WRITTEN QUESTION E-1571/03 by Erik Meijer (GUE/NGL) to the Commission. Solutions for environmental problems in Flanders without increasing dependence on private firms.
Date: 2003-05-08
Institutions: European Parliament, Provisional data
Subjects: Belgium, Flanders (Belgium), application of EU law, award of contract, decontamination, legal status, public contract, public sector, restriction on competition

C 84 E/472

Official Journal of the European Union

EN

3.4.2004

at its own initiative on Member States for failure to comply with the applicable provisions. As Community
public procurement law stands at present,
it is only through referral to the Court under the strict
conditions laid down in Article 228(2) that the Court may impose a lump sum or penalty payment on a
Member State which does not comply with one of
the
its judgments. However, as stated above,
proceedings initiated by the Commission in this instance are currently only at the pre-litigation stage.

As the dialogue with the competent Belgian authorities is still being conducted,

4.
premature to make any pronouncements about what the outcome might be.

it would be

(1) OJ C 281, 26.9.1996 and OJ C 17, 19.1.2001.

(2004/C 84 E/0546)

WRITTEN QUESTION E-1571/03

by Erik Meijer (GUE/NGL) to the Commission

(8 May 2003)

Subject: Solutions for environmental problems in Flanders without increasing dependence on private firms

1.
Does the Commission’s criticism of the significant involvement of the Flemish government since
1990 in tackling environmental problems relate exclusively to the advantages secured by firms operating
in free market, including private firms employed by the Flemish government, because of the absence of
competition? Are fines to be imposed? What will happen if the firms are declared bankrupt in the
meantime?

2.
How can governments, who are responsible for dealing with environmental problems, guard
themselves against the efforts of private firms to take over some of their tasks under worse conditions,
such as road transport instead of transport by water or restricting their activities to those which are
profitable?

3.
How can governments keep down the cost of carrying out environmental improvements by avoiding
dependence on private companies who see environmental rehabilitation as a valuable market but not as an
essential objective?

4.
Could the problem raised by the Commission be solved if the legal status of the Flemish firms
concerned were to be changed from companies with some private shareholders into government services
including the Flemish provinces and Flemish intercommunal
for which the Flemish government,
associations, bear full liability?

Sources: De Standard, 9 April and 10 April 2003, De Morgen, 10 April 2003, De Financiëel Economische
Tijd, 10 April 2003.

Answer given by Mr Bolkestein on behalf of the Commission

(25 June 2003)

As indicated in the answer to Written Question E-1570/03 from Mr Meijer (1), the Commission raised
1.
objections, under the public procurement rules, to a number of agreements/measures awarded without
prior invitation to tender by the local and regional authorities in the Flemish region relating to certain
actions in the field of environmental policy. A dialogue is being conducted with the Belgian authorities in
order to reach an out-of-court settlement. It is only if the Belgian authorities should refuse to comply with
Community law throughout the entire infringement procedure that the matter would be referred to the
Court of Justice under the strict conditions laid down in Article 228(2) and the Court could impose a lump
sum or penalty payment on the Belgian authorities. In the meantime, the possible bankruptcy of certain
firms involved in this dossier does not seem to be a relevant factor in the analysis conducted by the
Commission, which seeks to ensure compliance with Community law and thus require of the Belgian
authorities that, when they decide to entrust the conduct of certain economic activities to a third party, the
choice of this third party is made after a competitive tendering process.

3.4.2004

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Official Journal of the European Union

C 84 E/473

In his second question, the Honourable Member asks how governments can guard themselves against
2.
poorer environmental conditions which might be applied by private enterprises. In response, it should be
noted that the contracting authorities may, within the context of the public contracts which they award
and subject to certain conditions, take ecological criteria into consideration, provided that these are linked
to the subject-matter of the contract.

3.
Through his third question, the Honourable Member wishes to find out how governments can keep
down the costs of applying environmental measures whilst avoiding dependence on private companies.
On this topic, it should be pointed out that the correct application of public procurement legislation
should allow proper competitive tendering and thus find the tender offering the best value for money,
whilst enabling environmental considerations to be taken into account under the conditions mentioned
above.

In his fourth question, the Honourable Member wishes to know whether the problem raised by the
4.
Commission could be solved by transforming the companies responsible for carrying out environmental
work into government services. This question seems to refer to the problem of ‘in house’ relations, which
would fall outside the scope of public procurement rules. The Court of Justice has, however, explained
with regard to this matter that the rules on public procurement always apply when the State or public
authority (acting as the contracting authority) assigns the provision of a service to a third party, except in
exceptional situations in which the contracting authority exercises over the body concerned a control
which is similar to that which it exercises over its own departments and that body carries out the essential
part of its activities with the contracting authority. The obligation to issue a prior invitation to tender
judgment of
could not therefore be evaded simply by taking a 100 % holding in a company (‘Teckal’
18 November 1999 in Case C-107/98).

(1) See page 471.

(2004/C 84 E/0547)

WRITTEN QUESTION E-1671/03

by Bartho Pronk (PPE-DE) to the Commission

(19 May 2003)

Subject: Follow-up question to question E-3529/02 on statutory regulation of holiday pay

In its answer to Written Question E-3529/02 (1), the Commission states that Belgian legislation defers the
actual exercise of entitlement to annual leave to the following calendar year. The Commission considers
that this is in accordance with Article 7 of Directive 93/104/EC (2). However, the Article in question
expressly states that every (!) worker is entitled to paid annual
four weeks.
In COM(2000) 787 the Commission itself notes that workers cannot take any paid leave during the first
year of their employment. The only conclusion that may be drawn from this is that not all workers are
entitled to paid annual leave in Belgium, as is explicitly required under Directive 93/104/EC. Article 7(2) of
the Directive expressly states that the minimum period of paid annual leave may not be replaced by an
allowance in lieu. That means that it is not possible to derogate from paragraph 1.

leave of at

least

(!)

1.
Does the Commission agree that not all workers are entitled to paid annual leave in Belgium, as is
noted in COM(2000) 787, and that this is the case in particular for those who are in their first year in
employment? How does this accord with the provision in the Directive stating that all workers have this
right? The Commission is expressly requested to take account of its communication COM(2000) 787 in its
answer.

2.
The Commission also did not address, in its earlier answer, the question concerning to what extent
the Belgian regulation constitutes an obstacle to free movement of workers and, accordingly, may be in
contravention of Article 39 of the Treaty. The Commission is expressly requested to comment on this
question.

(1) OJ C 137 E, 12.6.2003, p. 222.
(2) OJ L 307, 13.12.1993, p. 18.