WRITTEN QUESTION E-1750/01 by José García-Margallo y Marfil (PPE-DE) to the Commission. Intra-Community investment.
Date: 2001-06-15
Institutions: European Parliament, Provisional data
Subjects: European Commission, application of EU law, free movement of capital, investment policy, liberalisation of the market, privatisation, proposal (EU), public sector, right of establishment, single market

16.5.2002

EN

Official Journal of the European Communities

C 115 E/11

(2002/C 115 E/010)

WRITTEN QUESTION E-1750/01

by José García-Margallo y Marfil (PPE-DE) to the Commission

Subject: Intra-Community investment

(15 June 2001)

In 1997 the Commission adopted an interpretative communication (1) on intra-Community investment
which it did not submit to either Parliament or the Council. According to Commissioner Bolkestein, the
objective of the communication was to ‘indicate,
to national authorities (…), how the Commission
interprets the provisions of (…) the Treaty on capital movements and the right of establishment’.

The Presidency conclusions of the Stockholm European Council state that ‘the Commission will also ensure
that those enterprises which still benefit from a monopoly situation on their national market will not
unduly benefit from that situation’.

Will the Commission act on the Stockholm mandate and use it as an interpretative criterion to resolve the
cases now pending in the energy sector (Hidrocantábrico and Montedison)?

(1) OJ C 220, 19.7.1997, p. 15.

Joint answer
to Written Questions E-1749/01 and E-1750/01
given by Mr Bolkestein on behalf of the Commission

(13 November 2001)

As regards the question of intra-Community investment in general, the Commission would refer the

1.
Honourable Member to its answer to Written Question P-1615/01 by Mr W.G. Van Velzen (1).

The answer to the two more specific questions raised by the Honourable Member draw on the conclusions
reached by the Commission at its meeting on 20 June 2001.

2.
As regards Parliament’s Resolution calling on it to replace its 1997 communication with a proposal
for a directive, the Commission noted that the matter concerned fundamental and directly applicable
freedoms established by the Treaty, namely the free movement of capital and freedom of establishment.

As the Court of Justice has frequently held, this type of provision does not require any implementing
measures as it is specific and unconditional. At the most, implementing measures might be useful to
‘facilitate’ exercise of the rights attaching to the freedoms concerned in cases where differences in national
laws could create awkward obstacles. Directives which, as suggested in the Resolution, limited rather than
facilitated the exercise of those rights would be contrary to Community law. Furthermore, the Court has
consistently held that even Community institutions themselves are not entitled to restrict the fundamental
freedoms guaranteed by the Treaty.

On the other hand,
in its institutional role (Article 211 of the EC Treaty), the Commission not only
proceeds against Member States that infringe the rules but often decides, as a preventive measure, to
inform national authorities and economic operators of the way it interprets provisions of the Treaty
(naturally, under the control of the Court of Justice),
in order to reduce the risk of divergent legal
interpretations and thus prevent infringements.

The 1997 communication was adopted in accordance with the Commission’s specific competences and
respects the directly applicable nature of the provisions on free movement of capital and freedom of
establishment.

In the circumstances, since directly applicable provisions do not require any implementing measure, the
Commission, in order to explain its position, has decided to initiate a dialogue with Parliament in response
to the latter’s Resolution calling on it to put forward a directive on restrictions on intra-Community
investment.

C 115 E/12

Official Journal of the European Communities

EN

16.5.2002

As regards the Presidency conclusions of the Stockholm European Council

in March 2001, the
3.
Commission concluded at
its meeting that progress in opening up energy markets had in most
Member States been more rapid than provided for in the directives and that this had led to distortions of
competition between firms.

The Commission considered that this situation called for: strict application of the competition rules and
the state aid rules, including those on nuclear energy; more rapid adoption by the Council and Parliament
of the second liberalisation package; the possible application of Article 86, and particularly paragraph 3, in
the event of any delay in adopting the package, with directives or decisions being addressed to
Member States with a view to eliminating any distortions of competition, while preserving service
obligations of general economic interest; and, lastly, a speedy solution to problems linked to tarification in
intra-Community trade and to the development of infrastructures which impeded the effective opening-up
of markets.

On the other hand, the Commission concluded that the concerns expressed at the Stockholm European
Council must not give rise to unilateral action by Member States in breach of the fundamental freedoms of
the EC Treaty.

(1) See page 5.

(2002/C 115 E/011)

WRITTEN QUESTION E-1790/01

by Fernando Fernández Martín (PPE-DE) to the Commission

Subject: Traditional ACP suppliers of bananas

(19 June 2001)

As a result of the agreements relating to the banana import scheme concluded, firstly, between the
European Union and the United States of America and, secondly, between the European Union and
Ecuador, an additional 100 000 tonnes of ‘dollar bananas’ will be imported into the Community as from
1 July 2002.

That new scheme increases the need for traditional ACP banana suppliers rapidly to improve their market
competitiveness.

In 1999, the European Union adopted technical and financial assistance measures to support traditional
ACP suppliers of bananas (Council Regulation (EC) No 856/1999 (1) and Commission Regulation (EC)
1609/1999 (2)) with the specific aim of improving their competitiveness and facilitating the transition
towards the liberalisation of the market scheduled for 2006.

To date, those measures have not been implemented, and this is jeopardising the efforts being made by our
ACP partners to adapt to the new market conditions.

Can the Commission explain the reasons for the delay and indicate the measures which it intends to take
in order to make up the leeway and enable the aid to be disbursed?

(1) OJ L 108, 27.4.1999, p. 2.
(2) OJ L 190, 23.7.1999, p. 14.

Answer given by Mr Nielson on behalf of the Commission

(7 November 2001)

In the second phase of the new banana import scheme (and until 1 January 2006), 100 000 tonnes will be
transferred from tariff quota C to tariff quota B. The new quota C will be reserved exclusively for
producers in the African, Caribbean and Pacific (ACP) countries, and adoption of the new Regulation (1)
will be conditional on the World Trade Organisation authorising a derogation from Article XIII of the
General Agreement on Tariffs and Trade (GATT), since under the new Regulation a tariff quota of bananas
reserved exclusively for ACP producers would be maintained until January 2006, which conflicts with
Article XIII of the GATT.