Суд Европейских сообществ
11 января 2000 года
№ C-285/98
Facts
The Court was asked to deliver a preliminary ruling on the interpretation of Council Directive 76/207/EEC. The question has been raised in proceedings between Tanja Kreil and the Bundesrepublik Deutschland concerning the refusal to engage her in the maintenance (weapon electronics) branch of the Bundeswehr.
Complaint
The applicant claimed that the rejection of her application on grounds based solely on her sex was contrary to Community law.
Court’s ruling
The Court noted that 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. Accordingly, such measures are subject to Directive 76/207.
When, in the case of the organisation of the armed forces in Germany, the competent national authorities avail themselves of the option open to them under the Directive to exclude from the scope 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 position that the composition of all armed units in the Bundeswehr must remain exclusively male. Since the derogations can apply only to specific activities, 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.
As regards the possible application 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.