In Germany, military service is compulsory only for men. Mr Dory, who is at the age where he is liable for compulsory military service, lodged an application for exemption from military service with the Kreiswehrersatzamt (the district recruiting office) competent for his conscription. Relying primarily on the judgment of the Court of Justice in Kreil ¹, he argued that the German Wehrpflichtgesetz (Law on compulsory military service) infringed Community law. He claimed that, following Kreil, there were no longer any objective reasons for excluding women from compulsory military service on gender-specific grounds. Since then, women have had the right to perform service involving the use of arms, but not the obligation to perform military service. His application was rejected. Mr Dory appealed to the Verwaltungsgericht Stuttgart (Administrative Court, Stuttgart) which then requested a preliminary ruling from the Court of Justice on whether a national system of compulsory military service restricted only to men infringes Community law. The German court pointed out, inter alia, that compulsory military service necessarily results in men gaining delayed access to employment and vocational training.

Advocate General Stix-Hackl is giving her Opinion today in this case

Opinion of the Advocate General is not binding on the Court. It is the role of the Advocates General, acting with complete independence, to propose to the Court a legal solution to the cases assigned to them.

The Advocate General takes the view that the German system of military service compulsory only for men does not come within the scope of the provisions of Community law on equal treatment.

The Advocate General concludes, first, that the German system of compulsory military service is a core element of the national provisions for ensuring the external security of the Federal Republic of Germany.

That does not however necessarily mean that the question of compulsory military service and its specific form are completely removed from the scope of Community law. As a core element of national policy on external security, the organisation of military forces as such falls within the exclusive competence of the Member States. That does not mean, however, that the practical implementation of the national measures adopted in that context is not subject to review in respect of its effects on other legal interests which enjoy Community law protection. The Advocate General accordingly considers that national measures which produce effects in fields governed by Community law must be subject to review for compatibility with _ higher ranking _ Community law. In this case, the national law in question must comply with the Community law principle of equal treatment of men and women.

The Advocate General reaches the conclusion that the provisions of the EC Treaty relevant to the principle of equal treatment (Articles 3(2), 13 and 141) do not preclude a national system of military service compulsory only for men.

The Advocate General further examines whether a national system of compulsory military service, or its effects, comes within the scope 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 (the equal treatment directive). Mr Dory claims that compulsory military service affects men's access to the civilian labour market. The Advocate General does not doubt that men _ unlike women _ do not have access to the labour market during their military service, and that after its completion, such access has been delayed. Since that raises gender-specific issues of access to the civilian labour market, the matter in principle comes within the material scope of the directive.

However, the temporarily prevented and subsequently delayed access by men to the civilian labour market, complained of by the applicant, does not form the content or the subject- matter of the German law on compulsory military service, but is rather its effect. That law does not therefore regulate access to employment, but is a national measure which merely affects access to employment.

That raises the question whether national measures which thus result or could result in differences in access to employment fall within the scope of the directive. The Advocate General considers, on that point, that the material scope of Directive 76/207 must be interpreted narrowly. A review of the case-law of the Court of Justice shows that national measures which result or could result in a restriction of access to employment, but whose subject-matter is not the imposition of such a restriction are outside the scope of the directive. Similar inferences may also be drawn from the directive itself.

In the Advocate General's view, the material scope of the equal treatment directive is thus limited to national measures whose “subject-matter” is the regulation of working conditions, access to employment or vocational training.

Since 1997, The EC Treaty has required the European Community, inter alia, in its social policy, to “aim to eliminate inequalities, and to promote equality, between men and women” (Article 3(2)). The Advocate General raises the consideration that the Court is also required to comply with that provision in the interpretation of Community law. In the case in question, however, this would not result in any other interpretation of the directive.

Since, in light of all the foregoing, compulsory military service only for men does not fall, despite its effects on men's access to the civilian labour market, within the scope of Directive 76/207, the Advocate General considers that there is no need for any further review of its compatibility with the directive, in respect of the existence of, or possible justification for, any discrimination.

Note: The Judges of the Court of Justice of the EC now begin their deliberation in this case. The judgment will be delivered at a later date.

Unofficial document for media use only; not binding on the Court of Justice. Available in English, Finnish, French, German, Greek and Italian, Portuguese and Spanish For the full text of the Opinion, please consult our Internet page www.curia.eu.int  at approximately 3pm today. For further information, please contact Isabelle Guibal: Tel: (00 352) 4303 3355; Fax: (00 352) 4303 2731. Pictures of the hearing are available on "Europe by Satellite" European Commission, Press and Information Service, L-2920 Luxembourg Tel: (00 352) 4301 35177; Fax: (00 352) 4301 35249, or B-1049 Brussels, Tel: (00 32) 2 2964106, Fax: (00 32) 2 2965956, or (00 32) 2 301280

1 Judgment of 11 January 2000 in Case C-285/98 (see Press Release No 1/2000)