WRITTEN QUESTION E-3281/03 by Bartho Pronk (PPE-DE), Maria Martens (PPE-DE)and Albert Maat (PPE-DE) to the Commission. Follow-up to question E-1740/02 on the free movement of captains.
Date: 2003-11-05
Institutions: European Parliament, Provisional data
Subjects: case-law (EU), crew, free movement of workers, job access, labour law, nationality, recognition of vocational training qualifications

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(d) Article 11 of the Lateran Treaty, which governs the relations between the Vatican City State and the
Italian Republic guarantees the central bodies of the Catholic Church exemption from ‘any interference
on the part of the Italian State’.

In the light of the above, can the Commission indicate:

(cid:1) why no specific checks are conducted on the quantities of beef, cane sugar and chemically pure

sucrose in solid form exported from Member States to the Vatican City State?

(cid:1) whether it has a list of the Holy See institutions and offices located outside the Vatican to which the

goods are exported?

(cid:1) whether any infringement of the Community rules on export refunds should be exempt

from

interference on the part of the Italian State within the meaning of Article 11 of the Lateran Treaty?

(cid:1) which assessments provide the basis for its statement that the quantity of exports to the Vatican

appears reasonable?

(1) OJ C 137 E, 12.6.2003, p. 172.
(2) OJ C 70 E, 20.3.2004, p. 45.

Answer given by Mr Fischler on behalf of the Commission

(16 December 2003)

The Commission would refer the Honourable Member to its answer to his Written Question P-3202/02 (1)
which include a listing with aggregated refunds paid for various destinations including the Vatican State
City (VA).

The Honourable Member wrongly quotes from this answer. The correct amount for the Vatican State City
(VA) is EUR 4 000 813,01 and not EUR 321 711 242,39 as claimed by the Honourable Member.

In the light of the exact amount (EUR 4 000 813,01) for the Vatican State City (VA) the Commission
considers the questions to be without relevance.

(1) OJ C 137 E, 12.6.2003.

(2004/C 78 E/0254)

WRITTEN QUESTION E-3281/03

by Bartho Pronk (PPE-DE), Maria Martens (PPE-DE)
and Albert Maat (PPE-DE) to the Commission

(5 November 2003)

Subject: Follow-up to question E-1740/02 on the free movement of captains

On 30 September 2003 the European Court of Justice gave his decision in the Anave case (C-405/01).
This case concerned the relationship between Article 39 of the Treaty and the free movement of captains.
The Commission deferred answering Written Questions E-1022/02 (1) and E-1740/02 (2) pending the
outcome of the case.

Now that the Commission knows the Court’s decision in the Anave case, can it provide detailed

1.
answers to questions E-1022/02 (and the associated question E-2069/01 (3)) and E-1740/02?

2.
Does the Commission not also consider that the position it expressed in answer to Written Question
E-2069/01, namely the obligation to sail under a captain of the same nationality as the flag does not
violate Community rules on the free movement of workers, is no longer tenable following the Court’s
judgment in the Anave case?

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3. What measures will the Commission take in response to this judgment? Is the Commission planning
to bring infringement proceedings against countries, such as Germany, where laws maintain nationality
requirements for captains?

(1) OJ C 229 E, 26.9.2002, p. 170.
(2) OJ C 301 E, 5.12.2002, p. 220.
(3) OJ C 40 E, 14.2.2002, p. 177.

Answer given by Mrs Diamantopoulou on behalf of the Commission

(23 December 2003)

1. and 2.
On 30 September 2003, the Court rendered two judgements concerning the question whether
it is compatible with the rules on free movement of workers that the posts of masters and chief mates are
restricted to nationals of the State whose flag the ship flies (Case C-47/02 Albert Anker, Klaas Ras,
Albertus Snoek v. Bundesrepublik Deutschland and case C-405/01 Colegio de Oficiales de la Marína
Mercante Española v. Administración del Estado). Case C-47/02 concerned German vessels engaged in
small-scale deap-sea fishing (Kleine Seeschifffahrt); case C-405/01 concerned Spanish merchant ships.

The Court decided that Article 39(4) of the EC Treaty must be construed as allowing a Member State to
reserve for its own nationals the posts of master of vessels flying its flag engaged in small scale maritime
shipping (Kleine Seeschifffahrt) and the posts of master and chief mate of merchant ships flying its flag
only if the rights under powers conferred by public law on masters and chief mates of such ships are
actually exercised on a regular basis and do not represent a very minor part of their activities.

The Court refers to its case-law on the interpretation of Article 39(4) of the EC Treaty: the concept of
public service within the meaning of Article 39(4) of the EC Treaty (under which free movement of
workers does not apply to employment in the public service) covers posts which involve direct or indirect
participation in the exercise of powers conferred by public law and duties designed to safeguard the
general
interests of the State or of other public authorities and thus presume on the part of those
occupying them, the existence of a special relationship of allegiance to the State and reciprocity of rights
and duties which form the foundation of the bond of nationality.

The fact that masters are employed by a private natural or legal person is not, as such, sufficient to exclude
the application of Article 39(4) of the EC Treaty since it is established that, in order to perform the public
functions which are delegated to them, masters act as representatives of public authority in the service of
the general interest of the flag State.

However, recourse to the derogation from the freedom of movement of workers provided for by
Article 39(4) of the EC Treaty cannot be justified solely on the ground that rights under powers conferred
by public law are granted by national law to holders of the posts in question. It is also necessary that such
rights are, in fact, exercised on a regular basis by those holders and do not represent a very minor part of
their activities.

The Court also stated that the nationality condition cannot be justified by Article 39(3) of the EC Treaty: in
this regard, it is sufficient to recall that the right of Member States to restrict the free movement of persons
on grounds of public policy, public security or public health is not intended to exclude economic sectors
such as fishing or occupations, such as master of fishing vessels, from the application of that principle as
regards access to employment, but to allow Member States to refuse access to their territory or residence
there to persons whose access or residence would in itself constitute a danger for public policy, public
security or public health

In reference to Written Question E-1022/02 by the Honourable Member and others, the Commission
would like to express that Article 39(4) of the EC Treaty does not oblige Member States to restrict specific
posts to their own nationals, but it gives the possibility if the conditions are fulfilled. Therefore, Member
States rules may lead in certain areas to differences of application.

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In relation to question 5 of Written Question E-1022/02, the Commission would like to express that it is
aware that in a number of Member States there are serious shortages of captains. It is confident that on the
basis of the judgements of the Court this situation should be improved via cross-border mobility.

In relation to Written Question E-2069/01 by Mr Martens and others, the Commission would like to
express that, very recently, its attention was drawn to a possible new problem of recognition of diplomas
of masters. On the basis of requested additional information the Commission will assess this issue. If the
Honourable Members have additional information about this aspect, they are invited to send it to the
Commission.

As a follow-up to the judgements of the Court, the Commission intends to monitor closely the
including where appropriate by bringing

3.
correct application of this jurisprudence by Member States,
matters before the Court on the basis of Article 226 of the EC Treaty.

(2004/C 78 E/0255)

WRITTEN QUESTION P-3283/03

by Francesco Speroni (NI) to the Commission

(30 October 2003)

Subject: Bananas

A type of fruit called ‘bananito’ is on the market in Padania (and probably in other places in the EU).
According to the website ‘www.baby-banana.com’ indicated on the packages, this fruit belongs to a species
of banana no greater than ten centimetres in length.

Could the Commission indicate whether or not this type of fruit is governed by Regulation 2257/94 (1)?

(1) OJ L 245, 20.9.1994, p. 6.

Answer given by Mr Fischler on behalf of the Commission

(19 November 2003)

The Commission can inform the Honourable Member that the products to which he refers, the so-called
‘bananitos’ or ‘baby bananas’, are bananas 8 to 12 cm long belonging to the subgroups Sweet Fig (AA) and
Fig Apple and Apple-Prata (AAB). Varieties of these subgroups are not covered by the quality standards set
out in Annex I to Commission Regulation (EC) No 2257/94 of 16 September 1994 laying down quality
standards for bananas. These apply only to bananas of varieties of the Musa (AAA) spp subgroups
Cavendish and Gros Michel. For bananas of other varieties it is only the general foodstuff marketing
requirements that have to be observed (plant and public health standards, labelling rules etc.).

(2004/C 78 E/0256)

WRITTEN QUESTION E-3293/03

by Claude Moraes (PSE) to the Commission

(7 November 2003)

Subject: Structural Funds

Does the Commission keep records or have a breakdown of the amount and type of Structural Funding
allocated to EU constituencies, regions or cities that can be made available to MEPs? Are there, for
example, centrally kept records for such funds for London in the UK, specifically for the London Boroughs
of Islington, Hackney and Waltham Forest?