WRITTEN QUESTION E-3844/02 by Theodorus Bouwman (Verts/ALE) to the Commission. Hampering of trans-frontier employment and mobility of labour by tax convention between the Netherlands and Belgium.
Date: 2003-01-09
Institutions: European Parliament, Provisional data
Subjects: Belgium, Netherlands, application of EU law, competence of the Member States, double taxation, drivers, free movement of workers, frontier worker, labour mobility, tax convention, tax system

C 51 E/12

Official Journal of the European Union

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26.2.2004

(2004/C 51 E/012)

WRITTEN QUESTION E-3355/02

by Antonios Trakatellis (PPE-DE) to the Commission

(27 November 2002)

Subject: Ban on concluding public contracts with media companies

A new law adopted by the Greek Parliament (No 3021, Greek Government Gazette 19/0672002) prohibits
the conclusion of public contracts with natural or legal persons who are primary shareholders in media
companies. The same law defines a primary shareholder as anyone holding as little as 5 % of the total
share capital of a media company.

Given the difficulty of identifying ‘primary shareholders’ at both Community and international level, will
the Commission say:

(cid:1) whether the new law is consistent with Community law and to what extent it infringes the principle
of equality as a general principle of law in view of the fact that it will not be possible to scrutinise
either companies with registered offices in a Member State or off-shore companies as opposed to
domestic companies,

(cid:1) whether the Member States are required to cooperate with the corresponding national authorities in
identifying primary shareholders (provide information, carry out inquiries, etc), especially when no
corresponding scrutiny is provided for in their national legislation,

(cid:1) whether any delay in carrying out checks on Community companies constitutes an infringement of
the principle of equality and discrimination against them in relation to domestic companies, and to
what extent it is practicable and legally valid to preclude Community companies from concluding
public contracts if it is impossible to scrutinise them effectively?

Supplementary answer
given by Mr Bolkestein on behalf of the Commission

(18 September 2003)

The Commission has received the information it requested from the Greek authorities concerning Law
No 3021/19.6.2002 on this matter.

Given the complexity of this issue, the Commission has decided to make further enquiries and add this
matter to its portfolio of cases examined in the course of monitoring the application of Community law.

(2004/C 51 E/013)

WRITTEN QUESTION E-3844/02

by Theodorus Bouwman (Verts/ALE) to the Commission

(9 January 2003)

Subject: Hampering of trans-frontier employment and mobility of labour by tax convention between the

Netherlands and Belgium

A new double taxation convention has recently been concluded between the Netherlands and Belgium
which does not make any special provision for frontier workers. The rules governing taxation of wages
and salaries are more or less the same as those which determine the statutory social security system
applicable (Article 13 of Regulation No 1408/71 (1)). However, in a number of situations, including where
workers are posted for longer than 183 days and for workers in international road haulage, this is still not
the case.

In concluding the new double taxation convention, have the Netherlands and Belgium violated Article 10
(former Article 5) of the EC Treaty?

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Official Journal of the European Union

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Does the Commission agree that the solution opted for, which creates difficulties for EU residents who
choose to work in a neighbouring country but continue to live in their own country, or vice versa, will
discourage mobility of labour, the promotion of which is an important element in the Lisbon strategy?

Will the Commission publish a communication about the differences between the fiscal allocation rules (cid:1)
as laid down in a number of bilateral tax conventions or the OECD Model Convention (cid:1) and the
allocation rules laid down in Regulation No 1408/71 (restricted to wage-earners)?

(1) OJ L 149, 5.7.1971, p. 2.

Answer given by Mr Bolkestein on behalf of the Commission

(13 February 2003)

Under current Community law, direct taxation still falls essentially within the competence of Member
States. In the absence of harmonisation, the conclusion of agreements with a view to avoiding double
taxation and, in doing so, allocating tax jurisdiction between themselves falls within that competence. The
legitimacy of this practice has been recognised by the Court of Justice (Case C-336/96 Gilly [1998]
ECR 2793; see in particular paragraph 30). In the exercise of this competence, Member States, however,
have to respect their obligations under the EC Treaty. Member States are not allowed to discriminate on
the basis of nationality or install or maintain discriminations of nationals of other Member States which
exercise their right of free movement, or to apply unjustified restrictions to their freedom of movement.
Member States should also refrain from restricting the free movement of their own citizens. Furthermore,
Member States have to ensure that national measures are compatible with the freedom of establishment
under Article 43 of the EC Treaty and the freedom to provide services under Article 49 of the EC treaty,
including in the context of the posting of workers for the provision of cross-border services.

Community law does not, therefore, prohibit Member States from allocating (cid:1) and modifying (cid:1) their
taxing rights in their bilateral tax treaties with regard to their residents by distinguishing between certain
categories of workers. Therefore, it is the Commission’s opinion that there is no violation of Article 10 of
the EC Treaty. In particular, the fact that, for some categories of frontier workers, such as workers posted
for longer than 183 days and for workers in international road haulage, the tax allocation rules laid down
in the new Netherlands/Belgium double tax Agreement differ from the allocation rules laid down in
Regulation (EEC) No 1408/71 with regard to social security, cannot in itself be considered as being in
breach with the EC Treaty. In addition, apart from this difference, the system chosen by the two Member
States would appear broadly to follow the Resolution from the Parliament on the situation of frontier
workers in the Union (1).

It is the Commission’s understanding that the change in allocation of taxing rights between Belgium and
the Netherlands for frontier workers was based on the fact that paying taxes in one Member State and
paying the social security contributions in the other Member State created uncertainties and difficulties for
this category of persons.

It is not the intention of the Commission to publish a communication about the differences between the
fiscal allocation rules and the allocation rules laid down in Regulation (EEC) No 1408/71.

(1) OJ C 195, 22.6.1998.

(2004/C 51 E/014)

WRITTEN QUESTION E-0014/03

by Christopher Huhne (ELDR) to the Commission

(20 January 2003)

Subject: Economic integration

Further to the Commission’s answer to Written Question No E-3315/02 (1), will the Commission now
1.
provide the figures in answer to the first part of the question, namely the projections in each Stability and