WRITTEN QUESTION E-1671/03 by Bartho Pronk (PPE-DE) to the Commission. Follow-up question to question E-3529/02 on statutory regulation of holiday pay.
Date: 2003-05-19
Institutions: European Parliament, Provisional data
Subjects: Belgium, EU employment policy, application of EU law, free movement of workers, labour law, paid leave

3.4.2004

EN

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.

C 84 E/474

Official Journal of the European Union

EN

3.4.2004

Answer given by Mrs Diamantopoulou on behalf of the Commission

(20 June 2003)

The Commission refers to its answer to Written Question E-3529/02 by Mr Pronk (1). In addition, the
1.
Commission would like to stress that, under Belgian law, every worker has a right to paid annual leave of
at least four weeks. Article 2 of the Consolidation Law on annual leave of 27 June 1971 provides that
workers (…) are entitled to annual leave in proportion to the work performed (…). Workers’ right to leave
is an acquired right, notwithstanding any agreement to the contrary. Workers may not waive their
entitlement to annual leave. Article 3 of the aforementioned law provides that the amount of leave is
defined by leave cycle, on the basis of the amount of services performed during the cycle. (…). Leave must
total at least twenty-four days per twelve months of work (…). For the purposes of calculating this
amount, the cycle is defined as the calendar year preceding the year in which the leave is to be granted
(…).

Belgian legislation should thus not be confused with legislation such as that in question in the Bectu
case (2), since it does not make the entitlement to paid annual leave subject to a minimum period of work
but merely defers the practical exercise of this right to the following calendar year. In the view of the
Commission, this complies with Article 7(1) (see the argument put forward in the answer to question
E-3529/02).

2.
The Commission considers that Belgian legislation does not give rise to discrimination against
migrant workers and that, as a result, it does not represent an infringement of the right to free movement
of workers (Article 39 of the EC Treaty).

(1) OJ C 137 E, 12.6.2003, p. 222.
(2) See the judgment of the European Court of Justice of 26 June 2001 in case C-173/99.

(2004/C 84 E/0548)

WRITTEN QUESTION P-1696/03

by Danielle Darras (PSE) to the Commission

(15 May 2003)

Subject: European funds and subcontracting

Numerous correspondents have drawn my attention to the planned restructuring within the Arcelor group.

Under this restructuring, two factories in France (Isbergues and Ardoise) are to close, and one new factory
at Carlam, Belgium, is to open, thus reducing the total number of jobs in Arcelor. If the Commission is not
able to take account of the social consequences of this restructuring as grounds for opposing it, I should
like to know whether the Commission can oppose this kind of operation if Arcelor, or the enterprises with
which it subcontracts, receive European funding.

Answer given by Mrs Diamantopoulou on behalf of the Commission

(6 June 2003)

According to the records, the Sollac Florange site (which is under threat as a result of the possible
termination of Arcelor investment) has not received a contribution from the Community’s Structural Funds
for the periods 1994-1999 or 2000-2006.

In accordance with the principle of subsidiarity, both project selection and the implementation and
management of programmes cofinanced by the Structural Funds are the responsibility of the Member
States.

The Structural Funds contribute to the funding of operations which fall within the scope and eligible
activities defined in the regulations relating to the various Funds. These operations must come under the
priority areas and measures selected for assistance from the Funds covering the region concerned. In order
to receive assistance from one of the Funds, the operation must also fulfil the selection criteria approved
by a monitoring committee which ensures that the assistance is implemented properly and efficiently.