Tanja Kreil v Bundesrepublik Deutschland.
Date: 2000-01-11
15 The Court observes first of all that, as it held in paragraph 15 of its judgment of 26 October 1999 in Case C-273/97 Sirdar [1999] ECR I-0000, 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, however, that such decisions are bound to fall entirely outside the scope of Community law.
16 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 36, 48, 56, 223 (now, after amendment, Articles 30 EC, 39 EC, 46 EC and 296 EC) and 224 (now Article 297 EC), which deal with exceptional and clearly defined cases.  It is not possible to infer from those articles that there is inherent in the Treaty a general exception excluding from the scope of Community law all measures taken for reasons of public security.  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 v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, paragraph 26, and Case C-273/97 Sirdar, cited above, paragraph 16).
17 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 this 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, and Sirdar, cited above, paragraph 17).
18 Furthermore, some of the derogations provided for by the Treaty concern only the rules relating to the free movement of goods, persons and services, and not the social provisions of the Treaty, of which the principle of equal treatment for men and women relied on by Tanja Kreil forms part.  In accordance with settled case-law, this principle is of general application and the Directive applies to employment in the public service (Case 248/83 Commission v Germany [1985] ECR 1459, paragraph 16, Case C-1/95 Gerster v Freistaat Bayern [1997] ECR I-5253, paragraph 18, and Sirdar, cited above, paragraph 18).
20 Under Article 2(2) of the Directive, Member States may exclude 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; it must be noted, however, that, as a derogation from an individual right laid down in the Directive, that provision must be interpreted strictly (Johnston, paragraph 36, and Sirdar, paragraph 23).
21 The Court has thus recognised, for example, that sex may be a determining factor for posts such as those of prison warders and head prison warders (Case 318/86 Commission v France [1988] ECR 3559, paragraphs 11 to 18), for certain activities such as policing activities performed in situations where there are serious internal disturbances (Johnston, paragraphs 36 and 37) or for service in certain special combat units (Sirdar, paragraphs 29 to 31).
22 A Member State may restrict such activities and the relevant professional training to men or to women, as appropriate.  In such a case, as is clear from Article 9(2) of the Directive, Member States have a duty to assess periodically the activities concerned in order to decide whether, in the light of social developments, the derogation from the general scheme of the Directive may still be maintained (Johnston, paragraph 37, and Sirdar, paragraph 25).
23 In determining the scope of any derogation from a fundamental right such as the equal treatment of men and women, the principle of proportionality, one of the general principles of Community law, must also be observed, as the Court pointed out in paragraph 38 of Johnston and paragraph 26 of Sirdar.  That principle requires that derogations remain within the limits of what is appropriate and necessary in order to achieve the aim in view and requires the principle of equal treatment to be reconciled as far as possible with the requirements of public security which determine the context in which the activities in question are to be performed.
24 However, depending on the circumstances, national authorities have a certain degree of discretion when adopting measures which they consider to be necessary in order to guarantee public security in a Member State (Leifer, paragraph 35, and Sirdar, paragraph 27).
25 As the Court emphasised in paragraph 28 of its judgment in Sirdar, the question is therefore whether, in the circumstances of the present case, the measures taken by the national authorities, in the exercise of the discretion which they are recognised to enjoy, do in fact have the purpose of guaranteeing public security and whether they are appropriate and necessary to achieve that aim.
27 In view of its scope, such an exclusion, which applies to almost all military posts in the Bundeswehr, 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.  The derogations provided for in Article 2(2) of the Directive can apply only to specific activities (see, to this effect, Commission v France, cited above, paragraph 25).
30 Finally, as regards the possible application of Article 2(3) of the Directive, upon which the German Government also relies, this provision, as the Court held in paragraph 44 of its judgment in Johnston, is intended to protect a woman's biological condition and the special relationship which exists between a woman and her child.  It does not therefore allow women to be excluded from a certain type of employment on the ground that they should be given greater protection than men against risks which are distinct from women's specific needs of protection, such as those expressly mentioned.