WRITTEN QUESTION E-0196/04 by Ward Beysen (NI) to the Commission. Temporary agency workers directive.
Date: 2004-01-29
Institutions: European Parliament, Provisional data
Subjects: equal treatment, labour law, pay, proposal (EU), temporary employment, working conditions

3.4.2004

EN

Official Journal of the European Union

C 84 E/173

Answer given by Mr Bolkestein on behalf of the Commission

(11 March 2004)

The Commission confirms that in its judgments in the Smits and Peerbooms (1) and Müller-Fauré/van
Riet (2) cases, the Court of Justice stated that, pursuant to Article 49 of the EC Treaty, authorisation to
undergo hospital treatment in another Member State cannot be refused in the event that the same or
equally effective treatment for the patient cannot be obtained without undue delay within the national
territory.

The Court of Justice specified that ‘in order to determine whether treatment which is equally effective for
the patient can be obtained without undue delay in an establishment having an agreement with the insured
person’s fund, the national authorities are required to have regard to all the circumstances of each specific
case and to take due account not only of the patient’s medical condition at the time when authorisation is
sought and, where appropriate, of the degree of pain or the nature of the patient’s disability which might,
for example, make it impossible or extremely difficult for him to carry out a professional activity, but also
of his medical history’ (Müller-Fauré/van Riet judgment, paragraph 90).

The Court of Justice also specified that such authorisation could not be refused solely on the grounds that
there were waiting lists on national territory for the hospital treatment concerned, without account being
taken of the specific circumstances attaching to the patient’s medical condition.

Under Article 22 of Regulation (EEC) No 1408/71 (3), the competent institution in the Member State where
the individual is insured is responsible for reimbursing the medical costs incurred in another Member State
by patients with an authorisation. Responsibility for these costs is borne according to the principles of that
Regulation (application of the conditions of the country where benefits are provided), and Article 36 of the
Regulation determines the practical conditions for taking responsibility between social security institutions.
It should be noted that in the Vanbraekel judgment (4), the Court of Justice considered that this Regulation
‘does not in any way prevent the reimbursement by Member States, at the tariffs in force in the competent
State, of costs incurred in connection with treatment provided in another Member State (see Case C-158/
96 Kohll [1998] ECR I-1931, paragraph 27) where the legislation of the Member State in which the person
concerned is insured makes provision for such reimbursement and the tariffs applied under that legislation
are more beneficial than those applied by the Member State in which the treatment was provided.’

(1)
(2)

Judgment of 12 July 2001 in Case C-157/99 Smits and Peerbooms [12.07.01], ECR 2001, p. I-05473.
Judgment of 13 May 2003 in Case C-385/99 V.G. Müller-Fauré v. Onderlinge Waarborgmaatschappij
O.Z. Zorkverzekeringen UA and E.E. M. Van Riet v. Onderlinge Waarborgmaatschappij ZAO Zorkverzekeringen,
ECR 2003, p. I-04509.

(3) Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to
employed persons and their families moving within the Community, OJ L 149, 5.7.1971, as updated by Regulation
118/97, OJ L 28, 30.1.1997.
Judgment of 12 July 2001 in Case C-368/98 Vanbraekel, ECR 2001, p. I-05363.

(4)

(2004/C 84 E/0213)

WRITTEN QUESTION E-0196/04

by Ward Beysen (NI) to the Commission

(29 January 2004)

Subject: Temporary agency workers directive

Does the definition of ‘pay’ exclude pensions, other financial benefits and overtime? If so, does the
Commission intend to expressly exclude these items in the proposed directive?

If the aforementioned items are not expressly excluded from the proposed Directive, is it intended that
their application (or exclusion) should be determined by Member States or by collective agreements? If so,
does the Commission intend to expressly state this intention in the proposed directive?

C 84 E/174

Official Journal of the European Union

EN

3.4.2004

Does the Commission intend the comparison of basic working and employment conditions to be made on
the basis of an overall comparison rather than an item-by-item comparison?

Does the Commission intend to make it clear in the proposed directive that temporary workers should be
paid according to their qualifications, expertise and the nature of the job (cid:1) meaning that in some
circumstances temporary workers could be paid less than permanent workers?

Answer given by Mrs Wallström on behalf of the Commission

(4 March 2004)

The Honourable Member questions the Commission about certain provisions in the proposed directive on
working conditions for temporary agency workers.

Regarding the definition of salary, the Commission noted that during their negotiations in the Council the
Member States deemed it necessary to point out that the principle of non-discrimination does not apply to
occupational social security schemes, including occupational pension and health insurance schemes and
financial contribution schemes. On the other hand it has always been very clear that overtime is included
in the definition of salary. Providing for the contrary or granting such an exemption has not at any time
been considered.

With regard to general working and employment conditions, reference should be made to the amended
Commission proposal. The principle of non-discrimination has essentially been reformulated in such a
manner as to rule out any alternative. The same basic working and employment conditions that the
worker would have enjoyed if he/she had been recruited directly by the user undertaking to hold the same
job, should be applied to the temporary agency worker. From now on, the point of reference is the post
held by the temporary agency worker. Their situation is no longer comparable to that of any similar
worker employed by the user undertaking. On the other hand, the basic working and employment
conditions that should be set are those that the user undertaking would have had to apply if, instead of
employing an agency temp, it had decided to recruit directly, for an identical period of time

(2004/C 84 E/0214)

WRITTEN QUESTION E-0197/04

by Ward Beysen (NI) to the Commission

(29 January 2004)

Subject: Use of State funds to reduce electricity prices for industrial users

The latest figures from Eurostat show that the downward trend in the cost of electricity to industrial users
is coming to an end. With this in mind, I have noted the statements emanating from Britain that it is
proposed to grant industrial customers a generous (10 %) State subsidy on electricity prices.

According to my information, the statement issued on this subject was based on consultation with the
Commission.

In view of the vital role of industrial electricity prices in attracting domestic investment, I should be
interested to know the Commission’s opinion of this approach. Does the Commission intend to make this
instrument available to all Member States?

Answer given by Mr Monti on behalf of the Commission

(10 March 2004)

The Commission is not aware of any British proposal to grant industrial customers a ten per cent State
subsidy on electricity prices that the Honourable Member refers to in his written question.