You are on page 1of 2

C 112/12 EN Official Journal of the European Union 10.5.

2003

The additional costs of transport and related infrastruc- Furthermore, the defendant infringed the principle of
ture, energy, health, education, industry and services proportionality inasmuch as, in view of the elementary
resulting from the remoteness and insularity of the finding that the situation was absolutely identical with
Autonomous Region of the Azores also affect all under- regard to the abovementioned structural costs for under-
takings in the financial sector. Thus, the elevated cost of takings in the region which operate in the financial sector,
transporting goods to and from mainland Portugal and it should have similarly considered compatible with
between the islands is also reflected in that type of the common market the tax reductions applicable to
activity, since much of the equipment which banking and undertakings which operate in the financial sector, just as
insurance activities require is not available on the local it did in respect of undertakings not operating in the
market and must be imported and, in certain cases, financial sector and in the same terms.
transported between various islands. Furthermore, in
view of the dearth of specialists and qualified staff in the
Azores and the problems facing the educational system
there, certain specialised services which banks need are
not available in the region. They therefore have to
be provided by specialists from continental Portugal
(maintenance of equipment, auditing, consulting, trainers
for courses, etc.) In such cases, it is clear that anyone
employing such specialists ends up bearing air transport, Action brought on 28 February 2003 by the Commission
accommodation and subsistence costs. Likewise, short- of the European Communities against the Portuguese
comings in the education system and the lack of special- Republic
ists and qualified staff in the region results in a lack of
specific training being offered, the alternative being to
send staff to continental Portugal. However, undertakings (Case C-92/03)
operating outside the financial sector are, in the main,
small- and medium-sized enterprises operating in or for
(2003/C 112/21)
the local market, with establishments or installations on
only one island. Consequently, the additional costs arising
from ‘the effect of the special circumstances of the
Azores’ affect them much less than banking or insurance
institutions which have offices spread out across various An action against the Portuguese Republic was brought
islands. Moreover, the region’s economic underdevelop- before the Court of Justice of the European Communities on
ment and the lower income and purchasing power of its 28 February 2003 by the Commission of the European
population penalise, to a greater extent, that kind of Communities, represented by A. Caeiros and M. Konstantinidis,
activity. acting as Agents, with an address for service in Luxembourg.

The applicant claims that the Court should:

1. Declare that, by failing to adopt the provisions necessary


to attribute priority to the treatment of waste oils by
regeneration, irrespective of whether technical, economic
By failing to take account of studies previously submitted or administrative constraints make it possible, the Portu-
in State aid cases relating to the Autonomous Region of guese Republic has failed to fulfil its obligations under
Madeira and the correlation with all the additional costs Article 3(1) of Council Directive 75/439/EEC ( 1) of
quantified and set out and which arise directly from the 16 June 1975 on the disposal of waste oils (as amended
structural deficiencies of the Autonomous Region of the by Directive 87/101/EEC), as amended by Directive 87/
Azores so far as concern also those undertakings which 101/EEC (2) of 22 December 1986;
operate in the financial sector, the defendant manifestly
infringed the principle of sound administration. 2. Order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

None of the legislative or regulatory provisions referred to by


By the same token, the contested decision further the Portuguese authorities as having been adopted in order to
infringes the principle of equality, since it flagrantly implement Directive 75/439/EEC attributes priority to the
discriminates against undertakings operating in the finan- treatment of waste oils by regeneration. The Portuguese
cial sector, which are affected just as much as or more authorities themselves confirm that, 12 years after the date set
than others by the ‘the effect of the special circumstances by Directive 87/101/EEC, they have still not adopted the
of the Azores’. necessary measures to attribute such priority.
10.5.2003 EN Official Journal of the European Union C 112/13

The Commission takes the view that, contrary to the arguments (Regional Court, Hagen) of 11 February 2003, received at the
put forward by the Portuguese authorities, Council Regulation Court Registry on 5 March 2003, for a preliminary ruling in
(EEC) No 259/93 (3) enables the competent authorities to ban proceedings relating to the commercial register concerning
the exportation of waste oils intended for recovery operations, Betriebsgesellschaft Radio Ennepe-Ruhr-Kreis mbh & Co. KG;
in particular energy recovery (or burning for energy recovery). Person concerned: Mr Hans-Jürgen Weske on the following
questions:

So far as concerns economic constraints which, in the view of


the Portuguese Government, do not make it possible to deal 1. Was the European Community entitled to take
with waste oil in such a way as to attribute priority to Article 54(1), in conjunction with Article 54(3)(g), of the
regeneration of such waste, there is a contradiction between EC Treaty (old version) as a basis when it adopted Council
the quantities of waste oil which the Portuguese authorities Directive 90/605/EEC of 8 November 1990 amending
claim to be available annually and those which the economic Directive 78/660/EEC on annual accounts and Directive
operators claim to be necessary to guarantee the viability of a 83/349/EEC on consolidated accounts as regards the
waste oil regeneration plant in Portugal. In any event, even if scope of those Directives, even though Directive 90/605/
the Portuguese authorities were able to prove that the mini- EEC also grants inspection rights to third parties which
mum limit to make the setting-up of a regeneration plant do not require protection?
economically viable is, normally, for between 60 000 and
80 000 tonnes of waste oil to be available annually, it would
have to be considered that deficiencies in monitoring the use
to which waste oil is put and in the collection of such oil 2. Is Directive 90/605/EEC, in conjunction with Article 47
(according to the Portuguese authorities, collection in 1999 of Directive 78/660/EEC, compatible with the fundamen-
was in the order of 60 %) are decisive contributing factors for tal Community right of freedom to exercise a trade or
the conditions not being met for attributing priority to profession in so far as Kommanditgesellschaften (limited
treatment by regeneration and, in particular, for setting up in partnerships) whose personally liable partner is a private
Portugal at least one regeneration plant. limited company are obliged to publish their annual
accounts and annual report, in particular without any
restriction being imposed on the group of persons entitled
Finally, so far as concerns the alleged difficulty in finding to inspect those documents?
private investors willing to bear the high level of investment
necessary for the construction of regeneration units, the
Portuguese authorities could have adopted a number of 3. Is Directive 90/605/EEC ( 1), in conjunction with
incentive measures including a subsidy for regeneration in Article 47 of Directive 78/660/EEC, compatible with the
compliance with Article 14 of Directive 75/439/EEC, as fundamental Community rights of freedom of the press
amended by Directive 87/101/EEC. and radio in so far as Kommanditgesellschaften whose
personally liable partner is a private limited company and
which are engaged in the press and publishing sector or
( 1) OJ 1975 L 194, p. 23. the radio broadcasting sector are obliged to publish their
( 2) OJ 1987 L 42, p. 43. annual accounts and annual report, in particular without
( 3) Council Regulation (EEC) No 259/93 of 1 February 1993 on the any restriction being imposed on the group of persons
supervision and control of shipments of waste within, into and entitled to inspect those documents?
out of the European Community, OJ 1993 L 30, p. 1.

4. Is Directive 90/605/EEC compatible with the general


principle of equality in so far as it places at a disadvantage
those Kommanditgesellschaften whose personally liable
partner is a private limited company as compared with
Kommanditgesellschaften whose personally liable partner
is a natural person, even though creditors of a GmbH &
Reference for a preliminary ruling by the Landgericht Co. KG [a limited partnership in which the unlimited
Hagen by order of that Court of 11 February 2003 in partner is a private limited company] are better protected
proceedings relating to the commercial register concern- by the duty of disclosure imposed on private limited
ing Betriebsgesellschaft Radio Ennepe-Ruhr-Kreis mbh & companies than are creditors of a Kommanditgesellschaft
Co. KG; Person concerned: Mr Hans-Jürgen Weske whose personally liable partner, as a natural person, is
not under any duties of disclosure?
(Case C-103/03)

(2003/C 112/22)
(1 ) OJ L 317 of 16.11.1990, p. 60.

Reference has been made to the Court of Justice of the


European Communities by order of the Landgericht Hagen