneva Convention of protect a woman's biological condition and 12 August 1949 for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (BGBl the special relationship which exists 1954 II, p. 783) and the Second Geneva Convention of between a woman and her child.

that public opinion demands that women 16 — B G B l 1990, II, p . 1550. 17 — See Articles 48 and 51(2) of the Protocol. be given greater protection than men 18 — See Article 4 of the Convention and Article 44(1) of the against risks which affect men and women Protocol. in the same way and which are distinct 19 — See Article 33 of the Convention and Article 12(1) of the Protocol respectively. from women's specific needs of protection,

20 — Cited in footnote 9 above, paragraph 44; my emphasis. Johnston forms part of the series of settled decisions in which the Court of Justice has ruled that Article 2(3} of the Directive is geared solely to the protection of a woman's biological condition during and after pregnancy and the special relationship between a woman and her child: see Case 184/83 Hofmann [1984] P.CR 3047, paragraphs 25 and 26; Case 312/86 Commission v Prance [1988] LCR 14. Furthermore, the German Government 6315, paragraph 13; Case C-345/89 Stoeckel (1991] ECU maintains that the objective pursued by the I-4047, paragraph 13; Case C-13/93 Mimic [1994] ECR I-371, paragraph 11; Case C-421/92 Habermann-Helter- authors of the Constitution in 1956 and mann [1994] LCR I-1657, paragraph 2 1 ; Case C-32/93 Webb [1994] ECR I-3567, paragraph 20; Case C-136/95 1968 is not incompatible with Article 2(2) Thibault [19981 ECR I-2011, paragraph 25; and Case of the Directive — the construction placed C-66/96 Dansk Handel [1998] ECR I-7327, paragraph 54. The following extract from Hofmann sheds particular light on that provision by the Court of Justice on the Court's approach: (Article 2(3) of the Directive being of more particular interest to the seeks) 'first... to ensure the protection of a woman's biological condition during pregnancy and thereafter until such time as her physiological and mental functions have returned to norma] after childbirth; secondly... to protect the special relationship between a woman and her child 22 — Opinion of Advocate Darmon in Hofmann (third subpar- over the period that follows pregnancy and childbirth by agraph of point 10; my emphasis); see, to the same effect, preventing that relationship being disturbed by the multi- the Opinion of Advocate General Tesauro in Habermann- ple burdens that would result from the simultaneous Beltermann (point 11 ). pursuit of employment' (paragraph 25). Then, 'in Johnston, 23 — See the observations of the United Kingdom in Johnston in Advocate General Darmon expressed the view that 'if relation to the fourth question referred (p. 1672) and of indeed Article 2(3) may be invoked to reduce the rights of France m Commission v France (Case 312/86 [1988] ECR women, there can be no question of taking into considera- 6322) concerning a series of special laws adopted for the tion, on the basis of that provision, a need for protec- protection of women. According to Advocate General Sir tion — no matter bow well founded — whose origin is Gordon Slynn, 'although the word "particularly" in socio-cultural or even political' (point 8). Article 2(3) indicates that situations other than pregnancy 21 — See Johnston, paragraph 45; sec also, to the same effect. and maternity may fall within its scope, those words Case 312/86 Commission v France, paragraph 14, and colour the scope of the exceptions' (Opinion in Case Stoeckel (cited in footnote 20 above), paragraph 15. 312/86 Commission v France [1988] ECU 6327).

referring court. In point of fact, according tenance of weapons systems to be able to be to the German authorities, Article 12a GG sent to the front line to ensure that the and the abovementioned provisions of the Bundeswehr is an effective fighting force. SG and the SLV perceive gender as a According to the German authorities, that determining factor for the performance of is a sign of the times: in their view, it must armed military service. The protection of be possible in a crisis to deploy troops with women could therefore be guaranteed only advanced technical equipment 'interoper- by barring them completely from all activ- ably', without differentiating between front ities pertaining to the legal status of 'com- line and non-front line duties. batant' within the meaning of international humanitarian law. The Commission and the Italian Government make a distinction here. While accepting that there can in principle be no objection to this kind of basic defence policy decision by a Member State, they distinguish between those posts that involve a specific risk 24 and technical activities which may be carried out behind the lines, do not involve specific risks and do not demand special physical strength. According to the Commission and the 15. Under Article 2(2) of the Directive, sex Italian Government, such activities do not may constitute a determining factor for fall within the category of activities the specific occupational activities, provided nature of which or the context in which that 'their nature' or the 'context in which they are carried out, within the meaning of they are carried out' is taken into account. Article 2(2) of the Directive, require them Those conditions serve to define the scope to be reserved for men rather than women. of the reservation under Article 2(2), as It would then be for the national court to well as to distinguish it in conceptual terms assess whether the post for which Ms Kreil from the derogation provided for under wished voluntarily to enlist falls within one Article 2(3). or other of these categories of activity. This qualified acceptance on the part of the Commission and Italian Government of the reasons for the discrimination in issue here is not shared by the German Government, which considers that the prohibition under Article 12a GG has to be construed as absolute in so far as, if a state of defence is declared, all members of the armed forces may be required to take an active part in military operations. It is also necessary for soldiers responsible for the electronic main- 16. To my mind, the scope of the reserva- tion must be determined by reference to the actual professional qualifications that make sex a determining factor for a given activ- 24 — The Commission cites Johnston, concerning a post in the armed forces of the British police force stationed in ity; examples of this would be the activities Northern Ireland during the 1980s, and Sirdar, concerning recruitment to the élite Royal Marines unit, the jewel in the of male and female singers, actors and crown of the United Kingdom's crack combat forces. actresses, male and female dancers and

28 — Lor instance, the members of submarine crews and marines in the Netherlands, the Royal Marines in the United Kingdom and, until 1993, fighter pilots in Denmark. 29 — The only country other than the Federal Republic of Germany that has yet to admit women into its armed services is Italy. In Italy, however, the absence of voluntary military service for women is the result not of a prohibition (either under the constitution or in ordinary law) but of the legislature's failure to act. In fact — and in contrast to what happened when the police force was demilitarised in 25 — Sec Case 248/83 Commission v Germany [1985] LCR 1981 — the special rules designed to implement the 1459, paragraph 34, in which the Court mentions a principle of equal treatment enshrined in the constitution number of occupations which, on the basis of practice or have yet to he adopted. The Italian Chamber of Deputies legislation, are more generally covered by derogations approved a draft law for the establishment of voluntary from the principle of equal treatment i n the Member military service for women on 29 September 1999 (Atto States. Camera N o 2970-11). Save where otherwise provided, that law will result in women being generally admitted to all 26 — See V. T. Hervcy, Justifications for the Sex Discrimination units. According to the statement made by the Italian in Employment, Butterworths, London, 1993, section Government's representative during tile hearing before the 4.2.1.3. Court, there will be exceptions in specific cases in which 27 — See Case 318/86 Commission v france [1988] LCR 3559, the conditions or nature of the duties assigned to soldiers paragraph 28; my emphasis. See also, to the same effect. are such that the deployment of women would he highly Case 165/82 Commission v United Kingdom [1983] LCR inadvisable (it seems to me that there is a certain analogy 3431, paragraphs 18 and 20, and Johnston (cited m here with the case of the Royal Marines recently con- footnote 9 above), paragraph 38. sidered in Sirdar).

provisions of Article 2(2) and 2(3) of the causing harm to local people. 32 In Case Directive in order to arrive at a more 318/86 Commission v France, the Court precise definition of the actual scope of the held that it was justified, within the mean- reservation provided for in Article 2(2). As ing of Article 2(2), to recruit male and has been pointed out in legal literature, 30 female staff separately, for both the post of Article 2(2) concerns the impact which sex prison warder, which involves regular con- has on persons other than the female (or male) worker', in the exercise of a particular employment activity, whereas — as we have seen — Article 2(3) is concerned with the impact of a particular employment activity on the female worker herself. The 32 — Paragraph 36 of the judgment, in which — after analysing whether the citation of Article 2(2) by the Member State Court's own case-law bears out that dis- concerned was relevant — the Court ruled that 'it cannot be excluded that in a situation characterised by serious tinction. internal disturbances the carrying of fire-arms by police- women might create additional risks of their being assassinated and might therefore be contrary to the requirements of public safety' (my emphasis).

to Article 2(2) of the Directive). In my view, what actually led the Court to consider that exclusion justifiable in principle (subject to the test of proportionality, as to which see paragraph 38), was not so much the alleged weakness of women per se or a general desire to prevent them being subject to attack (for their own good) as the British authorities' fear that issuing women with firearms 'in a situation characterised by serious internal disturbances' could have increased the risk of such attacks and, consequently, the risk of their weapons falling into the hands of their assailants (see the statements by the United Kingdom Government in the Report for the Hearing,

in the European Union, edited by T. Hervey and D. point 20 above). O'Keefe, Wiley, 1996, Chapter 6, footnote 26. 31 — See paragraphs 18 and 20.

33 — Sec paragraphs 12 to 17. 34 — In Sirdar, I pointed out that 'the essence of the United Kingdom Government's argument seeking to justify the exclusion of women from the Royal Marines on grounds of comhat effectiveness lies in the apprehension that the 20. I have already mentioned that, accord- participation of women could have an adverse effect "on the morale and cohesion" of commando units ("fire ing to Advocate General Darmon, social teams")', and I considered to he of a 'markedly more requirements for the protection of women "social" slant... the observations contained in the docu- ment submitted to the national tribunal in the main (cultural, political and so on) could be proceedings' (point 45). I also queried whether 'combat relevant for the purposes of Article 2(2), by effectiveness can he safeguarded, even in cases in which women are allowed, taking particularly into account the way in which their presence is perceived by their male comrades in arms' (point 45; the emphasis does not appear i n the original). 35 — See paragraph 34 of my Opinion in Sirdar.

I - 83

OPINION O F M R LA PERGOLA — CASE C-285/98

Advocate General Darmon. However, if that approach were adopted, the scope of Article 2(2) would be defined by reference to a criterion other than the only two criteria laid down by that provision for the 38 — See the third recital of the Directive (my emphasis). purpose of permitting derogations from the 39 — See, among many, Case 149/77 Defrenne [1978] ECR 1365, paragraph 27; Joined Cases 75/82 and 117/82 principle of equal treatment: namely, the Razzouk and Beydoun v Commission [1984 ECR 1509, 'nature' of specific occupational activities paragraph 16; Case 151/84 Roberts v Tate & Lyle [1986] ECR 703, paragraph 35; Case 152/84 Marshall [1986] and the 'context in which they are carried ECR 723, paragraph 36; Case 262/84 Beets-Proper v Van Lanschot Bankiers [1986] ECR 7 7 3 , paragraph 38); out.' The result would therefore be a broad Johnston (cited in footnote 9 above), paragraph 38; Case C-158/91 Levy [1993] ECR I-4287, paragraph 16; and interpretation of a reservation regarded by Case C-13/94 P v S. and Cornwall County Council [1996] ECR I-2143, paragraph 19.

But above all — and again as a result of the amendments made by the Treaty of there would be a real risk that the aims of Amsterdam —, within the EC Treaty, the principle of equal treatment for men and women is no longer confined to the Directive would be wholly frustrated. pay-related aspects of the employment relationship (see Through the Directive, the Community was Article 119 of the EC Treaty, now Article 141 EC; Articles 117-120 of the EC Treaty have been replaced by seeking to implement equal treatment Articles 136-143 EC), but, as a result of an array of 'programmatic' provisions, this has become a principle between men and women — or, to be more that both informs Community action and is an objective of

With a view to achieving the social objectives listed in Arti- cle 117 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 to 143 EC) — which include the promotion of employment and the improvement of living and working conditions —, the new Article 118 of the EC Treaty requires the Community to support and complement the activities of the Member States in relation to various aspects of employment, including 'equality between men and women with regard to labour market opportunities and treatment at work' (see

I - 84

KREIL

41 — Men were allowed to train as midwives only in centres authorised by the ministry responsible (one in London and one i n central Scotland), ana were able to exercise that activity only in places listed by the ministry, that is to say, 43 — The United Kingdom Government stressed the special in four hospitals in London and Edinburgh (see the nature of the activity of midwife and expressed the fear Opinion of Advocate General Rozès, [19831 UCR 3458). that some women (or their husbands) might refuse the 42 — Sec the Opinion of Advocate General Rozès, p. 3458. 1 assistance of male midwives; it pointed out the unique role would point out in passing that the German Government played by midwives — who may be on duty 'alone, has provided no shred of evidence of ever having reviewed, particularly at night, in the midwifery ward of a hospital at least periodically, the discriminatory provisions in issue, ami above all at the patient's home' — during the pre-natal in accordance with Article 9(2) of the Directive. The and particularly the post-natal periods as regards care Sanitätsdienst decision of 1996, to which reference has involving intimate personal contact with the woman (see the Opinion of Advocate General Rozès, pp. 3458 and been made (see footnote 6 above), simply restates the 3459). historical reasons which prompted the drafters of the Constitution to introduce, forty years earlier, the 'obliga- 44 — See the extracts from my Opinion in Sirdar, quoted in tion' to protect women to the greatest possible extent. footnote 34 above.

22. The reservation contained in Arti- explain why that rule should be rigorously cle 2(2) of the Directive does not permit applied only where women need protection any difference in treatment based on gen- for biological reasons. Furthermore, as the eral considerations of a social or political Court has ruled, Article 2(3) in turn has an nature. Gender-based discrimination is not impact on the scope of Article 3(2)(c) of the in principle excluded, but it is justified only Directive, 46 with the result that, if the where the national legislature has made German Government's view were adopted, provision for it as a result of specific the latter provision, too, would lose all requirements, closely bound up with the practical relevance. And that is not all.

23. It is clear from a proper reading of the Directive does not. . . allow women to be combined provisions of Articles 2(2) and excluded from a certain type of employ- 9(2) of the Directive that there are other ment on the ground that public opinion grounds for discarding the idea that demands that women be given greater inequalities in treatment based on sex may protection than men against risks which be justified solely by reference to general affect men and women in the same way and political requirements for the protection of are distinct from women's specific needs of women — even, as in this case, require- protection.

. . (c) those laws, regulations and administrative provisions contrary to the 45 — As regards the importance of ensuring that Article 2(3) of principle of equal treatment when the concern for protec- the Directive has full practical effect, see Habermann- tion which originally inspired them is no longer well Beltermann, paragraph 24, and Case C-400/95 Larsson founded shall be revised. . .'. [1997] ECR I-2757, paragraph 22. 47 — See Johnston, paragraph 44.

25. In these proceedings, the Commission and the Italian Government have acknowl- 24. Moreover, were the contrary view to be edged that, while the exclusion of women adopted, women would continue to be from the armed forces for 'protective' marginalised by being confined to certain reasons is in principle acceptable, it is sections of the Bundeswehr only — with actually legitimate only when it relates to the risk that the old stereotypical division specific activities, and when the context in between the sexes would be perpetuated. 49 which those activities are carried out in Finally, as German legal commentators practice involves specific risks of a particu- have observed, as a result of being barred lar magnitude, such as the risks faced by from voluntary enlistment, women are armed police units in a civil war or by one being denied their moral independence. 50 of a country's élite assault forces (see point 14 above). 48 — To the same effect, see, for example, H. Fenwick, on. cit.,

It is clear from the abovementioned decision of the Bundesverfas- certain kinds of employment. . ., that con- sungsgericht, which clearly confirmed the principle that sideration may be decisive' on grounds of the Directive takes precedence over conflicting provisions of national law, that the administration — prompting very respect for private life (paragraph 14). In fierce criticism from the German Federation of Women Case 318/86 Commission v France, the Lawyers (Deutscher Juristinnenbund) and the Association of German Women (Deutscher Frauenring) which inter- vened in the case — sought to justify the ban in question Court then ruled to be insufficiently speci- on the ground that 'women are responsible for child care fic a derogation from the principle of equal and housework in addition to their occupational activity- far more often than men' (op. cit., p. 200). Similar treatment which applied to women in considerations appear in the Commission Communication of 20 March 1987, Protective legislation for women m the Member States of the European Community, COM(87) 105 final, section I-4, p. 5, hereinafter: 'the Communica- tion'. 51 — See Case 165/82 Commission v United Kingdom, para- graphs 14 to 16; Case 118/86 Commission v France, paragraph 25, and the Opinion of Advocate General Sir 50 — V. Kokott (op. cit., commentary on Article 12a, paragraph Gordon Slynn (pp. 3570-3571); and Sirdar (points 35 to 6). 37 of the Opinion).

relation, not to the whole of the French incompatible with the Directive, because it police force, but to five police units only; 52 was doubtful whether the principle of basically, according to the Court, it is only 'interchangeability' was either necessary after the specific activities for which sex is a or actually put into practice. At a concep- determining factor within those particular tual level, the 'interoperability' that is units have been identified that derogations supposed, in this case, to be a hallmark of pursuant to Article 2(2) of the Directive are the whole of the Bundeswehr is to some permissible (paragraphs 25 to 30). extent reminiscent of the 'interoperability' of the Royal Marines. According to the national court in Sirdar, the United King- dom Government had proved beyond ques- tion that the principle of 'interoperability' was consistently applied to all members of the Royal Marines; 54 for that reason, I considered the discriminatory measure in issue in that case to be sufficiently specific, even though it covered all posts in the 27. In this case, the exclusion of women Royal Marines. 55 Applying to this case the from the Bundeswehr is not restricted to principles drawn from Commission v specific units but covers, without distinc- France (which also guided my Opinion in tion, all sections other than the medical and Sirdar), I therefore take the view that the military-music services. The German Gov- 'interoperability' required of soldiers in the ernment has sought to justify its position by Bundeswehr is not sufficient to justify maintaining that women have to be totally the discrimination in question, since the excluded because all combat units must be German authorities have failed to prove capable of 'interoperable deployment' (see that this is a rule which is actually enforced point 14 above), without any distinction in all 'combat units', that is to say, in all between front-line duties (which present a units other than the medical and military- greater risk) and duties behind the lines music services. (which present a lesser risk). In other words, the effect of the general requirement for interoperability within the Bundeswehr is to render specific the derogation laid down in both Article 12a GG and the rules adopted on the basis of that constitutional provision. This interoperability calls to mind the 'interchangeability' of the police forces — in issue in Case 318/86 Commis- sion v France — which, according to the 28. That is not all. Interoperability applied French Government, justified the recruit- across-the-board to the armed forces would ment system operated in certain units. 53 be hard to reconcile with the fact that the However, that system was found to be different units are becoming ever more specialised and use increasingly sophisti- cated combat equipment, and that their members are frequently trained in military 52 — Commissaires (inspectors and superintendents), comman- dants and officiers de paix, inspecteurs (detectives), enquêteurs (investigators), gradés and gardiens de paix (sergeants and constables) (see pp. 3561 and 3562). 53 — See the comments on that point in my Opinion in Sirdar, 54 — See point 7 of my Opinion. point 36. 55 — See points 35 and 36 of my Opinion.

29. The non-specific nature of the deroga- tion from the principle of equal treatment 30. The considerations set out above lead contained in Article 12a GG and the rules me to conclude that the exclusion in issue is adopted on the basis of that provision not covered by either Article 2(2) of the would therefore appear to be incompatible Directive or by Article 2(3), and is there- with the Court's case-law from yet another fore incompatible with the Directive. How- point of view: where the discrimination is ever, should the Court take a different view, claimed to be justified by reference to the I consider it appropriate to make a number reservation under Article 2(2), it must be of further observations concerning both the sufficiently transparent to permit effective validity of the justification claimed by the monitoring by the Commission. 57 In the German authorities and the proportionality present case, the general nature of the of the system adopted by them. Were the national legislation at issue makes it impos- Court to find that the Directive docs not sible to ascertain whether all the divisions preclude the national legislation in issue, it from which women are barred 'actually would in fact be for the national court — correspond to specific activities for which

58 — Case 318/86 Commission v France, paragraph 27. 56 — See Sirdar, points 6 and 7 of my Opinion. 59 — In Commission v Germany, paragraph 38, the Court 57 — See Case 318/86 Commission v France, paragraphs 25 and explicitly referred to the Commission's specific right and 26; and, to the same basic effect, Commission v Germany duty, as guardian of the 'treaty, to monitor the situation. (paragraphs 36 et seq.). 60 — See Commission v Germany, paragraph 34.

32. I pointed out in Sirdar, in which the United Kingdom put forward an argument similar to that currently advanced by the German Government, that when the national court is assessing the validity and proportionality of reasons cited to justify a derogation based on Article 2(2), the 31. According to the German Government, Court's case-law does not require that the discretion to adopt derogations in the national court take into account an 'area terms set out above is justified in this case for historical reasons which explain the 62 — Case 41/74 Van Duyn v Home Office [1974] ECR 1337, 'moral obligation to protect women' in paragraphs 18 and 19. 63 — Case 30/77 Regina v Boucbereau [1977] ECR 1999, paragraphs 33 to 35. 64 — Regina v Boucbereau, paragraph 34; see also Van Duyn, 61 — See Johnston, paragraphs 38 and 39. paragraph 18.

I - 90

KREIL

of discretion' that the Member State con- immediately below, neither the German cerned would like to possess. 65 Constitution nor the Convention and the Protocol afford the kind of protection that would unfailingly guarantee that, although not admitted (with certain exceptions) to the Bundeswehr, women of German nation- ality would avoid any risk linked to enemy attack or the risk of being declared prisoner of war if captured.

(7) Criteria for assessing the validity and proportionality of the derogation in ques- tion

above). In reality, as will be apparent include, again according to figures provi- ded by the German authorities, some 49 500 women. It cannot, however, be 65 — See points 40-41 of my Opinion in Sirdar in which I refer to the judgment in Johnston. With more direct reference to assumed that international humanitarian the historical reasons underlying Article 12a GG, I would law accords all those who form part of the point out that in Vogt v Germany (judgment of 26 Sep- tember 1995, Vogt v Germany, Series A, Vol. 323), the administration the protection afforded to European Court of Human Rights (hereinafter the 'ECHR') was very reluctant to endorse the position of the civilian population under Article 51 of the German Government, according to which the experi- the Protocol. Besides, that same humanitar- ence Germany had suffered during the period that led to the Nazi regime provided sound justification for a measure ian law appears to accept, in some cases at that was clearly contrary to freedom of expression. In a least, that individuals employed in the case concerning the dismissal of a secondary school teacher on the ground that she was disloyal to the democratic administration may be deemed to be 'pris- constitution because she was an active member of the Deutsche Kommunistische Partei (German Communist oners of war' in the same way as 'comba- Party), the ECHR ruled that, not even the experience tants'. According to Article 50 of the

. . which they loyalty on the part of civil servants] as construed by the German courts is striking' (paragraph 59; my emphasis). accompany' do not belong to the civilian

35. It is also necessary to take into account practical considerations: it is not actually clear how it can be guaranteed that women employed, pursuant to Article 87b GG, at military headquarters or other command posts — as secretaries, for example — or as support staff in any division of the Bun- deswehr, can completely avoid the risks which international humanitarian law 'reserves' for 'combatants'. It is well known that, today, the use of modern long-range weapons systems means that, in the event 36. The more or less absolute exclusion of of conflict, the nerve centres of an army's women from the Bundeswehr on purely command and control structure are among 'protective' grounds is also inconsistent the initial targets. Consequently, there are a with what appears, in contrast, to be an substantial number of women, some employment policy for women that is far 49 500, employed in the Bundeswehr more open in relation to other activities, administration and required to engage in a wide range of 'non-military' activities 66 — The mix of civilian and military activities and the close alongside soldiers (who, according to the relationship between them within the Bundeswehr admin- German Government, are also engaged in istration are underlined by the fact that, as the German Government has pointed out, in other countries' armed administrative activities), who, it must be forces, there is no division of responsibilities between the 'civilian' and 'military' elements, as it is almost exclusively assumed, are not safe from enemy attack. the military that has administrative responsibility. That The national court ought therefore to assess being so, I wonder how it is possible to guarantee that women, many of whom are employed in Bundeswehr the reasonableness of a 'protective' mea- support services, 'on no account' suffer from enemy attacks on objectives such as military bases, arms stores and the sure, which, on the one hand, does not whole of the logistical infrastructure.

67 — In the Feuerwehrdienst decision (see footnote 49 above), 37. Finally, as regards the risks bound up the Bundesverfassungsgericht held to be unconstitutional the exclusion of women from compulsory service in fire- with the status of captive, that is to say fighting units — provided for in the legislation of more 'prisoner of war' status, in the light of than half the Länder — on the ground that the exclusion is not objectwely justified by the need to protect women from current international humanitarian law — risks to which men are not exposed and might perpetuate a traditional dwision of roles (pp. 109 to 113). That decision which has seen significant developments is particularly significant because, throughout the 1970s since the period immediately following the and 1980s, the Bundesverfassungsgericht had repeatedly ruled that the exclusion of women from that activity Second World War 69 — those risks appear (which is compulsory for all adult men who are physically- fit to serve but from which it is possible to be exempted by unquestionably diminished compared with paying the relevant local tax or 'Feuerwehrabgabe', if there arc sufficient volunteers to perform the duties assigned to the risks to which soldiers were exposed the fire service units) was objectively justified in view of during the period of history to which the the risks inherent in it, despite the fact that, in many Länder, women have, since 1978, been able to enlist as volunteers (for a better understanding of the problems discussed by the Bundesverfassungsgericht, see the judg- ment of the European Court of Human Rights of 18 J ulv 69 — According to Rodley, before World War II there was 1994, Schmidt v Germany, Series A, Vol. 291-B). virtually no international law of human rights (op. cit., p. 1 ); this did not begin to develop, inter aha i n relation to 68 — Zuleeg has already pointed out that contradiction (op. cit., armed conflicts, until the advent of the three Geneva p. 1020). This calls to mind, agam by way of example, the Conventions to which have been added over the years a activity of social worker in men's prisons: in Case 14/83 whole array of international instruments that arc no longer Von Colson and Kaman [1984] ECK 1891, i n submitting limited to laving down rules ('standard setting') but also to the Court a series of questions, for a preliminary ruling contain mechanisms aimed at securing respect for the concerning the penalties laid down under national law for undertakings entered into by States at an international employers guilty of discrimination based on sex, the level (the best-known is the procedure approved by the UN German national court had no doubts regarding the Economic and Social Council by its resolution N o 1503 of discriminatory nature of the refusal by a prison for male 27 May 1970, whereby the UN Commission on Muñían offenders to employ two qualified (female) social workers Rights is empowered to investigate or make a thorough on grounds related to sex on the basis of the 'problems and study of alleged serious violations of human rights and risks connected with the appointment of female candi- fundamental freedoms; see N. Rodley, op. cit., p. 6, dates (see paragraphs 2 and 3). footnote 18).

I-94