CELEX: 62001CJ0186
Inapplicability of Community law to compulsory military service
Equal treatment of men and women
Article 2 of Directive 76/207/EEC
Compulsory military service in Germany limited to men only
Directive not applicable

By order of 4 April 2001, received at the Court on 30 April 2001, the Verwaltungsgericht Stuttgart (Administrative Court,
Stuttgart) referred to the Court for a preliminary ruling under Article 234 EC a question on the interpretation of Article
2 of 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 (OJ 1976 L 39, p. 40) and,
more generally, on the compatibility with Community law of limiting compulsory military service in Germany to men.
That question was raised in proceedings between Mr Dory and the Federal Republic of Germany concerning a decision of the Kreiswehrersatzamt
Schwäbisch Gmünd (District Recruiting Office, Schwäbisch Gmünd,
the KSG) refusing to exempt him from call-up by the army and compulsory military service.
Legal background
Community law
Under Article 2 EC: The Community shall have as its task, by establishing a common market and an economic and monetary union and by implementing
common policies or activities referred to in Articles 3 and 4, to promote throughout the Community a harmonious, balanced
and sustainable development of economic activities, a high level of employment and of social protection, equality between
men and women, sustainable and non-inflationary growth, a high degree of competitiveness and convergence of economic performance,
a high level of protection and improvement of the quality of the environment, the raising of the standard of living and quality
of life, and economic and social cohesion and solidarity among Member States.
Article 3(2) EC states that, in the context of the activities referred to in Article 3(1) EC carried on for the purposes set
out in Article 2 EC,
the Community shall aim to eliminate inequalities, and to promote equality, between men and women.
Under Article 13 EC: Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community,
the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate
action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.
Under Article 141(1) EC: Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal
value is applied.
Article 141(3) EC states: The Council, acting in accordance with the procedure referred to in Article 251, and after consulting the Economic and Social
Committee, shall adopt measures to ensure the application of the principle of equal opportunities and equal treatment of men
and women in matters of employment and occupation, including the principle of equal pay for equal work or work of equal value.
Article 1(1) of Directive 76/207 provides: The purpose of this Directive is to put into effect in the Member States the principle of 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 conditions referred to in paragraph 2, social security. ...
Article 2(1) to (3) of that directive reads as follows:
1.
For the purposes of the following provisions, the principle of equal treatment shall mean that there shall be no discrimination
whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status.
2.
This Directive shall be without prejudice to the right of Member States to exclude from its field of application those occupational
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.
3.
This Directive shall be without prejudice to provisions concerning the protection of women, particularly as regards pregnancy
and maternity.
Under Article 3(1) of Directive 76/207: Application of the principle of equal treatment means that there shall be no discrimination whatsoever on grounds of sex in
the conditions, including selection criteria, for access to all jobs or posts, whatever the sector or branch of activity,
and to all levels of the occupational hierarchy.
National legislation
Under Article 12a of the Grundgesetz für die Bundesrepublik Deutschland (Basic Law of the Federal Republic of Germany), in
the version published in BGBl. 2000 I, p. 1755 (
the Grundgesetz):
1.
Men who have attained the age of 18 years may be required to serve in the armed forces, in the Federal Border Guard, or in
a civil defence organisation.
...
4.
If, during a state of defence, civilian service requirements in the civilian public health and medical system and in the stationary
military hospital organisation cannot be met on a voluntary basis, women between 18 and 55 years of age may be assigned to
such services by or pursuant to a law. They may on no account be required to bear arms.
The Wehrpflichtgesetz (Federal law on military service), in the version of 15 December 1995, applicable from 1 January 1996
(BGBl. 1995 I, p. 1756), provides in Paragraph 1(1), headed
Law on compulsory military service: General obligation to perform military service: All men who have attained the age of 18 years and are Germans within the meaning of the Grundgesetz are obliged to perform
military service ...
Under Paragraph 3(1) of that law,
[t]he obligation to perform military service is satisfied by military service or, in the case referred to in Paragraph 1 of
the Kriegsdienstverweigerungsgesetz (Law on refusal to perform war service) of 28 February 1983 (BGBl. I, p. 203), by civilian
service ....
The main proceedings and the question referred for a preliminary ruling
Mr Dory was born on 15 June 1982. After receiving a questionnaire in September 1999 as a preliminary to the medical examination
to determine his fitness for military service, he requested the KSG to be exempted from call-up by the army and compulsory
military service. In support of that request, he submitted that the Wehrpflichtgesetz was contrary to Community law, citing
Case C-285/98
Kreil
[2000] ECR I-69, in which the Court held that women were not to be excluded from access to all posts in the German armed
forces.
By decision of 3 February 2000, the KSG rejected his request, stating that the judgment in
Kreil
concerned only the voluntary access of women to careers in the armed forces, not the question of compulsory military service,
and that the obligation to perform such service remained within the sole competence of the Member States.
Mr Dory's appeal against that decision was dismissed by the Wehrbereichsverwaltung (Military Area Administration). He thereupon
brought an action in the Verwaltungsgericht Stuttgart, in which he argued that the fact that women have a right of access
to military posts in accordance with
Kreil
but are exempted from the obligation to perform military service, while that obligation is imposed on men, is contrary to
the principle of equality and constitutes unlawful discrimination against men.
The defendant in the main proceedings submitted that no provision of the EC Treaty allows compulsory military service to be
regarded as an activity falling under Community law. The organisation of that service is within the competence of each Member
State. Neither Articles 3(2) EC and 13 EC, which do not as such provide a basis of competence for the Community but merely
define the conditions of exercise of powers conferred by other provisions, nor Article 141 EC and Directive 76/207, which
relate solely to occupational activities, are capable of application in the main proceedings.
The Verwaltungsgericht Stuttgart expressed doubts as to the latter arguments. On the one hand, referring to Case C-79/99
Schnorbus
[2000] ECR I-10997, it observed that performance of military service delayed access by men to employment and vocational training
and could therefore constitute discrimination on grounds of sex within the meaning of Article 2(1) of Directive 76/207. On
the other hand, it considered that that difference in treatment could nevertheless be justified as specific preferential treatment
for women, compensating in part for the periods of interruption of work due to maternity and child-rearing.
In those circumstances, the Verwaltungsgericht Stuttgart considered it necessary for the Court to define the scope of Community
law in this respect. It therefore decided to stay the proceedings and refer the following question to the Court for a preliminary
ruling: Having regard in particular to the interpretation of Article 2 of Directive 76/207/EEC ..., is the fact that in Germany military
service is compulsory only for men contrary to Community law?
On 26 September 2001 Mr Dory received call-up papers requiring him to commence his military service between 1 and 5 November
2001.
By letters of 28 September 2001, Mr Dory made an application to the national court and an application for interim measures
to the Court, seeking suspension of enforcement of the call-up. By order of 19 October 2001, the national court granted the
application. By order of 24 October 2001 in Case C-186/01 R
Dory
[2001] ECR I-7823, the Court declared the application for interim measures inadmissible.
The question referred for a preliminary ruling
Observations submitted to the Court
Mr Dory submits that compulsory military service has the effect of prohibiting the exercise of an occupation during the period
of that service and of delaying access to employment. It therefore falls under Directive 76/207 and constitutes discrimination
prohibited by that directive. It is contrary in any event to the general principle of equality of men and women set out in
Article 3(2) EC.
The German Government observes, first, that compulsory military service is of fundamental importance in the Federal Republic
of Germany. It is intended to ensure close contact between the armed forces and the population and so to guarantee the democratic
transparency of the military, and it is a factor of national integration especially between the young generations of the old
and new
Länder
. The manpower needed to defend the country in time of war is not sufficient without the reserves provided by those called
up for military service.
The German Government submits, second, that military service comes within the field of organisation of the armed forces, an
essential field of public authority which remains within the competence of the Member States. It considers that that analysis
was accepted by the Court in Case C-273/97
Sirdar
[1999] ECR I-7403, paragraph 15, and
Kreil
, paragraph 15.
In any event, it submits that limiting compulsory military service to men ─ even on the assumption that that service may fall
within the scope of the Treaty and Directive 76/207 ─ is not contrary to Community law. First, Article 3(2) EC, which states
that it is a Community aim to promote equality between men and women, applies only to specific measures taken by the Community
for that purpose on other legal bases. Next, Article 13 EC has no direct effect and empowers the Council to take measures
against discrimination on grounds of sex only within the areas of competence given it by the Treaty. Finally, Article 141
EC and Directive 76/207 only govern employment relationships resulting from a contract between an employer and an employee,
so that they are not applicable to the general obligation of service which military service constitutes for those called upon
to perform it.
The French Government considers that performance of compulsory military service cannot be equated with the occupation of a
post and consequently does not come under the social provisions of the Treaty or under Directive 76/207. The organisation
of such service constitutes a measure relating to national defence, within the exclusive competence of the Member States.
The Finnish Government submits that fundamental choices of defence policy are for the Member States to make, as the Court
held in
Kreil
, and that Community law is not applicable to the main proceedings. In any event, the obligation to perform military service
does not concern the conditions of access to the military profession and is therefore not within the scope of Directive 76/207.
Moreover, the fact that the obligation is limited to men does not compromise the progress of women's careers in the armed
forces, since they still have the possibility of voluntary military service and thus being placed in the same position as
men called up for military service.
The Commission considers that compulsory military service is a service obligation under public law which is unilateral and
does not place the persons concerned in an employment relationship with an employer. So that service does not form part of
the employment market, and is therefore outside the scope of Community law. It does not restrict the scope of that law beyond
what is inherent in its nature. It is therefore unnecessary to examine whether limitation to men of the obligation to perform
such service can be justified under Directive 76/207. The dispute in the main proceedings is thus very different from the
previous cases in which the Court has given judgment. The Commission submits that the Member States may consequently rely
in this connection on Article 6(3) EU and Article 5 EC for their sovereignty in defence matters to be respected in accordance
with the forms developed in their national traditions.
Findings of the Court
To determine whether or not limitation of compulsory military service to men is compatible with the principle of equal treatment
of men and women in Community law, the conditions for applying that law to activities relating to the organisation of the
armed forces must first be determined.
Measures taken by the Member States in this domain are not excluded in their entirety from the application of Community law
solely because they are taken in the interests of public security or national defence.
As the Court has already held, the only articles in which the Treaty provides for derogations applicable in situations which
may affect public security are Articles 30 EC, 39 EC, 46 EC, 58 EC, 64 EC, 296 EC and 297 EC, which deal with exceptional
and clearly defined cases. It cannot be inferred from those articles that the Treaty contains an inherent general exception
excluding all measures taken for reasons of public security from the scope of Community law. To recognise the existence of
such an exception, regardless of the specific requirements laid down by the Treaty, might impair the binding nature of Community
law and its uniform application (see, to that effect, Case 222/84
Johnston
[1986] ECR 1651, paragraph 26,
Sirdar
, paragraph 16, and
Kreil
, paragraph 16).
The concept of public security, within the meaning of the Treaty articles cited in the preceding paragraph, covers both a
Member State's internal security, as in the
Johnston
case, and its external security, as in the
Sirdar
case (see, to that effect, Case C-367/89
Richardt and
Les Accessoires Scientifiques
[1991] ECR I-4621, paragraph 22, Case C-83/94
Leifer and Others
[1995] ECR I-3231, paragraph 26,
Sirdar
, paragraph 17, and
Kreil
, paragraph 17).
Furthermore, some of the derogations provided for by the Treaty concern only the rules relating to free movement of persons,
goods, capital and services, and not the social provisions of the Treaty, of which the principle of equal treatment for men
and women forms part. In accordance with settled case-law, that principle is of general application and Directive 76/207 applies
to employment in the public service (see, to that effect, Case 248/83
Commission
v
Germany
[1985] ECR 1459, paragraph 16, Case C-1/95
Gerster
[1997] ECR I-5253, paragraph 18,
Sirdar
, paragraph 18, and
Kreil
, paragraph 18).
Thus the Court held that Directive 76/207 was applicable to access to posts in the armed forces and that it was for the Court
to verify whether the measures taken by the national authorities, in the exercise of their recognised discretion, did in fact
have the purpose of guaranteeing public security and whether they were appropriate and necessary to achieve that aim (see
Sirdar
, paragraph 28, and
Kreil
, paragraph 25).
Certainly, decisions of the Member States concerning the organisation of their armed forces cannot be completely excluded
from the application of Community law, particularly where observance of the principle of equal treatment of men and women
in connection with employment, including access to military posts, is concerned. But it does not follow that Community law
governs the Member States' choices of military organisation for the defence of their territory or of their essential interests.
It is for the Member States, which have to adopt appropriate measures to ensure their internal and external security, to take
decisions on the organisation of their armed forces, as the Court observed in
Sirdar
, paragraph 15, and
Kreil
, paragraph 15.
The German Government submits that compulsory military service is of great importance in Germany, both politically and in
terms of the organisation of the armed forces. It stated, in its written observations and at the hearing, that the institution
of such service makes a contribution to the democratic transparency of the military, national integration, the link between
the armed forces and the population, and the mobilisation of the manpower needed by the armed forces in the event of a conflict.
Such a choice, enshrined in the Grundgesetz, consists in imposing an obligation to serve the interests of territorial security,
albeit in many cases to the detriment of access of young people to the labour market. It thus takes precedence over the objectives
of policies aimed at the work prospects of young people.
The decision of the Federal Republic of Germany to ensure its defence in part by compulsory military service is the expression
of such a choice of military organisation to which Community law is consequently not applicable.
It is true that limitation of compulsory military service to men will generally entail a delay in the progress of the careers
of those concerned, even if military service allows some of them to acquire further vocational training or subsequently to
take up a military career.
Nevertheless, the delay in the careers of persons called up for military service is an inevitable consequence of the choice
made by the Member State regarding military organisation and does not mean that that choice comes within the scope of Community
law. The existence of adverse consequences for access to employment cannot, without encroaching on the competences of the
Member States, have the effect of compelling the Member State in question either to extend the obligation of military service
to women, thus imposing on them the same disadvantages with regard to access to employment, or to abolish compulsory military
service.
In the light of all the foregoing, the answer to the national court's question must be that Community law does not preclude
compulsory military service being reserved to men.
Costs
The costs incurred by the German, French and Finnish Governments and by the Commission, which have submitted observations
to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings
pending before the national court, the decision on costs is a matter for that court.
On those grounds,
THE COURT,
in answer to the question referred to it by the Verwaltungsgericht Stuttgart by order of 4 April 2001, hereby rules:
Rodríguez Iglesias
Puissochet
Wathelet
Schintgen
Timmermans
Gulmann
Edward
Jann
Skouris
Macken
Colneric
von Bahr
Cunha Rodrigues
Delivered in open court in Luxembourg on 11 March 2003.
R. Grass
G.C. Rodríguez Iglesias
Registrar
President
–
Language of the case: German.