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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