WRITTEN QUESTION E-2439/02 by Erik Meijer (GUE/NGL) to the Commission. Agreement between Microsoft and the American FTC on the non-use of data collected and the forthcoming EU evaluation.
Date: 2002-08-28
Institutions: European Parliament, Provisional data
Subjects: complaint to the Commission, consumer protection, data collection, data protection, data recording, information technology industry, personal data, protection of privacy

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Official Journal of the European Union

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accordance with objective criteria and without regard to their nationality. The fact that, according to the
Honourable Member, different rules exist in Belgium and Germany as regards access to and the exercise of
the profession is therefore not in breach of the principle of equal treatment enshrined in Article 12 of the
EC Treaty.

There is currently no Community legislation which deals specifically with access to the profession of
notary. Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of
higher-education diplomas awarded on completion of professional education and training of at least three
years’ duration (2) applies in principle to notaries, but it contains no provisions on the application of age
limits.

Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment
in employment and occupation (3) prohibits discrimination on the grounds of religion and belief, disability,
age and sexual orientation. It provides for the possibility of certain differences of treatment on grounds of
age which are objectively and reasonably justified and which are thus not incompatible with Community
law. Moreover, a recital of the Directive states that the latter is without prejudice to national provisions
laying down retirement ages. The Member States must transpose this Directive into national
law by
2 December 2003. However, to take account of particular conditions, Member States may, if necessary,
have an additional period of three years from 2 December 2003 to implement the provisions of the
Directive on age and disability discrimination.

The Commission has no information on any national age limits for notaries which may exist in the
Member States.

(1) Case 1/78, Kenny, [1978] ECR 1489.
(2) OJ L 19, 24.1.1989.
(3) OJ L 303, 2.12.2000.

(2003/C 28 E/270)

WRITTEN QUESTION E-2439/02

by Erik Meijer (GUE/NGL) to the Commission

(28 August 2002)

Subject: Agreement between Microsoft and the American FTC on the non-use of data collected and the

forthcoming EU evaluation

In view of the persistent criticism of the fact that it remains possible to store far more data
1.
concerning users of Microsoft ‘.NET Passport’ than Microsoft was for a long time prepared to admit, is the
Commission aware that at the beginning of August an agreement was reached between Microsoft and the
American Federal Trade Commission whereby the company agrees not to use the data it has gathered and
undertakes to make it possible for a third party to check the system within one year?

2.
Does the Commission agree with American consumers’ organisations and competitors of Microsoft
that, although these agreements are an important step in the right direction, they do not afford any
watertight guarantees that it will no longer be possible to use the data collected, particularly bearing in
mind that previously Microsoft denied the existence of a number of the possibilities which have since
come to light and that even now it continues to point to the alleged benefit to consumers from the fact
that their data are stored for 90 days without their consent?

Does the Commission recall that,

(Windows XP) and
3.
E-3430/01 (2) (Smart Tags), it stated that it had never received any complaints? How can this be reconciled
with the fact that, according to my own observations, both groups and individuals are complaining? Who
has the power to complain, what conditions must be met in order for the Commission to consider
complaints, and how long does it take before the results are known?

in the answers to questions E-3111/01 (1)

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4. Will the Commission in fact take measures to subject Microsoft’s operations within the EU fully to
Community law, so that any database containing personal data has to comply with the requirements of
Directive 95/46/EC (3) of 24 October 1995, with the result that data subjects must be informed of the
purpose, who is responsible for what and rights of use, no compulsion is permitted and the supervisory
authority of the Member State concerned must be notified of how data is processed? Will it consequently
no long be technically possible to gather data secretly here, although it will remain possible in the USA?
Will the Commission take account of efforts to achieve this in its evaluation pursuant to Article 33 of
Directive 95/46/EC which it promised before the end of 2002 in its answer to question E-0718/02 (4)?

(1) OJ C 147 E, 20.6.2002, p. 97.
(2) OJ C 172 E, 18.7.2002, p. 60.
(3) OJ L 281, 23.11.1995, p. 31.
(4) OJ C 205 E, 29.8.2002, p. 200.

Answer given by Mr Bolkestein on behalf of the Commission

(1 October 2002)

1.
Yes, the Commission was contacted and informed by the Federal Trade Commission (FTC) itself on
the day its enforcement resolution was issued. The Commission has regular contacts with the FTC on a
wide range of issues, not least the enforcement of the Safe Harbor Privacy Principles.

2.
The Commission agrees that the FTC resolution is indeed an important step in the right direction.
Although the FTC operates in a different legal framework than the one existing in Europe, the Commission
has a positive opinion of the effectiveness of its enforcement actions.

3.
The Commission can confirm that it has not itself received complaints related to the matters referred
in this question. It understands the term ‘complaint’ in the sense defined in its Communication to the
Parliament and the European ombudsman on relations with the complainant in respect of infringements of
Community law of March 2002 (1): ‘complaint shall mean any written approach made to the Commission
pointing to measures or practices contrary to Community Law’. Anyone may file a complaint with the
Commission free of charge against a Member State about any measure (law, regulation or administrative
action) or practice within a Member State that they consider incompatible with a provision or principle of
Community law. The same Communication sets out the other aspects of the Commission’s policy and
practice as regards complaints.

4.
The data protection authorities of the Member States are the primary enforcers of data protection
rules and they meet regularly in the working party set up under Article 29 of the Data Protection Directive
(Directive 95/46/EC of the Parliament and of the Council of 24 October 1995 on the protection of
individuals with regard to the processing of personal data and on the free movement of such data). The
Commission provides the secretariat for this working party and its sub-groups.

The working party is aware of the expansion of on-line authentication services. It has stressed that these
services need to respect
the core data protection principles. Microsoft’s .NET Passport is the most
important initiative in this field at present and the working party’s Internet Sub-Group has therefore made
an initial study of it and reported to the working party.

At its meeting on 1 and 2 July 2002, the working party found that Microsoft had put in place some
measures to address data protection requirements, but that a number of elements of the .NET Passport
system raised legal issues and required further consideration. It therefore decided to undertake further
analysis, where necessary in dialogue with Microsoft, in order to assess whether the Community data
protection principles are correctly complied with and, where appropriate, to identify elements that require
to be changed (2). At the FTC’s request, the Commission informed the members of this Working Party
about the enforcement action taken by the FTC against Microsoft. The Working Party will meet again on
2 and 3 October 2002 and will continue its discussion on this subject.

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The Commission’s review of Directive 95/46/EC will be wide-ranging and will take account of all useful
and relevant information brought to its attention.

(1) COM(2002) 141 final.
(2) The complete text of the adopted document is available at: http://europa.eu.int/comm/internal_market/en/dataprot/

wpdocs/wp60_en.pdf.

(2003/C 28 E/271)

WRITTEN QUESTION E-2452/02

by Alexandros Alavanos (GUE/NGL) to the Commission

(29 August 2002)

Subject: Employment and social security rights for persons employed as school caretakers

By decision 34100 of 24 November 1999 of the Greek Minister of Labour a programme providing work
experience for 3 300 unemployed persons as school caretakers was adopted. The programme was
originally scheduled to run for 24 months: eleven months were to be devoted to acquiring work
experience and the remaining thirteen months would consist of work. The unemployed persons were
recruited for this purpose in the first quarter of 2001. After a seminar lasting a few days, the school
caretakers took up regular work guarding school buildings every day of the month around the clock. Their
work was judged to be exceptionally positive. However, for the first eleven months of work experience, the
social security rights of these employees were extremely limited and included only medical care without
any provision for pension rights, leave, holidays, night work, etc. After the end of the first eleven-month
period of work experience, their period of employment was extended by ministerial decision, but without
them being granted the social security and labour rights to which they are entitled by law, although they
have completed the period of work experience and are regularly employed. What measures does the
Commission intend to take to put an end to the unacceptable restrictions on their employment rights,
particularly since it is financing the programmes in question?

Answer given by Mrs Diamantopoulou on behalf of the Commission

(10 October 2002)

As the matter raised concerns a European Social Fund programme, the Commission will contact the Greek
authorities in order to obtain the necessary information and clarification and inform the Honourable
Member of the outcome of this inquiry.

The Commission can, however, draw the Honourable Member’s attention to the following: Council
Directive 1999/70/EC of 28 June 1999 concerning the famework agreement on fixed-term work
concluded by ETUC, UNICE and CEEP (1) lays down the principle of non-discrimination of fixed-term
workers compared to workers with a contract of indefinite duration. The Member States may, however,
provide that
training relationships and
apprenticeship schemes or employment contracts and relationships which have been concluded within
the framework of a specific public or publicly-supported training, integration and vocational retraining
programme.

the Directive should not be applied to initial vocational

As far as the protection of health and safety is concerned, the provisions of the Working Time Directive
(Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organization of
working time (2)), in principle, apply. Indeed, the personal scope of this Directive is rather large, as it
applies to every worker. The definition of ‘worker’ is, according to Article 3 of Council Directive 89/391/
EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health
of workers at work (3),
including trainees and apprentices but
excluding domestic servants’.

‘any person employed by an employer,

Workers covered by the Directive are, without prejudice of the derogations provided for by Article 17,
entitled to:

(cid:1) a minimum daily rest period of 11 consecutive hours per 24-hour period (Article 3);

(cid:1) a rest break where the working day is longer than six hours (Article 4);