In Northern Ireland the Sex Discrimination (Northern Ireland) Order 1976 (SI 1976 No 1042 (NI 15)) lays down rules to eliminate sex discrimination and implement the principle of equal treatment for men and women as regards access to employment, vocational training and promotion and working conditions.

By Article 8 (1) (c) of the Sex Discrimination Order it is unlawful to discriminate against a women by refusing or deliberately omitting to offer her employment. By Article 8 (2) (a) it is unlawful for a person, in the case of a woman employed by him, to discriminate against her in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services or by refusing or deliberately omitting to afford her access to them.

Article 10 (1) of the Order provides that the above provisions do not apply to any employment where being a man is a genuine occupational qualification for the job. That is the case, according to Article 10 (2), only where the essential nature of the job calls for a man for reasons of physiology (excluding physical strength or stamina) or, in dramatic performances or other entertainment, for reasons of authenticity, so that the essential nature of the job would be materially different if carried out by a woman.

The police are specifically provided for in the Sex Discrimination Order. Article 19 (1) provides that the holding of the office of constable is to be treated as employment and Article 19 (2) provides that regulations made under the Police Act (Northern Ireland) 1970 are not to treat men and women differently except as regards requirements relating to height, uniform or equipment, or allowances in lieu of uniform or equipment.

Article 53 of the Order provides that nothing in Part III of the Order (which Part includes Article 8) shall render unlawful an act done for the purpose of safeguarding national security or of protecting public safety or public order. Article 53 (2) provides that a certificate signed by the Secretary of State and certifying that an act was done for those purposes shall be conclusive evidence that those conditions are fulfilled.

The Industrial Tribunal's decision to request a preliminary ruling was registered at the Court on 4 September 1984. In accordance with Article 20 of the Protocol on the Statute on the Court of Justice of the EEC, written observations were submitted by the following: Mrs Johnston, represented by Anthony Lester QC and David Smyth, instructed by Murphy, Kerr & Co.; the United Kingdom, represented by Mrs S. J. Hay, acting as Agent, assisted by Anthony Campbell, Senior Crown Counsel, and Richard Plender; and the Commission of the European Communities, represented by Armando Toledano Laredo, Principal Legal Adviser, and Julian Currall, a member of its Legal Department.

After hearing the report of the Judge Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry.

On the first question, Mrs Johnston considers that the aims of safeguarding national security or of protecting public safety or public order may justify a derogation from the fundamental principle of equal treatment only in so far as the derogation is covered by the terms of Article 2 (2) of Directive No 76/207/EEC. Only by reference to particular occupational activities is it possible to ascertain whether, by reason of their nature or the context in which they are carried out, the sex of the worker constitutes a determining factor. A derogation which is general in its scope, rather than being related to particular occupational activities or their nature or the context in which they are carried out, made on the sole ground that the discriminatory measure in question was adopted for the purpose of safeguarding national security or protecting safety or public order, is not covered by that article. Were this not so, a Member State could determine its scope unilaterally without being subject to control by the Community Institutions (judgment of 4 December 1974 in Case 41/74 Van Duyn v Home Office [1974] ECR 1337).

It is not possible to answer the second question in the broad terms in which it is formulated. The question whether fulltime employment as an armed member of a police reserve force is capable of coming within Article 2 (2) of the directive depends upon the particular occupational activity within the general category of the employment in question. Throughout her particular occupational activities Mrs Johnston performed her duties entirely satisfactorily and sex was not a determining factor. The mere fact that the Chief Constable required members of the RUC Reserve to be armed did not alter the nature of her occupational activities nor did it change the context in which they were carried out. It has never been suggested that she was incapable as a woman of being trained in the use of firearms, so it was not a case in which the essential nature of the job calls for a man for reasons of physiology, as required by Article 10 of the Sex Discrimination Order. Employment such as that in question in this case is capable of coming within Article 2 (2) of the directive only in so far as particular occupational activities within the category of employment in question are activities for which the sex of the police officer constitutes a determining factor; this has not been demonstrated by the arguments advanced by the Chief Constable, which are only broad generalizations, and it cannot be accepted in the case of such a broad exclusion as the exclusion of women from the RUC Reserve.

As regards the third question, Mrs Johnston observes that in determining whether the requirements of Article 2 (2) of the directive are satisfied the Member States must bear in mind that the provision must, as an exception to a fundamental human right, be strictly construed. The national courts must be allowed to decide whether those requirements are satisfied and the Member State or the employer must prove that they are satisfied. A Member State may only exclude a particular occupational activity and only by reason of the nature of the activity or the context in which it is carried out. The derogation must be founded on objective reasons. In the circumstances of the present case, the sex of a police officer will only be a determining factor if the nature of the particular activity would be different if carried out by a woman or if the context in which it is carried out makes it essential for it to be done by a man in order to ensure respect for the fundamental right to respect for privacy, for example, in carrying out body searches. The purposes asserted in the Secretary of State's certificate and the reasons given by the Chief Constable are not sufficient for this purpose.

Article 2 (3) of the directive, to which the fourth question refers, on provisions concerning the protection of women, must be strictly construed and the Member State or employer concerned must prove that the conditions for the application of that provision are satisfied. The aim of Article 2 (3) is to ensure that women receive special treatment to protect their health and safety in the case of pregnancy or childbirth; it is not intended to permit women to be discriminated against by excluding them from employment in the guise of protection. It is not even contended by the Chief Constable that the requirements of the provisions of the Sex Discrimination Order concerning the protection of women are satisfied in this case. The fact that the Secretary of State and the Chief Constable relied on a certificate issued under Article 53 of the Order precludes them from asserting other purposes, such as the protection of women, which in any event was never considered before this case was brought. In any case, the blanket exclusion of women from the RUC Reserve and the denial of training in the use of firearms irrespective of the duties performed or of the individual qualities of the particular woman concerned are not proportionately related to the aim aserted. It is not necessary, in order to achieve that aim, to impose a blanket ban; other means, having a less severe impact upon women, for example, training women in the handling and use of firearms and deploying only police officers of either sex who are proficient in the handling and use of firearms on duties requiring such proficiency, could have been used to achieve that aim.

Since the answer to the fourth question must be in the negative, the fifth question does not arise. In the alternative, it is contended that Article 3 (2) (c) must be strictly construed. The Member State or employer concerned must prove that the concern for the protection of women is well founded and that the means employed for the purpose of protecting women are reasonably related to and necessary for that purpose.

As regards the sixth question, which asks whether an individual may rely on the directive in question, Article 53 of the 1976 Sex Discrimination Order is contrary to the clear, complete and precise provision of Article 6 of the directive and cannot therefore preclude Mrs Johnston from relying on the relevant provisions of the directive before the national courts. In the circumstances of this case the Chief Constable and the Secretary of State did not act as private persons but as persons exercising statutory powers or entrusted with public duties and the directive therefore is directly binding upon them. In any event, the relevant provisions of the directive have a horizontal direct effect.

Article 224 of the EEC Treaty, to which the seventh question refers, does not allow the Member States to derogate unilaterally and free from judicial control from any of the obligations and rights arising under the Treaties and in particular the fundamental rights guaranteed by Community law. Article 224 must be strictly construed and can only apply if all its conditions are fulfilled. A Member State has a certain margin of appreciation but not an unlimited power removed from all control by the national courts and by the Court of Justice as regards the requirement relating to the maintenance of law and order and serious internal disturbances. The Member State must also prove that it is adopting the derogating measure for the reasons set out in Article 224 and that the means used are proportionate to and necessary for the aim in view. It should have consulted the other Member States and they must have together taken collective steps. In any event, it is open to an aggrieved individual to rely before a national court upon any failure to comply with the requirements of Article 224 so as to ensure equality of arms and observance of the rule of law when the Member State invokes that article.

With regard to the first question, the United Kingdom considers that Directive No 76/207/EEC is in principle inapplicable to action taken by the Member States for the purpose of safeguarding national security or for protecting public safety or public order and the Member States are free to exclude such matters from the scope of their legislation on equal treatment. That conclusion follows first of all from the principle of interpreting the directive in conformity with the rules of the Treaty and with general principles of law. The EEC Treaty itself leaves intact the power of the Member States to take such measures as they may consider necessary or expedient for the abovementioned purposes, as is shown by the safeguard clauses contained in Articles 36, 48, 56, 66, 223 and 224. It is inconceivable that a directive may be interpreted as restricting that power of the Member States which the EEC Treaty itself leaves intact. The interpretation of the directive in accordance with its objects and general scheme leads to the same result because in order to attain the directive's aims, which, as is clear from the preamble thereto, are to avoid difficulties in the operation of the common market owing to the competitive disadvantages that the elimination of discrimination may entail and to achieve the Community's social aims, it is not necessary to restrict that power of the Member States. In circumstances such as those existing in Northern Ireland, a Member State is therefore entitled, for the purpose of safeguarding national security, public safety or public order, to exclude from its legislation on the implementation of the principle of equal treatment of men and women acts of the kind done by the Chief Constable.

As regards the second question, the United Kingdom observes that the language of Article 2 (2) of the directive specifically directs attention to the context in which an activity is carried out and the suitability of a person of a particular sex for employment may depend on that context as well as on the nature or inherent requirements of the post. Under Article 2 (2) the Member States are to determine the activities which are to be excluded from the directive's field of application and they have a discretion in this regard. In interpreting the directive and determining its field of application the Court and the Member States must therefore take account of the need to reconcile the principle of equal treatment with other conflicting interests. The question of law submitted to the Court in this case, namely whether employment of the kind in question undertaken in the circumstances described by the national court may be an occupational activity for which the sex of the worker is a determining factor, must be answered in \the affirmative, taking into consideration the equally fundamental interests of national security.

The enumeration required by the third question of the principles and criteria by which it should be determined whether the sex of the worker constitutes a determining factor within the meaning of Article 2 (2) of the directive is impossible. The definition of the criteria depends on the nature of the activity and the context in which it is carried out. In order to reconcile the principle of equality of treatment with the demands of national security, public safety or public order, the Member State should determine whether, by reason of the physiological differences between the sexes or by reason of the distinctions customarily drawn between the sexes, it is necessary to treat members of the two sexes differently in respect of the employment or training in question. In this regard differences in physical strength may be taken into account owing to the increased risk of the theft of firearms. It is also legitimate to take into account the probable public reaction if armed policewomen appeared on the streets, if they became targets for assassination or if they had to work with families and children. Those were the criteria applied by the Chief Constable.

With regard to the fourth question, the term provisions concerning the protection of women in Article 2 (3) of the directive gains colour from the expression laws, regulations and administrative provisions in Article 3 (2) (c) and covers the policy which the Chief Constable applies in the exercise of statutory powers. The aim of that policy is to protect women by preventing them from becoming targets for assassination. The breadth of the phrase protection of women is not reduced by the reference to pregnancy and maternity. This is clear from Article 3 (2) (c) because it is unlikely that provisions governing maternity and pregnancy will cease to be inspired by a well-founded concern to protect women. It is not for the Court to determine whether the Chief Constable was justified in applying his policy. He might have legitimately taken into account the physical strength or social and cultural status of women, which, in time of grave emergency, are capable of warranting the adoption of a provision for the protection of women.

It is not possible to enumerate exhaustively the criteria to be taken into aqcount for the purposes of Article 3 (2) (c), as requested by the fifth question. Nevertheless, in interpreting that provision some assistance might be gained by comparing it with Convention No 111 of the International Labour Organization concerning discrimination in the matter of employment and professions (25 June 1958, United Nations Treaty Series, Vol. 362, p. 31), which permits the retention of special measures for the protection of women in specified circumstances (maternity) or at specified times (night) or in specified kinds of employment (underground), even when that employment is also arduous or dangerous for men. It authorizes a State to maintain in force provisions designed to protect women when it is generally recognized by other States or by the population in question that members of that sex require special protection or assistance. Article 8 (4) (b) of the European Social Charter imposes an obligation to prohibit the employment of women workers on work which is unsuitable for them by reason of its dangerous, unhealthy or arduous nature. A Member State may therefore take account, out of concern to protect women, of the existence and nature of a state of emergency, the arduous or dangerous nature of the employment in question and the general recognition that women require special protection or assistance.

With regard to the sixth question, which in its view calls for no answer from the Court, the United Kingdom considers that the relevant provisions of the directive are not sufficiently unconditional and precise to produce direct effect. Article 2 (1) and Article 3 (1), read in the light of the subsequent provisions of the directive and with regard to the circumstances of the present case, are imprecise and conditional provisions since they are subject to the exercise of a Member State's power to exclude certain activities or to revise its existing laws, regulations and administrative provisions in accordance with Article 9 (2) and since the criteria to be applied in the exercise of that power are not articulated in the directive and defy enumeration. In any case, an individual may not rely on those provisions of the directive as against an employer. In the present case, the Chief Constable is constitutionally independent of the State and is involved as an employer who has to decide whether or not to recruit a particular person. The directive does not have direct effect in such relations. To take the opposite view would mean that there would be unwarranted and illogical discrimination between the public and private sectors and between Member States, depending on the distribution of functions between the public and private sectors in the case of similar activities.

As regards Article 224 of the EEC Treaty, referred to in the seventh question, it is for the Member State to determine which measures are to be taken in the event of serious disturbances. The situation in Northern Ireland must clearly be regarded as a serious internal disturbance affecting the maintenance of law and order. The functioning of the common market is not affected by a policy of engaging only men in armed police duties. Furthermore, an individual may not rely on a Member State's failure to consult with other Member States for the purpose of preventing it from relying on Article 224. The remedy which the Treaty makes available for an improper use of Article 224 is set out in Article 225. Article 224 does not confer any rights on individuals enabling them to prevent Member States from exercising their powers under that article.

The Commission observes first of all that the exceptions provided for in Article 2 (2) and (3) of Directive No 76/207/EEC to the prohibition of discriminatory treatment of men and women, which relate to the nature or the context in which occupational activities or training are carried out and to the protection of women, are not relevant in this case. They do not expressly refer to national security or to the maintenance of law and order. However, in Article 224 the EEC Treaty does contemplate such cases and one cannot therefore exclude the possibility that such reasons may justify an exception to the principle of equal treatment either on the basis of the provisions of the directive itself or by reason of Article 224 of the EEC Treaty.

The directive must be interpreted in the light of Article 224 of the EEC Treaty. The Commission is prepared to assume that the situation in Northern Ireland at the relevant time, in 1980, could justify the application of Article 224 on the ground of serious internal disturbances affecting the maintenance of law and order. However, for the reasons set out later, the Commission does not think it necessary to consider whether an individual may rely on the fact that the United Kingdom has never consulted the other Member States on this matter. In view of Article 224 of the EEC Treaty, it is not strictly necessary to examine the exceptions provided for in the directive itself. On this point the Commission observes however that, although no exception relating to national security or the protection of public order or safety is expressly provided for, such considerations may nevertheless mean that certain occupational activities can only be carried out by persons of one sex. The Commission is therefore prepared to assume that the policy decision not to arm women and to reserve certain police activities to armed men in the situation prevailing in Northern Ireland is justified and that such a policy may be adopted to protect women police officers.

An exception created by an unchallengeable administrative decision, such as provided for in Article 53 of the 1976 Sex Discrimination Order, to a fundamental principle of Community law is not permissible, however, either under Article 224 of the EEC Treaty or under the directive itself. In any event Article 224 imposes an obligation to consult. Exceptions to the directive must in particular be subject to judicial control, for which Article 6 of the directive provides without any possible exception. It is not therefore possible to exclude judicial control on grounds of national security or public order. It is not enough for a Member State to allege that its action was taken on the basis of an exception referred to in the Treaty or in secondary legislation; it must show that the necessary conditions are met, subject to review by the Court.

In the context of Article 224 of the Treaty it must be shown not only that the decisions taken are the result of the situation which has arisen but also that they are necessary in order to meet it and that the principle of proportionality has been observed. In this regard a parallel can be drawn with the exceptions provided for in Articles 36 and 48 (3) of the EEC Treaty, which do not create an area of reserved competence for the Member States. The fact that an exceptional situation of the type envisaged in Article 224 has arisen is not therefore sufficient for a Member State to be able to derogate, without any form of judicial review, from a fundamental principle of Community law. In the present case it is necessary to determine in the light of the principle of proportionality whether it was necessary and permissible in the conditions prevailing in 1980 not only to exclude women police officers from certain duties but also to dismiss them or to refuse to renew their contracts. It has not yet been demonstrated in this case that it would not have been sufficient to assign Mrs Johnston to unarmed duties, as had been done during her six years of service in the RUC fulltime Reserve.

With regard to the second question, the Commission considers that, owing to the context in which the duties described by the national court are carried out but not owing to their nature, fulltime employment as an armed member of the police reserve or training in the handling of firearms may be covered by Article 2 (2) of the directive. It refers in this regard to the fact that elsewhere in the United Kingdom sex is not considered a determining factor. The difference therefore lies in the context in which the duties and training of police officers are carried out.

As regards the third question, it is sufficient to make the following points without giving an exhaustive list: An exception may be justified not in relation to a post as a whole but in relation to particular duties attaching to the post. Thus, Mrs Johnston could have been assigned to specific police duties which could be performed unarmed. Such a solution might be imposed by the principle of proportionality. The same applies to the exclusion from certain forms of training for particular duties.

The answer to the fourth question must be in the affirmative in the circumstances of this case, at least as far as concerns Article 3 (2) (c) of the directive, which specifically refers to administrative provisions.

As regards the fifth question, the Commission observes, without giving an exhaustive list of the criteria to be taken into consideration for the purposes of Article 3 (2) (c) of the directive, that the necessity for a prohibition or restriction on the employment of women in a given activity may cease to be justified if the social or technical circumstances which justified it change. In the present case the concern for protection is likely to be founded for as long as the task of maintaining public order in Northern Ireland remains significantly more difficult than in the rest of the United Kingdom.

With regard to the sixth question, the Commission states that the Chief Constable cannot rely on the certificate issued by the Secretary of State. It is not compatible with Article 6 of the directive for a Member State to rely on a provision of its own legislation in order to deny individuals the right to invoke before the national courts the national provisions implementing the directive. The certificate should therefore be set aside. The national court may then deal with the matter entirely under national law. This would enable the case to be resolved without its being necessary to consider whether any other provision of the directive may be directly relied upon by an individual before a national court.

Question 7 (a) does not arise since the only provision which it is necessary to rely upon in the present case is Article 6 of the directive. The obligation of the Member State concerned to subject its action to control by the Community institutions and the right of individuals to bring actions before the national courts cannot be excluded on the basis of Article 224 of the EEC Treaty. Similarly, the answer to Question 7 (b) is negative since the Secretary of State's certificate cannot be relied upon and the merits of the case must be dealt with by the national court.