WRITTEN QUESTION P-2492/97 by Francesco Baldarelli (PSE) to the Commission (9 July 1997)

Subject: Trade unions' right to be informed and consulted (Regulation 17/62)

The Commission is currently investigating a case relating to legislation reforming the Italian port system (Law No 84 of 28.1.1994, as amended by Law No. 647 of 23.12.1996) on account of alleged violations of Community law. The inquiry (No. 92/2221) constitutes proceedings by the Commission against the Italian State.

As is apparent from the communication from the Commission's DG IV (Competition), signed by Humbert Drabbe and forwarded on 26 May 1997 (D/13203), the Commission acknowledges the status of 'interested parties' of duck workers' former guilds.

However, the Commission has refused to acknowledge the right to information and consultation of the legitimate workers' representatives (the trade unions FILT/CGIL, FIT/CISL and UILTRASPORTI) during the inquiry and explains, in the same communication, that this is because the former guilds are formally represented by ANCIP and CULMV of Genoa and not by FILT/CGIL, FIT/CISL and UILTRASPORTI.

This decision would appear to be in flagrant violation of Regulation 17/62 ((OJ 13, 21.2.1962, p. 204. )), Article 3 (2) which states that: 'Those entitled to make application are: (a) Member States; (b) natural or legal persons who claim a legitimate interest'. The trade unions are established on a nation-wide basis and represent duck workers; hence their legitimate interest would appear to be clearly established.

Does the Commission believe that the interests of workers should be represented by manufacturers' and employers' associations or does it acknowledge that the trade unions are bearers of 'legitimate interests' in negotiations affecting those workers?

Does the Commission not think that, in this matter concerning Italian port legislation, it should also acknowledge the right to information and consultation of FILT/CGIL, FIT/CISL and UILTRASPORTI?

Answer given by Mr Van Miert on behalf of the Commission (1 August 1997)

The Honourable Member refers to the infringement proceedings against Italy which the Commission has brought under Article 90, read in conjunction with Articles 86, 59, 30 and 48 of the EC Treaty, following the judgment of the Court of Justice of 10 December 1991 in the Merci v Siderurgica Gabrielli case (better known as the Port of Genoa judgment), in which the Court held that certain provisions of Italian port legislation are incompatible with the Treaty ((Case C-179/90 Merci Convenzionali Porto di Genova SpA v Siderurgica Gabrielli SpA [1991] ECR I-5889. )).

However, two aspects of the Honourable Member's question call for further clarification.

Firstly, this case is not being dealt with under Regulation No 17/62, which governs the application of Articles 85 and 86 to undertakings, but under Article 90 of the EC Treaty, which concerns the application to the Member States of the rules enshrined in the Treaty. In proceedings brought under Article 90, it is only the Member State concerned - Italy in this case - which is held to account by the Commission. Before adopting a decision under Article 90(3), therefore, the Commission gives the Member State concerned the opportunity to put forward its point of view. Moreover, in the absence of a regulation implementing Article 90 but in accordance with the well-established case law of the Court of Justice, the Commission also gives the firms benefiting from the national measure objected to the opportunity to state their views. This is what has happened in the case in question, with the Commission informing and sounding out the ANCIP and the CULMV, which represent the dock-work undertakings (i.e. the former dockers' companies) converted under Article 21 of Law 84/94.

Secondly, it is not true that the Commission has denied the trade unions FILT/CIGIL, FIT/CISL and Ultrasporti the right to be informed and consulted during the investigation stage. Although the Commission is under no formal obligation to listen to the views of third parties in proceedings under Article 90, it has always, in practice, made use of its discretionary powers, pursuing a transparent policy of information and consultation of parties able to prove a specific interest in the matter under consideration. This has also been the case with the above-mentioned unions.

In the matter at issue, the Commission's letter of 26 May 1997, to which the Honourable Member refers, is not a refusal addressed to FILT/CIGIL, FIT/CISL and Ultrasporti, but a request that they provide details of any such specific interest.