WRITTEN QUESTION P-0759/03 by Vitaliano Gemelli (PPE-DE) to the Commission. The European Commission's medical service.
Date: 2003-03-06
Institutions: European Parliament, Provisional data
Subjects: European Commission, appointment of staff, confidentiality, data protection, health service, management, medical data, medical institution, occupational medicine, powers of the institutions (EU)

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.

C 84 E/6

Official Journal of the European Union

EN

3.4.2004

In the light of the above, and since it is impossible to see which ‘non-strictly medical’ facets of the medical
service justify having an administrative official as the head of that service, does the Commission not
consider that
the new arrangements for that service are incompatible with the need for a sound
management of resources and liable to undermine the principle that there should always be mutual trust
between the institution and its officials?

What measures has the Commission taken to prevent the head of the medical service (cid:1) who has
absolutely no medical knowledge (cid:1) from becoming party, even inadvertently, to health-related data
contained in the files processed by the medical service? Has the European Data Protection Supervisor been
notified of these measures, pursuant to Article 27 of Regulation (EC) No 45/2001 (2) of the European
Parliament and of the Council of 18 December 2000?

(1) See page 1.
(2) OJ L 8, 12.1.2001, p. 1.

Answer given by Mr Kinnock on behalf of the Commission

(8 April 2003)

The Commission reaffirms the fact, as stated in the reply to the Honourable Member’s uestion No P-0021/
03 (1), that the medical side of the Medical Service is managed entirely by the Medical Adviser whose
qualifications and experience are beyond doubt.

The Administrator whose function the Honourable Member questions has no access to medical data.
The Commission also points out
to which Article 49 of
Regulation 45/2001 (2) refers, gives guarantees of protection of the confidentiality of personal data. It is
the provisions of that Article which ensure that the personnel of the Medical Service secretariat, who may
see medical data, are subject to an obligation of strict confidentiality.

the Staff Regulations,

that Article 17 of

Article 10(3) of Regulation 45/2001 provides that ‘… those data are processed by a health professional
subject to the obligation of professional secrecy or by another person also subject to an equivalent
obligation of secrecy’.

Provisions have been adopted so that any processing operations which could be likely to present specific
risks to the rights and freedoms of data subjects will, for the purposes of Article 27, be notified to the
European Data Protection Supervisor once he has taken up his duties.

The reference to hospital management in the previous answer was not ‘erroneous’ and it was merely
intended to illustrate managerial options in large organisations in order to assist the Honourable Member.
Hospitals and other medical services do, as he says, have ‘essentially curative aims’. They also need to be
run effectively as organisations. Putting an administrator in charge of administration enables the medical
expert to focus exclusively on the critically important medical functions of the service.

(1) See page 1.
(2) Regulation (EC) No 45/2001 of the Parliament and of the Council of 18 December 2000 on the protection of
individuals with regard to the processing of personal data by the Community institutions and bodies and on the free
movement of such data, OJ L 8, 12.1.2001.

(2004/C 84 E/0007)

WRITTEN QUESTION E-0844/03

by Herbert Bösch (PSE) to the Commission

(18 March 2003)

Subject: Contracts with management consultants

Management consultants such as Andersen Consulting or Ernst & Young have hit the headlines recently for
allegedly inadequate advisory services. Andersen came in for criticism over the Enron scandal and
Ernst & Young is now faced with a demand for CHF 3 billion following more serious allegations of
unsatisfactory work for the Cantonal Bank of Geneva.