Tanja Kreil vs' Bundesrepublik Deutschland

1
Tanja Kreil vs. Bundesrepublik Deutschland

• Case C-285/98
• Preliminary ruling

2
Parties

• REFERENCE to the Court under Article 177 of the
  EC Treaty (now Article 234 EC) by the
  Verwaltungsgericht (Administrative Court)
  Hannover, Germany, for a preliminary ruling in
  the proceedings pending before that court
  between
• Tanja Kreil and,
• Bundesrepublik Deutschland

3
Subject of the Case

• Question on the interpretation 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

4
The Bundeswehr

• Germanys armed forces
• Established in 1955, for the first 2 decades it
  was exclusively a boys' club
• 1975 trained female medics and pharmacists were
  permitted to engage in a military career in the
  armed forces but only as enlisted personnel in
  the medical corps
• 1991 women were given the chance to operate as
  musicians in the armys music corps
• Women may enlist only as volunteers
• But, women were excluded from the armed service
  as the German Grundgesetz (Basic Law) expressly
  imposed a general exclusion of women from
  military posts involving the use of arms in art.
  12a sec. 4 GG

5
The Grundgesetz

• Article 12a of the Grundgesetz für die
  Bundesrepublik Deutschland (Basic Law for the
  FRG) provides
• (1) Men who have attained the age of eighteen
  years may be required to serve in the Armed
  Forces, in the Federal Border Guard, or in a
  Civil Defence organisation.
• (4) If, while a state of defence exists, civilian
  service requirements in the civilian public
  health and medical system or in the stationary
  military hospital organisation cannot be met on a
  voluntary basis, women between eighteen and
  fifty-five years of age may be assigned to such
  services by or pursuant to a law. They may on no
  account render service involving the use of arms.'

6
Access for women to military

• Access for women to military posts in the
  Bundeswehr are governed in particular by
• Article 1(2) of the Soldatengesetz (Law on
  Soldiers)
• Article 3a of the Soldatenlaufbahnverordnung
  (Regulation on Soldiers' Careers) according to
  which women may enlist only as volunteers and
  only in the medical and military-music services

7
Tanja Kreil

• A German trained electronics installer who had
  finished her training at Siemens wanted to join
  the Bundeswehr
• applied in 1996 for voluntary service in the
  Bundeswehr (requested duties in the weapon
  electronics maintenance branch)
• She was told, that generally the chances to be
  hired were really good however, her application
  was rejected by the Bundeswehr's recruitment
  centre and then by its head staff office with
  regard to the mentioned provision of the German
  Basic Law
• Kreil even wrote to the German minister of
  defense, Rühe, being told that there was no
  chance at all
• Kreil felt discriminated against since her
  application to the Bundeswehr was rejected not
  because of her qualifications, but because of her
  gender

8
Legal Proceedings

• Kreil decided to bring an action against the
  Bundeswehr in the Verwaltungsgericht
  (Administrative Court) Hannover
• rejection of her application on grounds based
  solely on her sex was contrary to Community law
• Kreil invoked the Council Directive 79/7/EEC of
  19 December 1978 on the progressive
  implementation of the principle of equal
  treatment for men and women in matters of social
  security (equal treatment directive)? gender-
  related justification should be illegitimate
  accordingly
• German provision would constitute a direct
  discrimination contrary to the Directive
• under Community law, a law or a regulation may
  not prohibit a woman from access to the
  occupation which she wishes to pursue

9
Council Directive 76/207/EEC

• Article 2(1), (2) and (3) of the Directive
  provides
• 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.'

10
The German Government

• considered that Community law did not preclude
  the provisions of the SG and SLV in question? in
  accordance with the German constitutional rule
  prohibiting women from performing armed service
• Community law did not in principle govern matters
  of defence
• form part of the field of common foreign and
  security policy
• remain within the Member States' sphere of
  sovereignty
• Even if the Directive could apply to the armed
  forces, the national provisions in question,
  which limit access for women to certain posts in
  the Bundeswehr, are justifiable under Article
  2(2) and (3) of the Directive

11
The Verwaltungsgericht

• realised the explosiveness of this case
• Considering that the case required an
  interpretation of the Directive, the
  Verwaltungsgericht Hannover decided to stay the
  proceedings and to refer the following question
  to the Court for a preliminary ruling in 1998
• Is Council Directive 76/207/EEC of 9 February
  1976, in particular Article 2(2) of that
  directive, infringed by the third sentence of
  Article 1(2) of the Soldatengesetz (Law on
  Soldiers) and Article 3a of the
  Soldatenlaufbahnverordnung (Regulations on
  Soldiers' Careers under which women who enlist as
  volunteers may be engaged only in the medical and
  military-music services and are excluded in any
  event from armed service?

12
Proceedings before the ECJ

• The Italian and UK Governments presented oral
  arguments in the main proceedings
• Argued that the decisions concerning the
  organisation and combat capacity of the armed
  forces would not fall within the scope of the
  Treaty
• Commission considered the Directive applied to
  employment in the armed forces as it was
  applicable to employment in the public service
• Article 2(3) of the Directive cannot justify
  greater protection for women against risks to
  which men and women are equally exposed

13
The ECJs ruling (Jan 2000)

• The Court observed that it is for the MS, 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
• As the principle of equal treatment for men and
  women is of general application and the Directive
  applies to employment in the public service
• ? it follows that the Directive is applicable in
  a situation such as that in question in the main
  proceedings

14
The ECJs ruling (Cont.)

• Under Article 2(2) of the Directive, MS 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
• BUT that provision must be interpreted strictly
  as it allows a derogation from an individual
  right laid down by the Directive
• To determine the scope of any possible derogation
  from a fundamental right such as the equal
  treatment of men and women, the principle of
  proportionality must be taken into consideration
• derogations must remain within the limits of what
  is appropriate and necessary in order to achieve
  the aim in view of the Directive

15
The ECJs ruling (Cont.)

• However, national authorities do have a certain
  degree of discretion when adopting measures which
  they consider to be necessary in order to
  guarantee public security
• the question is therefore whether the measures
  taken by the German authorities do in fact have
  the purpose of guaranteeing public security and
  whether they are appropriate and necessary to
  achieve that aim
• the refusal to engage the applicant in the main
  proceedings in the service of the Bundeswehr in
  which she wished to be employed was based on
  provisions of German law which bar women outright
  from military posts involving the use of arms and
  which allow women access only to the medical and
  military-music services

16
The ECJs ruling (Cont.)

• such an exclusion, which applies to almost all
  military posts in the Bundeswehr, cannot be
  regarded as a derogating measure justified by the
  Directive as those derogations provided for in
  Article 2(2) of the Directive can apply only to
  specific activities
• With adopting the general position that the
  composition of all armed units in the Bundeswehr
  had to remain exclusively male, the German
  authorities contravened the principle of
  proportionality
• Therefore, the ECJ concluded that the Directive
  precludes the application of national provisions
  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

17
Development in Germany

• Following the ruling, the German government had
  to change the country's Grundgesetz
• In 2001 the first female volunteers joined, they
  can serve in all functions of service without
  restriction
• women are not subject to conscription, compulsory
  military service for women is still prohibited by
  law
• Today, women make up 6 percent of Bundeswehr
  soldiers, they take part in all duties including
  peacekeeping missions and other operations
• However, Kreil didn't join the armed forces after
  winning the lawsuit, she works as a service
  technician at Siemens now