movement of persons, there are exceptions in the case of public service, and the relevant case law of the Court of Justice and a statement of the European Commission include the armed forces in this excluded category.213 Despite this, some countries do recruit non-nationals into their armed forces or into specific units, e.g., the French Foreign Legion recruits non-nationals, 214 and the Gurkhas in the British Army are Nepalese citizens.215 Box 12.7 The Gurkha Brigade215 For nearly two centuries, since the 1815 peace treaty that ended the Anglo-Nepalese war of 1814-1815, Gurkhas have served the Crown, initially as soldiers in the (British) Indian Army, and following Indian Independence in 1947 in the British Army. In a normal year, some 28,000 potential recruits compete for the 230 places that are available in the 3,500-strong Brigade of Gurkhas. The Brigade is unique. It is not an operational brigade in the conventional sense. Rather, it is an administrative entity, an umbrella organization that ensures that formed Gurkha units, into which all Gurkha soldiers are recruited and serve, mainly as infantry, but also as engineers and in signals and logistics units, are able to be integrated into, and form part of, other operational brigades in the British Army. Gurkhas are recruited in Nepal. They are Nepalese citizens and continue to be so during their period of service to the Crown. On retirement, they return to Nepal and resume their place in Nepalese society. These special arrangements are required to enable Gurkhas to serve in the British Army while at the same time maintaining their distinct Nepalese identity and safeguarding their cultural, religious, and ethnic heritage. The conditions of service are governed by the Tripartite Agreement (originally a memorandum of agreement signed in 1947 between the Governments of the UK, India, and Nepal, in which the Government of Nepal agreed to the employment of Gurkha troops in the armies of the UK and India). As explained above, restrictions on non-nationals serving in the armed forces will often be defensible. However, where non-nationals are permitted to serve, differences in the conditions of service will be harder to defend.216 Two court cases involving alleged discrimination against Gurkhas in the UK demonstrate these principles in operation. In the first, the issue was whether the terms and conditions of service of members of the Brigade of Gurkhas were compatible with Art. 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.217 Gurkhas were less favourably treated in the amount of pension that they received, as compared with other British army soldiers, but more favourably treated as to when it was payable (immediately after 15 years, whereas a British soldier was entitled to a deferred pension payable at the age of 60). The Court also took into account the very different living conditions in the societies to which Gurkhas and other British soldiers would retire. Although it found that there was no breach of Art. 14, nevertheless the litigation led to a fundamental review of conditions of service.218 In the second, the discrimination concerned the difference in compensation payments to Gurkha and British soldiers who were held as prisoners of war by the Japanese during World War 213  See the European Parliament factsheet “Free movement for workers”, <http://www.europarl.europa.eu/ facts/3_2_2_en.htm>. 214  See <http://www.legion-recrute.com/en>. 215  Judgment of J. Sullivan (Administrative Court) in R (Purja) v. Ministry of Defence, England and Wales High Court, 2003, p. 445; <http://www.army.mod.uk/brigade_of_gurkhas/index.htm>. 216  Restrictions against citizens of non-member states are not covered by EU Directive 2000/43. See Art. 3.2. 217  R (Purja and others) v. Ministry of Defence, Court of Appeal, 9 October 2003, Weekly Law Reports, Vol. 1, 2004, p. 289. 218  House of Lords, Debate, Publications & Records Section, British Parliament website, 11 January 2005, <http://www.publications.parliament.uk/pa/ld200405/ldhansrd/vo050111/text/50111-47.htm>. 109 Handbook on Human Rights and Fundamental Freedoms of Armed Forces Personnel