Sisters in Arms: European Community Law and Sex Equality in the Armed Forces

• DOI: http://doi.org/10.1046/j.1468-0386.2003.00196.x
• Published date: 01 December 2003
• Date: 01 December 2003

Sisters in Arms:

European Community Law and Sex

Equality in the Armed Forces

Martin Trybus*

Abstract: Recently the European Court of Justice has been shedding a new light on the

limits of Community competence for defence. This article analyses the rulings in Sirdar,

Kreil, and Dory with regards to two interrelated issues. First it discusses the effect of

Community law on the equality of men and women in the armed forces of the Member

States. Second, it deals with the impact of these decisions on the constitutional order of

the European Union. The article argues that Community law has a considerable impact

on defence-related national law. Therefore the analysis ultimately contributes to a narrow

aspect of the constitutional debate: the demarcation of competencies between the Member

States and the Community in matters related to defence.

I Introduction

Thousands of women enlist in the armed forces of the Member States every year.1For

decades they have been working in uniform: as nurses, musicians, and cooks. Female

tank drivers, bomber pilots, and submarine commanders are a more recent phenome-

non. Generally there is a Community-wide tendency to open more and more military

European Law Journal, Vol.9, No. 5, December 2003, pp. 631–658.

© Blackwell Publishing Ltd. 2003, 9600 Garsington Road, Oxford OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

* Lecturer in Law, School of Law, University of Nottingham, Nottingham NG7 2RD, England, e-mail:

Martin.Trybus@nottingham.ac.uk. Currently visiting scholar, George Washington University Law

School, Washington DC, USA. Earlier versions of this paper were presented at the Annual Conference

of the (United Kingdom) Socio-Legal Studies Association (SLSA) in Aberystwyth (Wales), 5 April 2002

and the Biannual Conference of the European Union Studies Association (EUSA) in Nashville, Ten-

nessee (USA), 29 March 2003. Thanks to Tamara Hervey, Sue Arrowsmith, and Thérèse Murphy (all

Nottingham), George Bermann (Columbia University) and Nanette Neuwahl (University of Montreal)

for comments on this article or parts of it. Any mistakes, however, are within the responsibility of the

author.

1According to 2001 figures 3,190 women (7.7%) serve in the Belgian armed forces,862 (5%) in the Danish

armed forces, 6,300 (3.4%) in the German armed forces, 6,155 (3.75%) in the Greek armed forces, 438

(0.1%) in the Italian armed forces, 22 in the Luxembourg armed forces (overall strength 770), 4,170 (8%)

in the Dutch armed forces, 2,875 (6.6%) in the Portuguese armed forces and 9,983 (8.2%) in the Spanish

armed forces.8.55% of the French armed forces are women.These figures fall short of the United States

where 200,000 women (14%) serve in the armed forces and 90% of career fields are open to them. Source:

website of the Committee on women in NATO forces: .nato.int/ims/2001/win/>.

occupations to females. This tendency in the military is part of a wider tendency

towards the emancipation of women in society. However, the armed forces are still the

strongest bastions of male dominance. Women remain excluded from several areas of

frontline activity. Moreover, they are not subject to conscription. The degree of exclu-

sion varies considerably from Member State to Member State.2Choices on access of

women to the defence sector affect the composition of the armed forces and are there-

fore perceived as an important aspect of national defence. Member States try to justify

the total or partial exclusion of women with the argument that choices of defence policy

were outside Community competence. More sophisticated arguments say that their

presence in the forces compromised combat effectiveness. Safeguarding combat effec-

tiveness was necessary to ensure national security and justified derogation from the EC

Treaty and secondary Community law.

The Treaty was created after an unsuccessful attempt to establish a supranational

European Defence Community. Reasons for this failure included Member State con-

cerns about their sovereignty.3The European Community was widely understood as a

commercial enterprise excluding any notion of a common defence. The Member States

are the guardians of their national security. The Common Foreign and Security Policy

and the European Security and Defence Policy were introduced through a second, inter-

governmental pillar of the Treaty on European Union (TEU). Here the principles of

supremacy of Community law and direct effect do not apply.

EU defence law can be understood as a narrow second-pillar notion. The basic

assumption of this article, however, understands it as a wider concept comprising of

all common rules that relate to the defence of the Union and her Member States. This

includes the second pillar. In addition it includes all rules that govern the commercial

aspects of defence, such as the procurement and trade in arms and dual use goods.4

Finally it covers all those social rules created by the institutions of the Community that

have a direct impact on the armed forces. This includes EC legislation on sex equality.5

Many of these aspects are regulated within the first, supranational pillar of the TEU

that is characterised by the principles of supremacy and direct effect.

The regulation of defence aspects through Community legislation raises a constitu-

tional problem: the demarcation between the competencies of the Community and that

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632 © Blackwell Publishing Ltd. 2003

2The percentage can be as high as 8.55% as in France and as low as 0.1% as in neighbouring Italy, ibid.

3France, Italy, Germany, Belgium the Netherlands and Luxembourg had signed the European Defence

Community Treaty (EDC) by 1954. All but France and Italy had also ratified the Treaty when a coali-

tion of communists and Gaulists prevented ratification in the French parliament in August 1954.Article

1 EDC would have established the supranational character of the Community comprising common insti-

tutions, common armed forces and a common budget.The supranational character of the EDC was the

most controversial aspect of the project and ultimately the reason for the rejection in the Assemblée

Nationale.Another controversial point was the executive organ of the EDC, the Board of Commis-

sioners. On a more detailed account of the reasons for the rejection by the Assembly see: R. Aron and

D. Lerner, La querelle de la CED (Librarie Armand Colin, 1956), the English edition is: France Defeats

EDC (Frederick A. Praeger Inc., 1957). See also E. Fursdon, The European Defence Community: A

History (The Macmillan Press, 1980) chapter 7:‘Prelude to failure’, at 227–265 and chapter 8: ‘La ronde

est complète’, at 266–299.

4Material that can be used for both military and civil purposes, for example transport aircraft or tents.

See Art 2(a) Council-Regulation 3391/94/EC [1994] OJ L-367/1.

5Other instruments of EC employment law also apply to the armed forces.A very instructive analysis in

relation to pregnancy and the United Kingdom armed forces is provided by A. Arnull, ‘EC Law and the

Dismissal of Pregnant Servicewomen’, (1995) 24 Industrial Law Journal 215–234.