Angela Maria Sirdar v The Army Board and Secretary of State for Defence.
Date: 1999-10-26
15 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 must 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, 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 covering 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).
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 main proceedings in Johnston, and its external security (in this connection, see Case C-367/89 Richardt and `Les Accessoires Scientifiques' [1991] ECR I-4621, paragraph 22, and Case C-83/94 Leifer and Others [1995] ECR I-3231, paragraph 26).
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 of men and women on which Mrs Sirdar relies 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, and Case C-1/95 Gerster v Freistaat Bayern [1997] ECR I-5253, paragraph 18).
19 It follows that application of the principle of equal treatment for men and women is not subject to any general reservation as regards measures for the organisation of the armed forces taken on grounds of the protection of public security, apart from the possible application of Article 224 of the Treaty, which concerns a wholly exceptional situation and is the subject-matter of the third and fourth questions (Johnston, paragraph 27).
23 Under Article 2(2) of the Directive, Member States have the option of excluding from the scope of that 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).
24 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), or for certain activities such as policing activities where there are serious internal disturbances (Johnston, paragraph 37).
25 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).
26 In determining the scope of any derogation from an individual 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.  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.
27 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).
28 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.
29 As pointed out in paragraph 7 of this judgment, the reason given for refusing to employ the applicant in the main proceedings as a chef with the Royal Marines is the total exclusion of women from that unit by reason of the `interoperability' rule established for the purpose of ensuring combat effectiveness.
30 It is clear from the documents in the case that, according to the findings already made by the national court, the organisation of the Royal Marines differs fundamentally from that of other units in the British armed forces, of which they are the `point of the arrow head'. They are a small force and are intended to be the first line of attack.  It has been established that, within this corps, chefs are indeed also required to serve as front-line commandos, that all members of the corps are engaged and trained for that purpose, and that there are no exceptions to this rule at the time of recruitment.
31 In such circumstances, the competent authorities were entitled, in the exercise of their discretion as to whether to maintain the exclusion in question in the light of social developments, and without abusing the principle of proportionality, to come to the view that the specific conditions for deployment of the assault units of which the Royal Marines are composed, and in particular the rule of interoperability to which they are subject, justified their composition remaining exclusively male.