C-186/01

OPINION OF MRS STIX-HACKL — CASE C-186/01

O P I N I O N OF ADVOCATE GENERAL STIX-HACKL delivered on 28 November 2002 1

I — Introductory remarks equal treatment for men and women as regards access to employment, including promotion, and to vocational training and as regards working conditions and, on the 1. In Germany there is a general duty to conditions referred to in paragraph 2, perform military service which applies to social security. This principle is hereinafter men only. The subject-matter of the present referred to as "the principle of equal treat- proceedings is the compatibility of that ment".' duty with Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employ- ment, vocational training and promotion, and working conditions 2 ('Directive 3. Article 2(1) reads: 76/207') and with various provisions of the EC Treaty.

'For the purposes of the following provi- II — Legal background sions, the principle of equal treatment shall mean that there shall be no discrimination whatsoever on grounds of sex either directly or indirectly by reference in par- ticular to marital or family status.' A — Directive 76/207

2. Article 1(1) reads: 4. Article 3(1) reads:

'The purpose of this Directive is to put into effect in the Member States the principle of 'Application of the principle of equal treat- ment means that there shall be no discrimi- 1 — Original language: German. nation whatsoever on grounds of sex in the 2 — OJ 1976 L 39, p. 40. conditions, including selection criteria, for I - 2482

'The obligation to perform military service is satisfied by military service or, in the case referred to in Paragraph 1 of the Kriegs- dienstverweigerungsgesetz (Law on refusal (4) If, during a state of defence, civilian to perform war service)... by civilian ser- service requirements in the civilian public vice...'

3 — BGBl. I 1949 in the version of BGBl. 2000 I, p. 1755. 4 — BGBl. I 1956 p. 65, in the version of BGBl. 1995 I, p. 1756.

I - 2483

OPINION OF MRS STIX-HACKL — CASE C-186/01

III — Facts and principal arguments in the military service on sex-specific grounds. main proceedings The obligation of military service laid down in Article 12a(1) of the Grundgesetz for men only constituted unlawful discrimi- nation against men, since women now have the right to serve and bear arms but not the duty to perform military service.

I - 2484

DORY

11. The national court entertains doubts as ing question to the Court for a preliminary to the correctness of the position taken by ruling: the Federal Republic of Germany. It observes that compulsory military service results in any event in delayed access for men to employment or vocational training. Citing the Court's judgment in Schnorbus, 6 the national court considers it possible that this is a case of discrimination caught by Directive 76/207. Referring to Article 2(4) of Directive 76/207, according to which Does German military service for men only 'positive discrimination' is permitted in the conflict with European law? interests of actual equal treatment of the sexes, it considers that compulsory military service for men only may be justified. It observes here that 'the statistically sub- stantiated fact that in the course of their lives German women nowadays give birth to an average of 1.3 children... gives rise, on average, to a period of professional absence exceeding the duration of military service'. 13. On 26 September 2001 Mr Dory received a call-up order requiring him to start his military service on 1/5 November 2001.

IV — The question referred and the 14. By letters of 28 September 2001, Mr further course of the proceedings Dory applied to the national court to grant suspensive effect to his appeal against the call-up order and, on the same date, made an application to the Court of Justice for interim relief against the Federal Republic of Germany. That relief was to consist of a suspension of enforcement of the call-up order pending the Court's decision in the present proceedings. The application to the 12. By order of 4 April 2001, the Verwal- national court was granted by order of tungsgericht Stuttgart referred the follow- 19 October 2001. The application to the Court of Justice was dismissed as inadmiss- ible by order of 24 October 2001 (Case 6 — Case C-79/99 Schnorbus [2000] ECR I-10997. C-186/01 R).

17. Thus the Court has no power in the context of Article 234 EC to rule either on Must Articles 3(2) EC, 13 EC and 141 EC the interpretation of provisions of national and Directive 76/207 be interpreted as laws or regulations or on their conformity precluding a national provision such as with Community law. It may, however, German compulsory military service which supply the national court with an inter- applies to men only? pretation of Community law that will enable that court to resolve the legal problem before it. 7 8 — Case C-107/98, cited in note 7, paragraph 34, Case 251/83 Haug-Adrion [1984] ECR 4277, paragraph 9, Case C-168/95 Arcaro [1996] ECR I-4705, paragraph 21, and Case C-162/00 Pokrzeptowicz-Meyer [2002] ECR I-1049. 9 — The question does not relate in this context to other areas of 7 — Case C-107/98 Teckal (1999] ECR I-8121, paragraph 34, Community law, for example the right to freedom of and Case C-17/92 Distribuidores Cinematográficos [1993] movement for workers (Article 39 EC) or the freedom to ECR I-2239, paragraph 8. provide services (Article 49 et seq. EC).

I - 2486

DORY

22. Mr Dory takes the view that compul- 24. To counter the argument that compul- sory military service for men only is incom- sory military service for men only has other patible with Directive 76/207. It follows purposes than regulating access to the from Article 1 of the directive that it is labour market, Mr Dory refers to the applicable to national measures concerning Marshall judgment. 10That case concerned access to employment. What he is con- an automatic termination of service on cerned about is his access to general civilian reaching the age of eligibility for an old-age employment. Whether compulsory military pension, which differed for men and service may itself be regarded as 'employ- women. The Court held that that was ment' within the meaning of Directive within the scope of Directive 76/207, 76/207 is therefore immaterial for the although the national provision was based answer to the question. on grounds of social insurance law.

23. During performance of compulsory military service there is an absolute pro- hibition of employment for men. Fur- 25. Furthermore, since the Treaty of thermore, after performance of military Amsterdam, primary law contains in service, access to employment exists only Article 3(2) EC a general duty of equal in delayed form. Even though military service currently lasts for only nine months, its effect on access to employment is 10 — Case 152/84 Marshall [1986] ECR 723.

I - 2487

OPINION OF MRS STIX-HACKL — CASE C-186/01

treatment of men and women. Directive of Article 7(1) EC, the principle of limited 76/207 may thus no longer be understood individual competence of the Community as being applicable only where a national applies with respect to the relationship measure is deliberately targeted at sex- between Community competence and specific access to employment. national competence. The organisation of national defence as such is not within the competence of the Community.

11 — Case C-285/98, cited in note 5, and Case C-273/97 Sirdar 32. Article 141 EC and Directive 76/207 [1999] ECR I-7403. for their part merely regulate employment I - 2488

DORY

or service relationships voluntarily entered quality of that civic duty also follows from into, and consequently do not apply to a the fact that military service is expressly general obligation of service such as com- excepted under Article 4(3)(b) of the Euro- pulsory military service, which is clearly pean Convention on Human Rights from distinguished from the — always volun- the prohibition of forced labour. This is tarily chosen — profession of soldier, also laid down, in almost the same words, which was the sole subject-matter of the in Article 8(3)(c)(ii) of the UN Covenant on Kreil judgment. Civil and Political Rights.

35. In contrast to that is Article 6(1) of the UN Covenant on Economic, Social and 33. Directive 76/207, which concerns the Cultural Rights, which lays down the right elimination of barriers to access to employ- of everyone 'to gain his living by work ment and vocational training, is not which he freely chooses or accepts' without material in the present case. The pay given any restriction as regards military service. to persons performing military service, From that it may be concluded that that simply because of its small amount, is not Covenant does not regard the performance a remuneration for work with which one of compulsory military service as work in can earn one's living. A 'certain superficial the usual meaning of the word. resemblance' between a military service relationship and an employment relation- ship is not enough to make the directive applicable.

tary service cannot be equated with the 40. Further, in Schnorbus the Court ruled exercise of an occupational activity and on the compatibility with Community law therefore falls neither under the social of provisions which concerned not com- provisions of the EC Treaty nor under pulsory military service as such but its Directive 76/207. Military service is a consequences for the potential service rela- measure of national defence which falls tionship between candidates for practical within the exclusive competence of the legal training and the administration offer- Member States. The national decision to ing that training. It is significant, moreover, impose compulsory military service on men that the Court did not answer the sixth only does not fall as such within the scope question referred in that case, which related of Community law. to the discriminatory character of the limitation of compulsory military service to men.

38. The Court indeed ruled in the Kreil and Sirdar judgments that national decisions on 41. The Finnish Government points out the organisation of the armed forces are not that under Article 127 of the Finnish completely excluded from the application Constitution men and women are obliged of Community law. It also held in Sirdar, to take part in national defence. The duty however, that only such national measures to serve under arms is however laid down as affect access to employment or voca- by law only for men. It is possible, how- tional training or working conditions in the ever, for women to perform military service armed forces are subject to the Community on a voluntary basis. law principle of equal treatment of men and women.

44. The Commission submits that it fol- 47. The Commission emphasises, citing the lows from Article 12a of the German judgment in Lawrie-Blum, 13 that, while Grundgesetz and Paragraph 1 of the WPflG the public-law nature of an activity does that compulsory military service, as it not in itself exclude in principle the appli- developed in the traditions of many Euro- cation of Directive 76/207, certain public- pean States from the end of the 18th law duties of service which have developed century, constitutes a unilateral public-law historically, examples of which, besides service obligation and does not give rise to military service, include national particu- an employment relationship. The person larities such as the German dike mainten- performing military service provides ser- ance duty of island or coastal residents, vices — perhaps even against his will — cannot, however, be covered by Commu- while the State merely grants him a certain nity provisions aimed at working life. It financial support, but not a wage. Military would be different if for reasons of social service is not therefore part of the labour and health policy a Member State were to market. introduce a general duty to care for old and sick people.

45. As the Court held in the Kreil and Schnorbus judgments, the mere fact that military interests are concerned is not 48. Accordingly, neither Articles 13 EC relevant for the inapplicability of Commu- and 141 EC nor Directive 76/207, which nity law. What is decisive is rather whether was adopted on the basis of Article 235 of the service relationship is outside the scope of Community law on the basis of its purpose and structure. 13 — Case 66/85 Lawrie-Blum [1986] ECR 2121.

54. The heart of the national court's ques- tion is whether the question of compulsory 51. At the hearing the Commission sub- military service and hence of its structure is mitted additionally that, since compulsory completely outside the scope of Commu- military service is outside the jurisdiction of nity law because it is for the Member States the Community, consequences which arise to take suitable measures to guarantee their for Community law must be accepted. It external security, and hence to make

I - 2492

DORY

decisions on the organisation of their States, Community law sets limits to that armed forces. Should that not be the case, power. 14 the question would arise of what Commu- nity law could be applicable and whether it precluded compulsory military service for men only.

57. The Court has also examined in this respect inter alia national measures in the field of public security, which includes external as well as internal security. 15 In the Court's view, it is initially 'the Member 1. Basic principles of the applicability of States, which retain exclusive competence Community law to national measures for as regards the maintenance of public order guaranteeing external security and the safeguarding of internal security, [which] unquestionably enjoy a margin of discretion in determining what measures are most appropriate'. 16

I - 2493

OPINION OF MRS STIX-HACKL — CASE C-186/01

by women to certain posts for professional rules relating to the free movement of soldiers, it further stated: goods, persons and services, and not the social provisions of the Treaty, of which the principle of equal treatment of men and women... forms part...

'It is for the Member States, which have to adopt appropriate measures to ensure their It follows that application of the principle internal and external security, to take of equal treatment for men and women is decisions on the organisation of their not subject to any general reservation as armed forces. It does not follow, however, regards measures for the organisation of that such decisions must fall entirely out- the armed forces taken on grounds of the side the scope of Community law. protection of public security...'

I - 2494

DORY

61. Finally, Advocate General Jacobs dealt adopted for that purpose produce effects in in his Opinion in Commission v Greece 21 areas regulated by Community law, so that with a unilateral national embargo on trade the scope of Community law is affected, which was motivated exclusively by secur- those effects are to be tested by reference to ity policy. External trade policy falls within Community law (which takes preced- the exclusive competence of the Commu- ence 23). 24 nity. It was therefore doubtful whether Greece's action was to be tested for com- patibility with Article 113 of the EC Treaty (now, after amendment, Article 133 EC) or fell outside Community law as a measure of national security policy. Advocate General Jacobs said:

I - 2495

OPINION OF MRS STIX-HACKL — CASE C-1 86/01

the Member State which introduces it. It is 67. In accordance with the national court's for the Member States to decide whether question as reformulated, 25 Articles 3(2) and how to organise national armed forces EC, 13 EC and 141 EC and Directive to guarantee their external security. 76/207 should be examined in this respect in the present case.

64. But that does not mean that the specific form taken by national measures adopted 2. Provisions of the EC Treaty in this context is not to be examined with respect to their effects on other legal positions protected under Community law.

6 8 . The requirement laid down in Article 3(2) EC of eliminating inequalities 65. It may be seen from the order for between men and women and promoting reference that the present case concerns the equal treatment of the sexes is to be Community law requirement of equal treat- observed only in connection with actions ment of men and women in connection of the Community. However, compulsory with access to employment. military service is a national measure. Since the national legislature is not an addressee of this provision, Article 3(2) EC is not in itself a criterion of assessment. 26

7 0 . A r t i c l e 1 4 1 ( 1 ) EC ( f o r m e r l y nor Article 141 EC precludes a national Article 119(1) of the EC Treaty), according obligation of military service for men only. to settled case-law of the Court, 27 gives a direct entitlement to equal treatment of men and women. However, it is applicable only in questions of equal 'pay', not where equal access to paid employment is con- cerned. From Article 141(2) EC, which contains a definition of 'pay', it is apparent 3. Directive 76/207 that the discrimination alleged in the pres- ent case in connection with access to the civilian labour market is not covered by Article 141. Article 141(4) EC admittedly relates generally to 'ensuring full equality... between men and women in working life'. That provision, however, contains merely a 72. It must first be examined whether the clarification as regards the possibility of form taken by compulsory military service maintaining or adopting sex-specific or its effects fall within the material scope advantages in the legal systems of the of Directive 76/207. Only if that is the case Member States. As regards Article 141(3) will the question of discrimination on EC, what was said above in relation to grounds of sex have to be considered. Article 13 EC applies by analogy. That provision too merely contains a basis of competence for the creation of Community law measures concerning equal treatment for men and women in matters of employ- ment and occupation. 28 (a) Whether compulsory military service must itself be regarded as 'employment' within the meaning of Article 3(1) of Directive 76/207

(b) Whether the effects of compulsory mili- tary service on access by men to the civilian labour market are covered by the material scope of Directive 76/207 75. That is because the context in which Directive 76/207 speaks of 'jobs' and 'posts' should be borne in mind. Article 3 is intended as protection against discrimi- nation on grounds of sex in connection with 'access' to employment. Mr Dory's 77. It must first be ascertained what con- submissions do not concern an allegation of sequences compulsory military service has discrimination on grounds of sex in access or may have for access of men to the to military service. According to the order civilian labour market. During the perform- for reference, the proceedings are also not ance of military service, access to the concerned with whether the lack of access labour market is prohibited altogether in of women to military service may be a practice, simply because of the duty of disadvantage to them if they wish, for attendance. It cannot therefore be doubted instance, to pursue a career as a profes- that during that period men — unlike sional soldier. 30 women of the same age — in principle have no 'access to employment' at all, in the sense of civilian employment. After military service, access to the labour mar- ket exists without restriction, but access for men who have performed military service is delayed compared to equivalent women of the same age. 31 76. Mr Dory's argument relates, rather, to the alleged effects of compulsory military service on access by men to the civilian labour market after they have completed their military service. In relation to aspects of access to the civilian labour market, 78. Before examining whether those pos- itions, different from that of women, as 29 — Sirdar, cited in note 11, paragraph 17, Kreil, cited in note regards access to the civilian labour market 5, paragraph 18, and Schnorbus, cited in note 6, paragraph 28; Case 248/83 Commission v Germany [1985] ECR 1459, paragraph 16, and Case C-1/95 Gerster [1997] ECR I-5253, paragraph 18. 31 — This general conclusion applies regardless of any national 30 — Probably for this reason, Finland created the possibility of measures which compensate or are intended to compensate voluntary military service for women; see point 41 above. for such delays (for example, in the field of social security).

80. In the Kreil and Sirdar judgments 33 too, a corresponding relationship may be 83. In Schnorbus 35 the Court had to deal with unequal treatment with respect to access to vocational training (Article 4 of 32 — For example, Case C-345/89 Stoeckel [1991] ECR I-4047 Directive 76/207). In that case the unequal concerning a prohibition of nightwork for women only. 33 — Sirdar, cited in note 11, and Kreil, cited in note 5. Sirdar concerned decisions preventing access of women to certain marine commando units and Kreil statutory provisions by which women were excluded generally from armed service 34 — Case 318/86 Commission v France [1988] ECR 3559. in the armed forces. 35 — Cited in note 6.

I - 2499

OPINION OF MRS STIX-HACKL — CASE C-186/01

treatment consisted in the fact that men ments in Jackson and Cresswell 37 and who had completed military or substitute Meyers 38 on the one hand, and the Schnor- service had preference over other candi- bus 39 judgment on the other. Although dates or were admitted to vocational train- these cases differ in content, they appear to ing more quickly. Since the regulation of me to share a common point of view as admittance to vocational training was the regards the scope of Directive 76/207. national measure which had to be tested for discrimination, as it was the basis of the unequal treatment, the material scope of Directive 76/207 was again beyond doubt in view of the content of the national measure. 36 The Jackson and Cresswell and Meyers cases

85. In both cases the women applicants in (ii) The Court's case-law relating to the main proceedings were concerned as to national measures whose effect is differ- the conditions for entitlement to State ences of access to the labour market social benefits in favour of persons who did not belong to the regular labour market. It was claimed that those con- ditions for entitlement had the consequence that single parents (who are generally mothers) were disadvantaged as regards access to the regular labour market.

'That being so, family credit is concerned In paragraph 30 the Court then concluded: with access to employment, as referred to in Article 3 of the directive.'

'Consequently, the assertion that the 88. It might then be thought that the Court method of calculating claimants' actual interpreted the material scope of Directive earnings, which are used as the basis for 76/207 narrowly in those two judgments, determining the amount of the benefits, and ruled that it is not applicable in the might affect sole mothers' ability to take up case of — certain — national measures access to vocational training or part-time which are merely capable of producing employment, is not sufficient to bring such restrictions on access to employment with- schemes within the scope of Directive out having such access as their content 76/207.' ('subject-matter'). In this respect there are obvious parallels with the national obli- gation of military service for men only — that too results in sex-specific differences in access to the labour market, but its 'sub- ject-matter' is quite different, however, namely the guaranteeing of external secur- ity. 87. In paragraph 13 of Meyers 41 the Court held, referring to the above judgment:

89. It appears doubtful, however, whether the Court in fact laid down a general principle in that comprehensive sense in '... the directive is not rendered applicable Jackson and Cresswell. simply because the conditions of entitle- ment for receipt of benefits may be such as to affect the ability of a single parent to take up employment...'.

scope of Directive 76/207 in those cases question — to be kept separate from the was connected with the fact that the main question of a measure's origin in the field of proceedings concerned social security bene- social security — whether national meas- fits which were alleged to take a form ures which have the effect of making access which resulted in discrimination against to employment different and hence more women in connection with access to the difficult according to sex, although access labour market. Benefits which originate in to employment is not their 'subject-matter', the field of social security are, however, fall within the scope of the directive. according to the Court's case-law, 4 2 excluded from the scope of Directive 76/207 under Article 1(2) of the direc- tive. 4 3 That exclusion is in turn interpreted strictly by the Court, in accordance with general principles. The result is that the Court starts by giving a broad interpre- tation to the scope of Directive 76/207, seen in this way. Thus it concludes that a 92. Although the cited case-law of the national measure which as regards its Court does not compel an (ultimately) origin is a social security benefit never- narrow interpretation of the material scope theless — but only then — falls within of Directive 76/207,1 nevertheless consider the scope of Directive 76/207 if its 'subject- that such an interpretation may be justified. matter' is one of the areas covered by the The Court makes it clear, conversely, that directive, that is to say, access to employ- for a national measure to be outside the ment, including vocational training and scope of the directive, regardless of its promotion, or working conditions. Ulti- (formally) belonging to a social security mately, therefore, the Court adopted a system, only the content of the national narrow interpretation not only of the measure is relevant. It delimits equally exception but also of the rule, namely clearly, however, the content of the meas- which measures are in fact covered by the ure which it reserves for examination by scope of the directive. reference to the directive. Precisely because it proceeds, in accordance with its case-law, from a narrow interpretation of an excep- tion, a national measure cannot be tested against Directive 76/207 only if falls within none of the fields mentioned in Articles 3 to 5 of the directive.

regulate (in a sex-specific way) access to level of access to civilian employment, 46 'typical' women's or men's occupations the Court examined the measure which (the same is true of Article 5(2)(c) with directly regulated the conditions of the respect to working conditions). The list of access in question, since only that measure exceptions in Article 2(2) to (4) also shows regulated 'access to employment' within that the directive is in principle directed to the meaning of the directive. At the level of eliminating national measures which are 'access to employment' the measure whose aimed at regulating access to employment, subject-matter was the regulation of access vocational training or working conditions. referred to compulsory military service, There is no indication in the directive, on however, only as an example of the 'com- the other hand, that national measures pletion of compulsory service'. Compulsory which are not aimed at regulating the fields military service was thus clearly a condition covered but merely have the effect of for the measure, but was not itself subject creating differences there are also to be to examination by reference to the direc- subject to examination. tive, since it did not itself regulate 'access to employment' within the meaning of Direc- tive 76/207. The Court thus did not even have to consider the sixth question referred in Schnorbus. 47

The Schnorbus case

96. Here too the Court clearly pro- 94. It seems to me that the Court also ceeded — albeit not expressly — in this adopted a comparable approach — respect from a concept of the scope of regardless of the other conditions — in its Directive 76/207 according to which judgment in Schnorbus. 44 The subject of its national measures which merely have the examination by reference to the directive effect of restricting access to vocational with respect to access to practical legal training but do not regulate it as their training was not the provisions on com- 'subject-matter' are outside the scope of the pulsory military service as such but rather directive. the provisions which 'govern the circum- stances in which the admission of appli- cants to practical legal training may... be delayed...'. 45

99. In my opinion, therefore, in connection with compulsory military service from the point of view of access to the normal labour market, where Mr Dory considers himself discriminated against in the present case, the only provisions to be tested against Directive 76/207 are those which 101. The above considerations do not, have the conditions of access to civilian however, justify the conclusion that any employment as their 'subject-matter', such purported 'subject-matter' of a national as compensatory measures, as in Schnor- measure would be capable of removing bus, which use the completion of compul- altogether from review by reference to sory military service as an (objective) dis- Directive 76/207 a measure which merely tinguishing criterion. has the effect of thus producing sex-specific disadvantages in access to the labour mar- ket.

100. Compulsory military service as such, on the other hand, is in a sufficiently direct relationship to the question of equal treat- ment to raise a question of discrimination under Directive 76/207 only with respect to access to posts in a professional army. 48 In 102. That is because, in my opinion, in other words, compulsory military service interpreting the scope of Directive 76/207, can enter the scope of the directive only in Article 3(2) EC must now also be taken so far as discrimination on grounds of sex is into account. That provision of primary law was not yet in force at the time when the directive was drawn up. However, the 48 — See point 75 above. Community is now expressly required by

103. As regards the scope of Article 3(2) EC, it may be seen that it applies to the Community's 'activities referred to' in Article 3(1) EC. Community law concern- ing the equal treatment of men and women 105. In my view, it follows from the in access to employment may be regarded requirement to promote equality in as 'social policy' within the meaning of Article 3(2) EC that an interpretation of Article 3(1)(j) EC. 4 9 As regards the 'activ- the material scope of Directive 76/207 such ities referred to', Article 3(2) EC imposes as that put forward above 50 requires the an obligation on 'the Community'. That following clarification: These national presumably includes the Court when deal- measures should initially be excluded from ing, in connection with a reference for a the scope of the directive only if they are preliminary ruling, with the interpretation shown to have exclusively a 'subject-mat- of secondary law in the field of social ter' other than access to employment, policy. including vocational training and pro- motion, or working conditions. National measures of the kind referred to which, for example, pursue as it were as a secondary aim a sex-specific regulation of access to the labour market would thus indeed be covered by the scope of Directive 76/207. In addition, it could be considered whether 104. As to content, Article 3(2) EC obliges the alleged 'subject-matter' of the national the Community to 'promote' equality of measure in question ought not also to be men and women. It appears scarcely com- made amenable to some extent to a review patible with that requirement of promotion of content by reference to the aims of to interpret the material scope of Directive Article 3(2) EC, at least where that 'sub- 76/207 so that national measures (with ject-matter' concerns one of the fields sex-specific consequences for access to the referred to in Article 3(1) EC. 51 It might labour market) were always exempted from have to be examined here whether and to what extent the 'subject-matter' was con- sistent with the promotion requirement in 49 — Directive 76/207 was adopted on the basis of Article 235 of the EC Treaty. The directive which has just entered into force (5 October 2002), Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 amending Council Directive 76/207/EEC on the 50 — See point 98 above. implementation of the principle of equal treatment for men 51 — For clarity, I point out again that this is not intended to and women as regards access to employment, vocational assert that the requirement of promotion in Article 3(2} EC training and promotion, and working conditions {OJ 2002 is aimed at national measures. The above considerations L 269, p. 15), was adopted on the basis of Article 141(3) relate to the 'subject-matter' of national measures only in EC. That article is part of Title XI, Chapter 1, 'Social so far as it is the relevant criterion for the applicability of provisions'. secondary law on equal treatment of the sexes.

107. Since, according to submissions which are not in dispute in this respect, national compulsory military service for men only has a subject-matter other than access to employment, including vocational training 110. In conclusion, it must therefore be and promotion, or working conditions — stated that Directive 76/207 does not pre- namely the guaranteeing of the external clude a national obligation of military security of Germany by means of a specific service for men only, such as that at issue form of organisation of the armed in the main proceedings. forces — this national measure is in prin- ciple outside the material scope of Directive 76/207. 52 — Sec point 63 above.

I - 2506

DORY

VI — Conclusion

111. In the light of the foregoing, I propose that the Court give the following answer to the question as reformulated:

Articles 3(2) EC, 13 EC and 141 EC and Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions are to be interpreted, as Community law now stands, as not precluding a national provision such as the German obligation of military service which applies to men only.