Ex Articles 2 (2 and 3) of Council Directive 76/207/EEC of 9 February 1976 established that “This Directive shall be without prejudice to the right of Member States to exclude from its field of application those occupational activities and, where appropriate, the training leading to that, for which, because of their nature or the context in which they are carried out, the sex of the worker constitutes a determining factor.
This Directive shall be without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity”.
Now, Article 14 of Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation provides that “There shall be no direct or indirect discrimination on grounds of sex in the public or private sectors, including public bodies, in relation to conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion; access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience; employment and working conditions, including dismissals, as well as pay as provided for in Article 141 of the Treaty; membership of, and involvement in, an organisation of workers or employers, or any organisation whose members carry on a particular profession, including the benefits provided for by such organisations.
Member States may provide, as regards access to employment including the training leading to that, that a difference of treatment which is based on a characteristic related to sex shall not constitute discrimination where, because of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that its objective is legitimate and the requirement is proportionate”.
Article 17(1) of the same Directive provides that “Member States shall ensure that, after possible recourse to other competent authorities including where they deem it appropriate conciliation procedures, judicial procedures for the enforcement of obligations under this Directive are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them, even after the relationship in which the discrimination is alleged to have occurred has ended”.
The principle of adequate judicial protection is a general principle of EU law stemming from the constitutional traditions common to the Member States.
In this historical case law concerned the principle of equal treatment between men and women, the European Court of Justice found that the principles on which the European Convention for the protection of Human Rights must be considered in Community law. The ECJ also found that “all persons have the right to obtain an effective remedy in a competent Court against measures which they consider to be contrary to the principle of equal treatment for men and women” and that it was “for the Member States to ensure effective judicial control as regards compliance with the applicable provisions of Community law and of national legislation intended to give effect to the rights for which the Directive provides.
In this case, a law concerning sex discrimination and genuine occupational requirements, Mrs Johnston applied for the Chief Constable of the Royal Ulster Constabulary’s decision not to renew her contract and give her training in the handling of firearms as a uniformed police officer due to the Chief Constable’s choice to ban all women in the Royal Ulster constabulary from carrying firearms or train in them in order to protect them from risks because they may be more frequent assassination targets.
The Chief Constable claimed that the decision was to safeguard national security and protect public safety and public order.
The National Court in order to give a judgement in the main proceeding, referred some questions to the European Court of Justice in a preliminary ruling, interpreting Articles 6, 2 (2), 2 (3), 3 (2-c) and 6 of Council Directive 76/207 and Article 224 of the EEC Treaty.
The National Court asked if a Member State can exclude from the Directive’s field of application acts of sex discrimination as regards access to employment done to safeguard national security or of protecting public safety or public order and if the sex of the worker constitutes a determining factor, within the meaning of Article 2 (2), and in this case what are the criteria or principles that the Member State can claim?
They, moreover, asked if the applicant can rely upon the principle of equality before the National Courts.
The ECJ clarified that Article 6 of Directive 76/207, which permits to all persons who consider themselves wronged by discrimination between men and women to have an effective judicial remedy and rely upon by individuals as against a Member State which has not ensured that it is fully implemented in its internal legal order. So, The national legislation that attributes to a certificate the value of irrefutable proof of the conditions for derogating from the principle of equal treatment between men and women violates the principle of effectiveness of judicial protection.
The ECJ also assured that any discrimination based on sex and carried out for reasons relating to the protection of public security must be examined in the light of the exceptions to the principle of equal treatment for men and women contemplated by Directive 76/207.
The total exclusion of women from working as police officers due to a risk of a general nature linked to that activity and not a risk specific to women for reasons of public security does not fall within the scope of the derogations provided for by the Directive for the protection of the woman.