WRITTEN QUESTION E-2008/98

by María Sornosa Martínez (GUE/NGL) to the Commission

(30 June 1998)

Subject: Infringement of the principle of equal access to employment in the fisheries industry in Albufera de Valencia

Albufera de Valencia, one of Europe's principal wetlands, which is classified as a special protection zone under Directive 79/409/EEC(1) (the "birds "directive) and is therefore part of the "Nature 2000" network created under Directive 92/43/EEC(2) (the "habitats"directive), has had a special fisheries regime since King James I the Conqueror granted it as a right to various fishermen's associations in Catarroja, El Palmar and Silla in 1250. The rights of succession of the association's members pass by tradition, but not as a condition of the association, from father to son although there have been three exceptions to this custom since three women have been able to exercise the privilege.

The distribution of fishing plots on the lake is traditionally carried out on the second Sunday of July each year and the plots are known as redolins.

Since 1994, five women have been attempting to acquire the right to fish on the lake, which has repeatedly been denied to them by the fishermen's associations. The women have now appealed to the courts.

This situation violates the principle of equal treatment for men and women and contravenes Directive 76/207/EEC(3) 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, and flouts Articles 2, 3 and 114 of the new Treaty of Amsterdam which set equal rights and opportunities policies as an objective.

1. Is the Commission aware of these facts?

2. Does the Commission not consider that this situation violates Directive 76/207/EEC and contravenes Articles 2, 3 and 114 of the new Treaty of Amsterdam?

3. Can the Commission, by virtue of the above-mentioned directive and as guardian of the Treaty on European Union, enforce the directive and thereby promote the principle of equality and its policy of "main-streaming" in this case?

4. What action will the Commission be taking on this matter?

Answer given by Mr Flynn on behalf of the Commission

(11 September 1998)

1. The Commission was not aware of the situation described by the Honourable Member.

2. On the basis of the information provided, it appears that fishing by the members of fishermen's associations in the Valencia wetlands constitutes an economic activity within the meaning of the EC Treaty. However, the fishermen probably pursue this activity on a self-employed basis outside the framework of any contractual relationship. 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, as referred to by the Honourable Member, would therefore not be applicable. Furthermore, the Commision would draw the Honourable Member's attention to the fact that the Treaty of Amsterdam has not yet entered into force, which means that the question of a possible violation does not arise. At any rate, the Court of Justice has consistently ruled(4) that the provisions of Articles 2 and 3 do not grant to individuals rights which they may assert through court action at national level. The future Article 141 of this Treaty does not lay down rules relating to self-employed persons.

However, Directive 86/613/EEC of 11 December 1986 on the application of the principle of equal treatment between men and women engaged in an activity, including agriculture, in a self-employed capacity, and on the protection of self-employed women during pregnancy and motherhood(5) places a requirement on the Member States to observe the principle of equal treatment for self-employed persons as regards access to an economic activity.

3 and 4. The Commission invites the Honourable Member to provide more detailed information on the situation in question so that it can assess whether the practices criticised are compatible with Community law.

The Commission would also like to draw the Honourable Member's attention to the fact that Article 169 of the EC Treaty does not give the Commission the right to institute infringement proceedings against the Member States in cases where Community law has been violated by private bodies. On the basis of the information currently available to the Commission, it appears that the Spanish authorities cannot be accused of any infringement. Persons who consider themselves victims of a violation of the principle of equal treatment should themselves bring an action before the national courts. If there are any doubts as to how provisions of Community law should be interpreted, the national courts may apply to the Court of Justice for a preliminary ruling, as provided for in Article 177 of the EC Treaty.

(1) OJ L 103, 25.4.1979, p. 1.

(2) OJ L 206, 22.7.1992, p. 7.

(3) OJ L 39, 14.2.1976, p. 40.

(4) Case 126/86 Giménez Zaera [1987] ECR 3697 (Article 2); Case 78/90 Sociétés Compagnie Commerciale de l'Ouest, ECR I-1847 (Article 3).

(5) OJ L 359, 19.12.1986.