Kreil decision

With the Kreil decision , the European Court of Justice (ECJ) created the legal requirement on January 11, 2000 for women to be and continue to be employed in the Federal Republic of Germany for active military service in the Bundeswehr . Previously, they were only allowed to work in medical and military music services. The prerequisite was the voluntary commitment.

Facts and subject of dispute

Tanja Kreil

The German electronics engineer Tanja Kreil from Hannover competed in 1996 after her training at Siemens AG as Energieelektronikerin to a position in the army as Waffenelektronikerin. Her application was rejected by the responsible district military replacement office and by the Center for Recruiting North with reference to Article 12a, Paragraph 4 of the Basic Law , according to which women are not allowed to use weapons. At that time, women were only allowed in the military music service (since 1991) and in the medical service (since 1975). She then filed a lawsuit with the Hanover Administrative Court ("Tanja Kreil. V. Federal Republic of Germany"). Among other things, she referred to EC Directive 79/7 / EEC of 19 December 1978 for the gradual implementation of the principle of equal treatment for men and women in the area of social security.

The administrative court saw in the German legal situation a possible contradiction to the EC Directive 76/207 / EEC (Second Equal Treatment Directive) of February 9, 1976, which forbids discrimination on the basis of gender in access to employment. The administrative court then stayed the proceedings in 1998 in order to refer the case to the European Court of Justice for a preliminary ruling .

Legal situation (at national and European level)

In the following, those national and European legal provisions are listed which were of importance in the course of the Kreil decision and which influenced the final judgment by the ECJ.

Art. 3 GG

Art. 3 GG [equality before the law]:

(1) All people are equal before the law.

(2) Men and women have equal rights. [...]

(3) Nobody may be disadvantaged or preferred because of their sex, their origin, their race, their language, their homeland and origin, their beliefs, their religious or political views. [...]

Art. 12 a GG

Art. 12a GG [service obligations]:

(1) Men from the age of 18 can be obliged to serve in the armed forces, in the Federal Border Guard or in a civil defense association.

(2) - (3) [...]

(4) If, in the case of defense, the need for civilian services in civilian medical and medical services as well as in the permanent military hospital organization cannot be covered on a voluntary basis, women from the age of 18 to 55 can be provided by law or on the basis of a statute be used for such services. Under no circumstances may you perform service with a weapon.

Soldier Laws

Section 1 (2) sentence 3 Soldiers Act :

Women can be appointed as professional or temporary soldiers for medical and military music service purposes. The prerequisite is a voluntary commitment.

§§ 3a, 5 Abs. 3 Clause 1 Soldiers Career Ordinance :

The recruitment and change of women into the service career, which in particular include the service with the weapon, are excluded.

Directive

Directive 76/207 / EEC (Second Equal Treatment Directive):

Extract from the preamble :

The equal treatment of male and female workers is one of the aims of the community, in so far as it is particularly a question of promoting the equalization of living and working conditions of workers on the way of progress.

Art. 2 :

(1) The principle of equal treatment within the meaning of the following provisions means that no direct or indirect discrimination on the basis of gender - in particular with reference to marital or family status - may take place.

(2) This Directive shall not preclude the Member States from being entitled to exclude from its scope such professional activities and, if applicable, the training required for them, which is an indispensable requirement for the sex due to their nature or the conditions of their training.

(3) This Directive does not conflict with the provisions on the protection of women, in particular during pregnancy and maternity.

In the preliminary ruling procedure it had to be clarified in the end whether the basic legal regulations of the Soldiers Act and the Soldiers Career Ordinance violated Directive 76/207 / EEC. In addition, it had to be finally clarified whether such an exclusion of women is to be justified with Article 2 paragraph 2 of the Equal Treatment Directive, or whether the exclusion can be regarded as no longer appropriate. In addition, according to Article 9 (2) of the Equal Treatment Directive, it is incumbent on the Member States to check at regular intervals whether it is justified to maintain the exemptions under Article 2 (2) (i.e. the exclusion of women from working with weapons). This had to be taken into account in the decision by the ECJ.

The decision of the ECJ

On January 11, 2000, the European Court of Justice ruled, in response to the administrative court's question, that women should also be admitted to the armed forces in the armed forces. The judgment found that Article 12a (4) of the Basic Law, according to which women are fundamentally prohibited from working with weapons, violates the EU directive on professional equality between men and women. Exceptions to this equality are only possible if gender is an indispensable requirement for access to special combat units. The ECJ thus found that the exclusion of women from working with guns could not be justified by Article 2 (2) of the Equal Treatment Directive. In addition, the ECJ justified its decision with regard to the question of competence by stating that it was up to the member states to take appropriate measures to guarantee internal and external security and to issue decisions about the organization of their armed forces, but therefore such decisions do not fully depend on the application of the Community law and thus the Equal Treatment Directive 76/207 / EEC is withdrawn. With this stipulation, the proceedings were referred back to the 2nd Chamber of the Administrative Court in Hanover. The Federal Chairman of the German Armed Forces Association , Colonel Bernhard Gertz , responded to the judgment with the following statement:

“This was about the removal of an occupational ban. Ms. Kreil wrote legal history with this judgment. This gives a new impetus for the realization of equal rights for women in Germany. "

Consequences of the judgment

The Art. 12a para. 4 sentence 2 of the Basic Law was amended by Law of 19 December 2000. The paragraph that women “under no circumstances may serve with a weapon” now reads: “Under no circumstances may women be obliged to serve with a weapon”. With this amendment to the Basic Law and other statutory provisions, the Bundestag has legally reorganized the voluntary service of women with weapons. The existing restrictions on uses in medical and military music service have been lifted. This allowed women to apply for service in the German armed forces on a voluntary basis as professional or temporary soldiers.

The Tanja Kreil case against the Federal Republic of Germany received a great deal of attention from the German public. It was discussed extensively and controversially in the national press. The CDU and CSU criticized the judgment of the European Court of Justice. The then Prime Minister Edmund Stoiber (CSU) polemicized:

"In the near future, the gender equality directive will force the next Federal Chancellor to be a woman."

The German Federal Government also took the position that Community law did not in principle apply to questions of national defense that remained in the sovereignty of the member states. Furthermore, the Italian government and the United Kingdom government also used the same reasoning and referred to Article 224 of the EC Treaty (now Article 279 EC). The European Court of Justice was also increasingly accused of inadmissibly expanding the scope of Community law.

Rupert Scholz (CDU, constitutional lawyer, chairman of the legal committee of the German Bundestag and former Federal Minister of Defense ) stated with regard to this issue that the ECJ was simply not responsible for legal questions of national military law and national defense, and spoke of a conflict between the Basic Law and European Community law as true fundamental, fundamentally constitutional. So he questioned the competences of the European Union in areas of national security.

The first 244 women began their service as soldiers in the army in January 2001. In 2010, 16,900 women soldiers served in the Bundeswehr, 2,600 of them women officers. Overall, they made up (as of January 2010) around 9% of professional and temporary soldiers. At the beginning of 2014 the proportion of women soldiers was a good 10%; The Bundeswehr is striving to increase the proportion of women in service to around 15% in the long term.

Tanja Kreil herself had meanwhile started with a civilian employer and no longer switched to the armed forces.

literature

Sybille Hannelore Koch: Military Policy in the "Year of the Woman". The opening of the Bundeswehr to female medical officers and their consequences . Technical University Carolo-Wilhelmina in Braunschweig, Braunschweig 2007, DNB 988725916 , urn : nbn: de: gbv: 084-18365 (dissertation).

Uta Hühn: The weapons of women. The Kreil case - another cause of conflict between European and German jurisdiction? (= Basel writings on European integration . No. 51 ). European Institute of the University of Basel, Basel 2000, DNB 960447520 .