Tanja Kreil v. Bundesrepublik Deutschland, Case C-285/98, CJEU, 11 January 2000

Equal treatment for men and women. Limitation of access by women to military posts in the armed forces.

Council Directive 76/207/EEC 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

1. In determining the scope of any derogation from a fundamental right such as the equal treatment of men and women, the principle of proportionality, which is one of the general principles of Community law, must also be observed.

2. The principle of proportionality requires that derogations remain within the limits of what is appropriate and necessary in order to achieve the aim pursued and requires the principle of equal treatment to be reconciled as far as possible with the requirements of public security.

3. The total exclusion of women from all military posts involving the use of arms is not one of the differences of treatment allowed by the Directive 76/207/EEC in order to protect women and, especially, their biological condition and the relationship with their children.

(In the present case, the application of a German citizen for voluntary service in the armed forces was rejected on the ground that women may be engaged only in the medical and military-music services, under a constitutional principle which prevents women from serving in military positions involving the use of arms. According to the Court, even taking into account the margin of discretion that they enjoy, the national authorities contravened the principle of proportionality by adopting the general position that the composition of all armed forces had to remain exclusively male).

The case at hand brought before the Court of Justice a conflict between a provision of the German Constitution (art. 12 of the Grundgesetz, according to which compulsory military service could only be imposed on men) and a fundamental principle of Community law (prohibition of discrimination on grounds of sex). Following the judgment issued by the Luxembourg Court, Germany revised the text of art. 12 of the Grundgesetz.