Opinion of the Advocate General — ECLI:EU:C:1999:525
Date: 1999-10-26
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 
Social policy — Men and women — Access to employment and working conditions — 
Equal treatment — Derogations on grounds of public security — Subject to the rules of 
Community law — Option available under Article 2(2) of Directive 76/207 — Scope — 
Total exclusion of women from armed units of the German Bundeswehr — Not 
permissible — Breach of the principle of proportionality — Derogation provided for 
under Article 2(3) of the Directive — Not applicable 
(Council Directive 76/207, Art. 2(2) and (3)) 
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SUMMARY — CASE C-285/98 
Although 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, it does not follow that 
such decisions must fall entirely outside the 
scope of Community law. It is not possible, 
without impairing the binding nature of 
Community law and its uniform applica­
tion, to recognise that there is inherent in 
the Treaty a general exception covering all 
measures taken by a Member State for 
reasons of public security, above and 
beyond the specific cases contemplated in 
certain provisions. Accordingly, such mea­
sures are subject to Directive 76/207 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. 
When, in the case of the organisation of the 
armed forces in the Federal Republic of 
Germany, the competent national authori­
ties avail themselves of the option open to 
them under Article 2(2) of the Directive — 
that is to say, of excluding from the scope 
of the Directive occupational activities for 
which, by reason of their nature or the 
context in which they are carried out, sex 
constitutes a determining factor — they 
cannot, without contravening the principle 
of proportionality, adopt the general posi­
tion that the composition of all armed units 
in the Bundeswehr must remain exclusively 
male. Since the derogations provided for in 
Article 2(2) can apply only to specific 
activities, such an exclusion, which applies 
to almost all military posts in the Bundes­
wehr, cannot be regarded as a derogating 
measure justified by the specific nature of 
the posts in question or by the particular 
context in which the activities in question 
are carried out. 
As regards the possible application of 
Article 2(3) of the Directive, under which 
differences of treatment are allowed out of 
a concern to protect women, the total 
exclusion of women from all military posts 
involving the use of arms is not one of the 
differences of treatment permissible. 
It follows that Directive 76/207 precludes 
the application of provisions of national 
law, such as those of German law, which 
impose a general exclusion of women from 
military posts involving the use of arms and 
which allow them access only to the 
medical and military-music services. 
(see paras 15-16, 19-20, 27, 29-32 and 
operative part) 
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