European Union: Compulsory military service

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Angelina Andra Hall
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1 DEVELOPMENTS 673 present transitional system may help pave the way, and the relatively smooth inception of the transition itself is promising. If it is true that efficient and disinterested government, however badly needed, is not to be expected from the transitional system, one must bear in mind that disinterestedness was not available this time around, just as genuine popular representation would not have been a realistic aspiration. The central tasks were, and still are, to end the war and lock the parties into a process of peaceful transition. Because the parties appear to be playing by the rules, the negotiators and drafters may be said to have done a fine job in balancing all the interests. So far, so good. In the medium term, matters will depend on the development of the political vested interests, that is to say, on whether all parties, including the foreign backers of the rebels, continue to perceive that they have more to lose than to gain from reverting to war. Toward the end of the transition period, if the process progresses that far, greater challenges may be anticipated. Should a truly democratic system be put into place, elections will maintain some in office and eject others from the central government. Those who foresee losing their spoils, gained throughout the process, may find it more appealing to ruin the process than to abide by democratic rules. As it is essential to keep all the major parties locked into this process, a federal system that provides for regional, independently elected governments may be better suited to the DRC than a unitary decentralized system. The federal option would mean that those who did not make it into central government could still wield power in regional governments. Clearly, a transitional constitution cannot resolve the underlying political conflict; the best it can do is mitigate the strife and steer the political exercise toward a peaceful resolution. By these standards, the DRC s Transitional Constitution is admirable, and its principles may serve as a model for other conflict-ridden African nations. European Union: Compulsory military service Beate Rudolf* European Community treaty compulsory military service and scope of Community law equality of men and women Alexander Dory v. Federal Republic of Germany 1 In a long-awaited decision, the European Court of Justice (ECJ) held that European Community law is inapplicable to compulsory military service doi: /icon/moi045 * Junior professor, Free University of Berlin, Faculty of Law; brudolf@zedat.fu-berlin.de 1 Case C-186/01, Alexander Dory v. Federal Republic of Germany, [2003] E.C.R. I-2508 (decided Mar. 11, 2003).

2 674 DEVELOPMENTS and that, consequently, member states were free to restrict the draft to men. Thus, the Court stopped short of extending its control to a core question of national defense a development that some member states 2 and a number of commentators 3 had feared after the two landmark decisions in which the Court decided that member states had to open the military profession to men and women alike. 4 The case originated in a procedure before a German administrative tribunal, which had to decide whether drafting the applicant, Alexander Dory, was compatible with the principle of equal treatment of the sexes under Community law. The tribunal considered that, as a consequence of compulsory military service, male draftees enter the workforce later than women and wondered whether this might be in violation of the EC treaty 5 the Equal Treatment Directive, 6 or whether this difference in treatment might be justified. Consequently, it asked the ECJ for a preliminary ruling pursuant to article 234 EC. In its decision, the ECJ began by rejecting the submission of the German government, which asserted that the organization of the armed forces still remains within the member states exclusive powers and thus falls entirely outside the scope of Community law. As in prior cases, the Court found that such a general exception excluding all measures taken for reasons of public security from the scope of Community law would run counter to the binding nature of Community law and its uniform application. 7 It upheld its earlier case law according to which the principle of equal treatment of men and 2 France and Finland, for example, both submitted observations in the Dory proceedings for this reason. 3 See, e.g., Volkmar Götz, Anmerkung: Zugang für Frauen zum Dienst in bewaffneten Einheiten [Note: Women s Entry to the Armed Services], 55 JURISTENZEITUNG 413, 415 (2000); Jörn Axel Kämmerer, Gleichberechtigung am Gewehr [Equal Rights at the Rifle], 35 EUROPARECHT 102, 118 (2000); Rudolf Streinz, Frauen an die Front [Women to the Front], 115 DEUTSCHES VERWALTUNGSBLATT 585, 594 (2000); Manfred Zuleeg, Fällt die Wehrpflicht in Deutschland durch Richterspruch? [Court Decision Topples Military Service in Germany?], 13 EUROPÄISCHE ZEITSCHRIFT FÜR WIRTSCHAFTSRECHT 545, 545 (2002). 4 Cases C-273/97, Angela Maria Sirdar v. The Army Board and Secretary of State for Defence, [1999] E.C.R. I-7403, and C-285/98 Tanja Kreil v. Federal Republic of Germany, [2000] ECR I-69 (hereinafter Sirdar and Kreil, respectively). 5 TREATY ESTABLISHING THE EUROPEAN COMMUNITY, Nov. 10, 1997, O.J. (C 340) 3 (1997), as amended by TREATY OF NICE, Mar. 10, 2001, O.J. (C 80) 1 (2001) (hereinafter EC). 6 Council Directive 76/207/EEC, 1976 O.J. (L 39) 40 (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); article 3(1), in its relevant parts, provides: Application of the principle of equal treatment means that there shall be no discrimination whatsoever on grounds of sex in the conditions (...) for access to all jobs or posts, whatever the sector or branch of activity (...). 7 Dory, para. 31, citing Sirdar, para. 16, and Kreil, para. 16.

3 DEVELOPMENTS 675 women is a social principle of general application and, thus, it applies, as well, to employment in the public sector. 8 The Court concluded that decisions of the Member States concerning the organisation of their armed forces cannot be completely excluded from the application of Community law, particularly where observance of the principle of equal treatment of men and women in connection with employment, including access to military posts, is concerned. 9 The Court then narrowed this seemingly broad holding by stating that this finding, nevertheless, did not warrant the conclusion that Community law governs the Member States choices of military organisation for the defence of their territory or of their essential interests. 10 However, it did not clarify precisely how this new phraseology differs, in meaning, from the organisation of their armed forces, which the Court considered as falling under Community law. The ECJ continued by simply repeating the reasons given by the German government in favor of compulsory military service and found that the choice of military organization takes precedence over the objectives of policies aimed at the work prospects of young people. 11 In its view, the fact that persons called up for military service would suffer a delay in their professional careers is an inevitable consequence of the choice made by the Member State and, therefore, is not sufficient to bring the matter within the reach of Community law. 12 The judgment is remarkable for a number of reasons: first, the Court upheld its case law concerning the applicability of Community law to employment in any kind of public service, including the military. Yet it did so at the price of clarity. There is no discernible difference between the member states decisions concerning the organisation of their armed forces, which are governed by Community law, and their choices of military organisation for the defence of their territory or of their essential interests, which are not. Should the Court have intended to exempt only the choice between a professional army and compulsory military service, 13 its reasoning would be circular. 14 What the Court had in mind, perhaps, when using the latter formula, are such basic decisions as are fundamental for a nation s 8 Dory, para Dory, para. 35 (emphasis added). 10 Id. (emphasis added). 11 Dory, para Dory, para For this view see Georgios Anagnostaras, Sex Equality and Compulsory Military Service, 28EUR. L. REV. 713, 718 (2003). 14 See Jörn Axel Kämmerer, Wehrpflicht und Europarecht ohne Berührungspunkte? [Military Service and European Law Missing Points of Contact?], 38 EUROPARECHT 447, 451 (2003).

4 676 DEVELOPMENTS survival. 15 This might explain why it refers to the German government s emphasis on the great importance of compulsory military service and why it underscores the fact that the service obligation is a component of the German Constitution. 16 An argument against this interpretation is the fact that the Court did not cite article 6(3) of the EU treaty 17 in this context, as the Commission had suggested. 18 This article obliges the Union to respect the member states national identities; the Court could have understood the German government s argument to mean that compulsory military service, which ensures the democratic transparency of the military, is an expression of historic experiences that had shaped the national identity. 19 A second point of ambiguity is that the ECJ does not set out clearly the Community law standards it applied. There is no reference to the EC treaty, and the judgment mentions the Equal Treatment Directive explicitly only in connection with a standard of review that was not applied in the case. 20 Therefore, most commentators understand the Court s reasoning to exclude the choices of military organisation for the defence from the scope of Community law altogether. 21 Others consider it a mere interpretation of the lack of applicability in this case of the Equal Treatment Directive. 22 A closer look at the structure of the judgment, and the case law to which it refers, confirms the validity of the latter understanding. In the decisive paragraphs, the Court examines the conditions for applying that law [i.e., the principle of equal treatment under Community law] to activities relating to the organisation of the armed forces, 23 and it repeats verbatim passages of its case law on the applicability of the Equal Treatment Directive. 15 See also Sascha Dietrich, Europarecht versus Wehrpflicht: Zur Vereinbarkeit einer auf Männer beschränkten Wehrpflicht mit dem europäischen Gemeinschaftsrecht [European Law versus Military Service: The compatibility of a male-only service with European Community law], 118 DIE ÖFFENTLICHE VERWALTUNG 883, 889 (2003). 16 Dory, paras. 37 and TREATY ON EUROPEAN UNION, July 29, 1992, O.J. (C 224) 1 (1992), as amended by TREATY OF NICE, Mar. 10, 2001, O.J. (C 80) 1 (2001). 18 Dory, para For a more detailed explanation see Martin Trybus, Case note on Dory v. Germany, 40COMMON. MKT. L. REV. 1269, 1276 (2003). 20 Dory, para Anagnostaras, supra note 13, at 718; Kämmerer, supra note 14, at ; Trybus, supra note 19, at 1278; Thomas Voland, Frauen doch nicht an die Front?! [Women Nevertheless Not to the Front?!], 56 NEUE JURISTISCHE WOCHENSCHRIFT 1341, 1342 (2003). 22 Uta Hühn, Erneut zum Einfluss des Gemeinschaftsrechts auf die Organisation der nationalen Streitkräfte [The Influence of Community Law on the Organization of NationalArmed Forces], 2003 VERWALTUNGSRUNDSCHAU Dory, para. 29.

5 DEVELOPMENTS 677 However, the Court further complicates an understanding of its reasoning by resorting to two additional arguments. It concedes that Germany s choice of compulsory military service results in many draftees delayed entry into the labor market, but then it simply states that this choice thus takes precedence over the objectives of policies aimed at the work prospects of young people. 24 The rationale for this precedence remains unclear. By making this acrossthe-board statement, the ECJ seemingly contradicts its earlier finding that defense measures are not exempted from Community law simply because of the domain to which they belong. 25 A further source of confusion is that the Court characterizes the draftees delayed access to the labor market as an inevitable consequence of the choice made by the Member State regarding military organisation. 26 This argument seems irrelevant, legally, in view of the Court s prior finding that the member state s choices of military organisation for the defence per se take precedence over employment policies. In a subsequent dictum, the ECJ reveals the true reasons for ignoring the effects of the draft on the draftees access to the employment market, and thus for not applying Community law to compulsory military service. Consider what the consequences would be of a contrary interpretation: if Community law were applicable, this approach would seem to result in forcing member states to choose between extending the service obligation to women or in abolishing compulsory military service altogether. 27 This reasoning leaves out one important step, however. The Equal Treatment Directive prohibits unequal treatment based on gender but only if there is no justification. In the Dory case, further examination would have revealed that Germany had justified only its choice of compulsory military service over that of a professional army, and that it had not given any reason or justification for excluding women from the draft. Even if, as the government had argued, compulsory military service contributed to the democratic transparency of the military, to national integration, to linking the armed forces and the population, and to the mobilization of the manpower needed by the armed forces in the event of a conflict, 28 these factors would not, by themselves, have explained limiting compulsory service to men. Consequently, in the case before it, the ECJ would have had no choice but to find a violation of the Equal Treatment Directive and to oblige Germany to choose 24 Dory, para. 38 (emphasis added). 25 For criticism of this precedence rule, see also Trybus, supra note 19, at , and Sisters in Arms: European Community Law and Sex Equality Law in the Armed Forces, 9 EUR. L.J. 631, (2003). 26 Dory, para Id. 28 See Dory, paras. 23 and 37.

6 678 DEVELOPMENTS between abolishing the draft or extending it to women. Contrary to what the Court implied, the Dory outcome is not caused directly by the applicability of Community law but, rather, by the circumstances of the case. Because of these obscurities, seeming contradictions, and factual considerations, some commentators explain the Court s judgment as motivated primarily by political concerns. 29 Others consider it an expression of respect for the allocation of powers between the EC and its member states. 30 All agree that it is a reaction to the sometimes very harsh criticism of the Court s having acted ultra vires in the cases of Sirdar and Kreil, 31 in which it obliged the UK and Germany to open up their professional military to women, 32 and they see the Court backpedaling so as to restrict the consequences of its prior decisions. Indeed, the judges difficulties in finding a clear-cut delimitation between the powers of the Community and those of the member states stem, at least in part, from earlier decisions. After Sirdar and Kreil, the military sector could no longer claim to be completely outside the scope of EC law. Because of its general applicability, as the Court calls it, the principle of equal treatment is capable of pervading every subject matter, regardless of the allocation of powers between the Community and its members in this area, provided there is a connection to employment. In these two cases, the decisive connection was the professional character of the occupation denied to women. Then, in a further judgment unrelated to defense matters (case of Schnorbus), the Court extended the criterion of connection to employment to cases involving delayed access to the employment market. 33 Therefore, in the Dory case, the Court could not simply decline to treat military service as a form of employment, in the sense given that term by the Equal Treatment Directive, thereby removing it from the purview of the directive, as the Commission had proposed. 34 This finding would not have answered the question of whether the male draftees delayed access to the labor market came within the applicability of Community law. Had the Court followed the Schnorbus reasoning in the Dory case, the decisive question would have become that of whether the unequal treatment of men and women could 29 See, e.g., Dietrich, supra note 15, at 885 and n.24, and Voland, supra note 21, at See, e.g., Anagnostaras, supra note 13, at 720, and Trybus, supra note 19, at Both supra, note See, in particular, Rupert Scholz, Frauen an die Waffe kraft Europarechts? [Women to the Arsenal of European Law?], 53 DIE ÖFFENTLICHE VERWALTUNG 417, 420 (2000); Torsten Stein, Anmerkung zu Rs. C-285/98,11 EUROPÄISCHE ZEITSCHRIFT FÜR WIRTSCHAFTSRECHT 213, 214 (2000). 33 Case C-79/99 (Julia Schnorbus v. Land Hessen), judgment of December 7, 2000, [2000-I] ECJ Dory judgment, supra note, para. 28.

7 DEVELOPMENTS 679 be justified. Such an approach would have necessitated the ECJ s assessing the grounds the German government had relied on to justify its policy. This examination (or test) would have focused on the reasons for Germany s decision in favor of compulsory military service and, thus, on a question that lies well within the member states residual powers. It would have been warranted only by the effect of the discriminatory service obligation, that is, by the male draftees delayed access to the employment market. It seems from this outcome that the Court considered it necessary to curtail the use of its effects criterion. Instead, it drew a line based on a vague distinction between decisions concerning the organisation of the military and choices of military organisation for the defence, thus implicitly rejecting the advocate general s proposal to distinguish between intended and unintended consequences of a national measure. 35 It rightly did so because this distinction is hardly reconcilable with the Court s longstanding case law in other areas, most notably that which pertains to the four fundamental freedoms under the EC treaty. 36 There, the ECJ has long abandoned this distinction so as to ensure the full effectiveness (effet utile) of the provisions in question. 37 Yet the distinction introduced by the Court remains unclear and, consequently, impracticable. It can be explained as a weighing approach: the more the examination of a contested measure centers on decisions that remain within the member states exclusive powers, the less the effects of such a measure suffice to bring it under Community law. Seen from this perspective, the Court did not opt for a restrictive interpretation of the effects criterion simply because of an unwanted outcome in the case before it, but because of a general respect for the member states powers in matters of defense that had to be reconciled with its own preceding case law. 35 See Opinion of the Advocate General Christine Stix-Hackl, of Nov. 28, 2002, 2003-I ECR 2482 (paras. 92 3). 36 Namely, the free movement of goods, persons, services and capital. Cf., e.g., Case 53/76 (Bouhelier), judgment of Feb. 3, 1977, 1977 ECR 197, For more detailed criticism of this approach see Kämmerer, supra note 14, at

JUDGMENT OF THE COURT 11 March 2003 *

JUDGMENT OF 11. 3. 2003 CASE C-186/01 JUDGMENT OF THE COURT 11 March 2003 * In Case C-186/01, REFERENCE to the Court under Article 234 EC by the Verwaltungsgericht Stuttgart (Germany) for a preliminary