# CE2004084EN.01070001.xml

| 3.4.2004 | EN | Official Journal of the European Union | CE 84/700 |
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3.4.2004

EN

Official Journal of the European Union

CE 84/700

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(2004/C 84 E/0787)

WRITTEN QUESTION P-0966/04

by Hiltrud Breyer (Verts/ALE) to the Commission

(23 March 2004)

Subject:   Chimney sweep monopoly

Subject:

The regional monopoly of chimney sweeps that pertains in Germany is in breach of the EU rules on freedom of establishment (Article 43) and freedom to provide services (Article 49) in the EC Treaty. The author welcomes the fact that the Commission has launched infringement proceedings.

| 1. | Can the Commission give an estimate of when the infringement proceedings will end, given that it may even be necessary to bring a complaint before the Court of Justice of the European Communities? |
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1.

Can the Commission give an estimate of when the infringement proceedings will end, given that it may even be necessary to bring a complaint before the Court of Justice of the European Communities?

| 2. | Can affected parties in the Federal Republic invoke existing EU law and already now contract out directly to service providers from other EU countries provided that they give guarantees that the emission and fire protection laws in force in the Federal Republic are complied with? |
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2.

Can affected parties in the Federal Republic invoke existing EU law and already now contract out directly to service providers from other EU countries provided that they give guarantees that the emission and fire protection laws in force in the Federal Republic are complied with?

| 3. | Since this is of particular relevance to border areas such as the Saarland, will the Commission say whether it is possible, for the abovementioned competition reasons and also for reasons of consumer protection, to contract out to service providers such as those from the neighbouring country of France, provided that German fire protection and emission laws are complied with, particularly where the Member State in question refuses to transpose current EU legislation, so that the people in question are not disadvantaged as a result of failure to transpose legislation in a Member State? |
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3.

Since this is of particular relevance to border areas such as the Saarland, will the Commission say whether it is possible, for the abovementioned competition reasons and also for reasons of consumer protection, to contract out to service providers such as those from the neighbouring country of France, provided that German fire protection and emission laws are complied with, particularly where the Member State in question refuses to transpose current EU legislation, so that the people in question are not disadvantaged as a result of failure to transpose legislation in a Member State?

Answer given by Mr Bolkestein on behalf of the Commission

(16 April 2004)

(16 April 2004)

| 1. | The Commission cannot currently estimate how long the infringement proceedings against Germany concerning the regional monopoly for chimney sweeps will last. According to the latest available information, the Federal Government and the Länder are discussing the revision of the legislation in question with a view to presenting specific proposals in early summer 2004.
  The Commission will examine the Federal Government's proposals to amend the legislation on chimney sweeps in order to ascertain whether due account has been taken of the Commission's concerns. If this analysis fails to produce satisfactory results, the Commission will consider further action under the infringement procedure. This could involve the adoption of a reasoned opinion followed by a referral to the Court of Justice. |
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1.

The Commission cannot currently estimate how long the infringement proceedings against Germany concerning the regional monopoly for chimney sweeps will last. According to the latest available information, the Federal Government and the Länder are discussing the revision of the legislation in question with a view to presenting specific proposals in early summer 2004.

The Commission will examine the Federal Government's proposals to amend the legislation on chimney sweeps in order to ascertain whether due account has been taken of the Commission's concerns. If this analysis fails to produce satisfactory results, the Commission will consider further action under the infringement procedure. This could involve the adoption of a reasoned opinion followed by a referral to the Court of Justice.

| 2. and 3. | As long as the provisions concerning the regional monopoly for chimney sweeps exist, the affected parties in Germany are obliged to engage local chimney sweeps to sweep and check their chimneys, and face the threat of penalties if they infringe these rules. The affected parties in Germany do of course have the right to point out the possible incompatibility of certain provisions with Community law during administrative procedures or subsequent legal procedures. The primacy of Community law requires that national law which infringes Community law is examined by the national authorities and courts and, if appropriate, is not applied (1). Lower courts can also refer questions on the interpretation of the Treaties to the European Court of Justice (ECJ). In cases where Member State courts have the final say, they are obliged to bring the matter of the compatibility of national law with EU law before the Court of Justice (Article 234(3) of the EC Treaty).
  Under the Treaties establishing the European Communities, the European Court of Justice alone takes the final decision on whether legal provisions are compatible with EU law. The Commission can reach such a decision in its role as guardian of the Treaties, but cannot itself make this legally binding. The Court of Justice can establish that a national law infringes European law and call on the Member State concerned to amend the law to comply with EU law (Article 228(1) of the EC Treaty). If the Member State fails to do so, the Court of Justice may impose a lump sum or penalty payment on it (Article 228(2) of the EC Treaty). |
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2. and 3.

As long as the provisions concerning the regional monopoly for chimney sweeps exist, the affected parties in Germany are obliged to engage local chimney sweeps to sweep and check their chimneys, and face the threat of penalties if they infringe these rules. The affected parties in Germany do of course have the right to point out the possible incompatibility of certain provisions with Community law during administrative procedures or subsequent legal procedures. The primacy of Community law requires that national law which infringes Community law is examined by the national authorities and courts and, if appropriate, is not applied (1). Lower courts can also refer questions on the interpretation of the Treaties to the European Court of Justice (ECJ). In cases where Member State courts have the final say, they are obliged to bring the matter of the compatibility of national law with EU law before the Court of Justice (Article 234(3) of the EC Treaty).

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Under the Treaties establishing the European Communities, the European Court of Justice alone takes the final decision on whether legal provisions are compatible with EU law. The Commission can reach such a decision in its role as guardian of the Treaties, but cannot itself make this legally binding. The Court of Justice can establish that a national law infringes European law and call on the Member State concerned to amend the law to comply with EU law (Article 228(1) of the EC Treaty). If the Member State fails to do so, the Court of Justice may impose a lump sum or penalty payment on it (Article 228(2) of the EC Treaty).

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(1)  ECJ, Case 103/88, ECR 1989, 1839/1871, Point 31.

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