WRITTEN QUESTION E-1740/02 by Bartho Pronk (PPE-DE), Maria Martens (PPE-DE),Karla Peijs (PPE-DE) and Albert Maat (PPE-DE) to the Commission. Follow-up question to Written Question E-1022/02 on the free movement of ships' captains and first officers.
Date: 2002-06-19
Institutions: European Parliament, Provisional data
Subjects: Spain, case-law (EU), crew, discrimination on the basis of nationality, free movement of workers, interpretation of the law, job access, recognition of diplomas, recognition of vocational training qualifications, right to work

C 301 E/220

Official Journal of the European Communities

EN

5.12.2002

(2002/C 301 E/232)

WRITTEN QUESTION E-1740/02

by Bartho Pronk (PPE-DE), Maria Martens (PPE-DE),
Karla Peijs (PPE-DE) and Albert Maat (PPE-DE) to the Commission

(19 June 2002)

Subject: Follow-up question to Written Question E-1022/02 on the free movement of ships’ captains and

first officers

The Commission’s answer to Written Question E-1022/02 (1) is incomprehensible. The Commission based
its answer on Article 39(3) and (4). In Cases C-114/97 and C-283/99, the Court of Justice clearly indicated
the limits of those provisions, which are, of course, also applicable to the matter at issue here. The Court
‘whatever the duties of the employee’. Accordingly, the Commission
also explicitly uses the words:
incorrectly refers to ‘the special functions [to be performed] due to the special characteristics of maritime
navigation’. Of course, no two sets of duties are absolutely identical, and there is, therefore, no such
requirement in any legal order for reference to be made to case-law. It is quite understandable that the
Commission wants to review its opinion in the light of the ruling in the Anave case, but it is incorrect in
law. Proceedings before the Court can take years, and the ruling is relevant only at the time when it is
handed down, not before. A kind of vacuum period may not exist. Finally, the Commission failed to
answer questions 3 and 5 at all, and it answered questions 1, 2 and 4 in general and not in detail.

Can the Commission give as detailed an answer as possible to each and every individual question

1.
tabled in Written Question E-1022/02?

2.

Can it indicate the timetable for and the background to the Anave case?

(1) OJ C 229 E, 26.9.2002, p. 170.

Answer given by Mrs Diamantopoulou on behalf of the Commission

(23 July 2002)

The Commission would refrain from making more detailed remarks on the possible implication of the case
law referred to by the Honourable Members as two cases on the specific question of captains and first
officers, the Anave case and the very recently introduced Anker case (1) are still ‘sub iudice’.

The Commission has not received information about the European Court of Justice’s timetable for dealing
with the Anave case.

The background to the case is the following:

(cid:1) the Spanish Merchant Navy Officers Association brought before the Supreme Court of Spain
contentious administrative Action against Royal decree No 2062/1999 concerning the regulation of
the basic level of training in maritime professions. The Spanish Court brought the matter before the
European Court of Justice for a preliminary ruling because of the doubts it had as to whether the
interpretation of the Community rules, as given until now by the Court of Justice, allows the retention
of provisions under which the jobs of captains and first officers who are employees of the shipowning
companies, are unconditionally reserved to nationals of a Member State.

(cid:1) Under Spanish law citizens of Member States shall be eligible for employment as ships’ crew, provided
that such employment does not involve the exercise, even on an occasional basis, of public duties,
which is reserved to Spanish citizens (Article 77(2) of Law 27/1992 of National Ports and the
Merchant Navy). Article 8 of
the Royal decree No 2062/1999 contains specific rules for the
recognition of professional qualifications of citizens of the Community with diplomas issued by one
of the Member States. In Article 8(2) reference is made to posts which involve or may involve the
exercise of public duties allocated by law to Spaniards, such as those of captain, skipper or first officer.
These posts shall remain reserved to Spanish citizens.

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(cid:1) As an exception from the main rule of reserving posts of captains and first officers to Spaniards,
Article 8(3) of the Royal decree opens up the posts of captain and first officer, under conditions of
reciprocity, to the nationals of other Member States as regards employment on merchant ships with a
gross tonnage of less than 100 gross tonnage (GT), which carry cargo or fewer than 100 passengers
and operate exclusively between ports or points situated in areas in which Spain has sovereignty,
sovereign rights or jurisdiction.

(1) Reference for a preliminary ruling by the Schleswig-Holsteinisches Oberverwaltungsgericht in the administrative-law
case of 1. Albert Anker, 2. Klaas Ras, and 3. Albertus Snoek against Federal Republic of Germany, Case C-47/02, OJ
C 109, 4.5.2002.

(2002/C 301 E/233)

WRITTEN QUESTION E-1749/02

by Ian Paisley (NI) to the Commission

(19 June 2002)

Subject: Criteria for evaluating medical devices

1. What are the criteria used in evaluating artificial medical devices (i.e. heart valves) manufactured in
the USA or outside the EU for use within the EU?

2. Why should these devices be used in the EU prior to approval in the USA, or country of origin/
manufacture?

3. What analysis/testing was done in the case of the ‘St. Jude,’Masters‘Series, silzone-coated artificial
mechanical valve prosthesis’ prior to approval for use in the EU?

4. Why was this device accepted and approved in Europe for over a year before approval by the Food
and Drug Administration (FDA) in the USA?

5.
Considering that EU citizens are not in a position to file for punitive damages, what steps can be
taken to ensure that these citizens are not being used as human ‘guinea pigs’ in an effort to provide a
cheap testing ground for these ‘prototypes’?

Answer given by Mr Liikanen on behalf of the Commission

(15 July 2002)

Medical devices intended to be placed on the Community market imported from a third country must
meet the same requirements as devices manufactured in the Community for the Community market. These
are laid down in Council Directive 93/42/EEC of 14 June 1993 on medical devices (1) (hereafter ‘Medical
Devices Directive’), and relate to substance and conformity assessment.

Access to the European market does not depend on approval in the United States based on American
requirements. It is the manufacturer who decides where he wants to sell his product first, and who
consequently has to ensure that his products meet all regulatory requirements applicable in the relevant
market.

The Commission expects that all analyses and tests were carried out that are applicable to heart valves
under the Medical Devices Directive. It is the task of Member States to ensure that products placed on the
market effectively conform to the relevant requirements laid down by this Directive.

(1) OJ L 169, 12.7.1993.