WRITTEN QUESTION E-0620/03 by Carles-Alfred Gasòliba i Böhm (ELDR) to the Commission. Freedom of establishment and the securing of authorisation to carry out roadworthiness tests on vehicles in Germany.
Date: 2003-03-03
Institutions: European Parliament, Provisional data
Subjects: EU law - national law, EU national, Germany, administrative formalities, right of establishment, roadworthiness tests, vehicle

C 84 E/4

Official Journal of the European Union

EN

3.4.2004

prisoners. (See the Commission’s answers to his written questions E-0250/03 and 0263/03 (1), E-3031/
02 (2), and E-2526/02, E-2597/02 and E-2629/02 (3)).

Through its heads of mission in Tunis, the Union is continuing to monitor the hunger strike movement in
Tunisian prisons, as well as Mr Jebali’s situation.

The issue of a general amnesty for crimes of conscience committed between 1980 and 1990 has not been
raised by the Commission with the Tunisian authorities.

The Commission is not aware of the events reported by the Honourable Member regarding Mr Mohammed
Charfi. It is therefore not aware of acts or statements attributed to Kairouan’s religious authorities, but will
seek relevant information via its Delegation in Tunis.

Democratic values constitute an important element of the association agreement and the Presidency of the
Union, like the Commission, which is associated with it in tasks relating to these issues, is continuing to
press in its political dialogue with the Tunisian authorities, for their implementation in Tunisia.

(1) OJ C 161 E, 10.7.2003, p. 202.
(2) OJ C 192 E, 14.8.2003, p. 90.
(3) OJ C 155 E, 3.7.2003, p. 26.

(2004/C 84 E/0005)

WRITTEN QUESTION E-0620/03

by Carles-Alfred Gasòliba i Böhm (ELDR) to the Commission

(3 March 2003)

Subject: Freedom of establishment and the securing of authorisation to carry out roadworthiness tests on

vehicles in Germany

Restrictions on the freedom of nationals from one Member State to establish themselves within the
territory of another Member State are prohibited under Article 43 of the EC Treaty, save where they are
justified in the public interest. Those restrictions have been interpreted by the Court of Justice as including
rules or provisions which apply both to nationals and to non-nationals alike but which in practice make it
problematic or less advantageous for nationals from one Member State to establish themselves in another.

Annex VIIIb of the 28 September 1988 Strassenverkehrs-Zulassungs-Ordnung (StVZO)
lays down the
requirements which bodies wishing to carry out roadworthiness tests in Germany must fulfil in order to
secure the necessary authorisation from each federal state. One such requirement is that of submitting a
series of documents and demonstrating that certain conditions of a practical nature have been met,
including one to the effect
the body seeking authorisation must comprise a minimum of
60 independent experts and that a minimum number of those experts must be based within the country
in which recognition is being sought.

that

Does the Commission not think that insisting that those requirements be met before authorisation can be
granted restricts freedom of establishment, since it calls for business investment
to be made and
entrepreneurial risks to be taken in advance? In practice, this makes it less attractive for a national from
some other Member State to set up a vehicle roadworthiness testing business in Germany.

the Commission not consider

Does
laid down under German law place
disproportionate restrictions on the freedom of establishment, even if such restrictions may be justified in
the public interest?

the requirements

that

Does the Commission not consider the German law in question to be incompatible with the general
principles underlying Council Directive 96/96/EC (1) of 20 December 1996 on the approximation of the
laws of the Member States relating to roadworthiness tests for motor vehicles and their trailers?

(1) OJ L 46, 17.2.1997, p. 1.

3.4.2004

EN

Official Journal of the European Union

C 84 E/5

Supplementary answer
given by Mr Bolkestein on behalf of the Commission

(10 March 2004)

In response to Written Question 620/03 (1) from the Honourable Member on the freedom of establishment
and the securing of authorisation to carry out roadworthiness tests on vehicles in Germany and to Oral
Questions 150/03 (2) and 153/03 (2) from Honourable Members Valdivielso de Cué and Vidal-Quadras
Roca on the same subject, the Commission launched an enquiry concerning the provisions laid down in
Annex VIIIb to the StVZO of 28 September 1998.

The enquiry reveals that bodies wishing to carry out roadworthiness tests on vehicles in Germany must
first secure the necessary authorisation from each federal state and fulfil a whole series of requirements
relating primarily to the constitution of the body and management by a minimum of 60 experts including
a sufficient number of inspection engineers established in the area in which recognition has been obtained.

the EC Treaty, all measures

restricting the freedom of establishment

Under Article 43 of
in a
disproportionate manner are prohibited. In addition, according to the case law of the Court of Justice,
Article 43 of the EC Treaty prohibits not only discrimination based on nationality (3) but also all covert
forms of discrimination (4), as well as stating that ‘any national measure (…) even though it is applicable
without discrimination on grounds of nationality,
is liable to hamper or to render less attractive the
exercise by Community nationals, including those of the Member State which enacted the measure, of
freedoms guaranteed by the Treaty’ (5). However, restrictions could nevertheless still be
fundamental
compatible with the Treaty if they were justified ‘by pressing reasons of public interest (see to that effect,
judgment in Case 71/76 Thieffry v. Conseil de l’Ordre des Avocats à la Cour de Paris [1977] ECR 765,
paragraphs 12 and 15). It would however also be necessary in such a case for application of the national
rules in question to be appropriate for ensuring attainment of the objective they pursue and not to go
beyond what is necessary for that purpose’ (5).

According to the information provided by the German authorities, the provisions contained in the StVZO
are intended to guarantee the independence and efficiency of organisations in charge of roadworthiness
testing and to ensure that such organisations have efficient and transparent internal structure in the area in
which recognition has been obtained.

Therefore, even if it seems legitimate for Member States to take all necessary measures to ensure that the
quality and methods of roadworthiness testing carried out on vehicles with the intention of maintaining
road safety, the fact still remains that they must nevertheless endeavour to do so in a manner which
respects the principle of proportionality. The Commission has doubts concerning the proportionality of
the provisions in StVZO. This Written Question will now be registered as a complaint within the
framework of the procedure laid down in Article 226 of the EC Treaty.

(1) OJ C 222 E, 18.9.2003.
(2) April 2003 part-session.
(3) ECJ, 30 March 1993, Konstantidinis, 168/91, paragraph 12.
(4) ECJ, 13 July 1993, Commerzbank, C-330/91, paragraph 14.
(5) ECJ, 31 March 1993, Kraus, C-19/92, paragraph 32.

(2004/C 84 E/0006)

WRITTEN QUESTION P-0759/03

by Vitaliano Gemelli (PPE-DE) to the Commission

Subject: The European Commission’s medical service

(6 March 2003)

The Commission’s reply to written question P-0021/03 (1) shows that the appointment of senior staff in
the medical service hinged on erroneous reference to the hospital management system in some Member
States and on a mistaken desire to equate the prevention and monitoring duties of an occupational health
service with the essentially curative aims of hospitals.

The Commission and the other Community institutions are aware of this distinction and have always
placed the medical services under the authority of an occupational health physician, thereby adhering in
letter and in spirit to the recommendations of the ILO and of the Commission itself.