Maybe the target nowadays is not to discover what we are, but to refuse what we are […]. The conclusion would be that the political, ethical, social, philosophical problem of our days is not to try to liberate the individual from the state, and from the state's institutions, but to liberate us both from the state and from the type of individualization which is linked to the state. (Emphasis added)

I. Introduction

1.1 Fighting begins…
On 11 March 2003, in Alexander Dory v. Germany , the Court of Justice of the European Communities (hereinafter ECJ) concluded that Community law did not preclude compulsory military service being obliged only to men. More precisely speaking, the alleged Germany male-only conscription policy falls outsides the application scope of the principle of equal treatment of men and women enshrined in Article 141 of the Treaty Establishing the European Community (hereinafter EC Treaty) and the 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 (hereinafter Second Equal Treatment Directive). The issue here can be divided two questions of different perspectives: what is the application scope of Community law and how to apply it in specific areas. Actually, Dory is not the first case that ECJ dealt with the application of Community law and sex equality in the armed forces. In its judgments of Angela Maria Sirdar v. The Army Board and Secretary of State of Defense and Tanja Kreil v. Germany , ECJ first observed that measures taken by Member States in this domain are not excluded in their entirety from application of Community law solely because they are taken in the interests of public security or national defense. Without derogations provided by EC Treaty, ECJ thus held that Second Equal Treatment Directive was applicable to access to posts in the armed forces and that it was for ECJ to verify whether the measures taken by the national authorities exercising their recognized discretion, did in fact have the purpose of guaranteeing public security and whether they were appropriate and necessary to achieve that aim. In Sirdar and Kreil, ECJ therefore held that national laws restricting the access of women to the military profession which reserved to men merely violate the principle of equal treatment in Community law because sex is a determining factor of employment in specific posts.

On the surface, all the three cases are concerned measures taken by Member States in the organization of the armed forces. However, Dory is concerned application of principle of equal treatment in compulsory military service. It is about the equal treatment of obligation. It is distinguished with matters of voluntary military service, the right of access to the military labor market in Sirdar and Kreil. More carefully analyzing of Dory, as in ECJ’s holding, the three cases indeed are not so distinguishable. Dory still concerned about the right of access to labor market since “the limitation of compulsory military service to men will generally entail a delay in the progress of the careers of those concerned.”

This thesis will discuss ECJ’s new case law in Dory decision with regard to two perspectives: the effect of Community law on sex equality in the armed forces of Member States, if ECJ takes it seriously, and the inspiration of gay rights in the military.

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