WRITTEN QUESTION E-3151/00

by Jonas Sjöstedt (GUE/NGL) to the Commission

(6 October 2000)

Subject: Barriers to exports in the German construction industry

Small firms in Sweden sometimes encounter problems when wanting to carry on business activity in other Member States. The problems are biggest in Germany, Sweden's biggest export market.

One problem is that when a firm wishes to carry on economic activity in Germany, on whatever scale, it first has to register as a business with the German authorities. In the case of construction activity, it must also apply for membership of a builders' association, for which a Swedish vocational training certificate is required, along with proof that it has been trading for more than six years. Regardless of whether Swedish firms plan to stay one day or two years, they all have to go through the same procedure in Germany.

Does the Commission consider the above procedures to be compatible with the rules on free movement in the internal market?

Answer given by M. Bolkestein on behalf of the Commission

(7 November 2000)

When firms established in Sweden wish to carry out activities in Germany on a permanent basis, the national measures in the host Member State must comply with the right of establishment referred to in Article 43 (formerly Article 52) of the EC Treaty. For temporary activity in Germany, the German authorities and courts are obliged to comply with the principle of freedom to provide services referred to in Article 49 (formerly article 59) of the EC Treaty.

Generally speaking, a national measure complies with these provisions of the EC Treaty only if it is applied in a non-discriminatory manner, it is justified in terms of the overriding general interest, it is a suitable means of achieving the objective pursued and it does not go beyond what is necessary for achieving that objective.

As regards the problem relating to the construction sector which the Honourable Member raised in particular, the Commission would like to point out that a distinction should be made between the recognition of training and professional experience on the one hand, and the procedures for inclusion on the trade register (Handwerksrolle) on the other, and that the recognition of training and professional experience may take the form of the authorisation to be given by the German authorities. When the German authorities ask for proof from the Swedish authorities concerning the performance of the activity in question for at least six years in another Member State, this is in accordance with Directive 1999/42/EEC(1), in particular Article 4, and, therefore, also with the provisions of Articles 43 and 49 of the EC Treaty. This Directive replaced Directive 64/427/EEC(2) without any amendment to the existing rules in this respect. The provisions of Article 4 of the Directive were transposed by the Order of the Ministry of Economic Affairs of 4 August 1966 concerning the conditions for inclusion on the trade register for nationals of other Member States. However, once issued, authorisation should provide entitlement to automatic inclusion on the trade register without any additional administrative costs.

This is the result of a recent judgment of the Court of Justice in the Corsten preliminary ruling(3), particularly as regards the provision of services on a temporary basis. In this respect, the Commission is of the opinion that any other procedure for entry on the trade register does not comply with Community law.

(1) Directive 1999/42/EEC of the European Parliament and of the Council of 7 June 1999 establishing a mechanism for the recognition of qualifications in respect of the professional activities covered by the Directives on liberalisation and transitional measures and supplementing the general systems for the recognition of qualifications (OJ L 201, 31.7.1999).

(2) Council Directive of 7 July 1964 laying down detailed provisions concerning transitional measures in respect of activities of self-employed persons in manufacturing and processing industries falling within ISIC Major Groups 23-40 (Industry and small craft industries) (64/427/EEC) (OJ 117 of 23.7.1964).

(3) Case C 58/98, Corsten, Judgment of 3.10.2000 (not yet published in the Reports of Cases before the Court).