Order — ECLI:EU:C:2004:552
Date: 2004-09-23
Language of the case: German
Court formation: Second Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment
Concepts: Coordination of company law - European Economic Interest Grouping
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Order 1. Freedom of movement for persons – Freedom of establishment – Partnerships and companies – Directive 90/605 – Annual accounts and consolidated accounts of certain types of partnerships – Right for all third parties to consult the annual accounts and the annual report of partnerships – Choice of legal basis – Article 54(3)(g) of the Treaty (now, after amendment, Article 44(2)(g) EC) – Validity (EC Treaty, Art. 54(3)(g) (now, after amendment, Art. 44(2)(g) EC); Council Directive 90/605) 2. Freedom of movement for persons – Freedom of establishment – Partnerships and companies – Directive 90/605 – Annual accounts and consolidated accounts of certain types of partnerships – Right for all third parties to consult the annual accounts and the annual report of partnerships – Infringement of the right to pursue a trade or profession and of the right to freedom of expression as regards bodies in the press, publishing and broadcasting sectors – None (EC Treaty, Art. 54(3)(g) (now, after amendment, Art. 44(2)(g) EC); Council Directive 90/605) 3. Freedom of movement for persons – Freedom of establishment – Partnerships and companies – Directive 90/605 – Annual accounts and consolidated accounts of certain types of partnerships – Obligations to publish annual accounts imposed on only one type of limited partnership – Infringement of the principle of equal treatment – None (Council Directive 90/605) 1. To the extent it follows from Directive 90/605/EEC amending Directive 78/660 and Directive 83/349 on annual accounts and consolidated accounts as regards the scope of those directives that any person may inspect the annual accounts and annual report of the types of partnerships referred to in it, without having to establish a right or an interest requiring to be protected, that directive could validly be adopted on the basis of Article 54(3)(g) of the EC Treaty (now, after amendment, Article 44(2)(g) EC), by virtue of which the Council and the Commission are required to work for the abolition of restrictions on freedom of establishment by coordinating to the necessary extent and with a view to rendering them equivalent the safeguards which, for the protection of the interests of members and others, are required by Member States of companies or firms. That provision, which confers a wide power on the Community legislature, in fact refers to the objective of protection of the interests of members and others in general, without differentiating between or excluding particular categories of them, so that the concept of ‘others’ within the meaning of that article extends to all third parties. It follows that that concept is to be broadly interpreted and that it extends inter alia to competitors of the companies or firms in question. (see paras 34-35, operative part 1) 2. To the extent it follows from Directive 90/605 amending Directive 78/660 and Directive 83/349 on annual accounts and consolidated accounts as regards the scope of those directives that any person carrying on business in the press, publishing or broadcasting sectors may inspect the annual accounts and annual report of the types of partnerships referred to in that directive, without having to establish a right or an interest requiring to be protected, that directive is compatible with the general principles of Community law as regards the right to pursue a trade or profession and freedom of expression. Restrictions may indeed be imposed on the exercise of those rights, provided they effectively meet objectives of general interest pursued by the Community and do not constitute, as regards the aim pursued, a disproportionate and intolerable interference, impairing the very substance of those rights. The measures regarding publication imposed by Directive 90/605 meet such objectives since they pursue the twofold objective of general interest laid down in Article 54(3)(g) of the Treaty (now, after amendment, Article 44(2)(g) EC), namely, first, the protection of third parties against the financial risks associated with corporate firms which offer only their net assets as guarantees to third parties and, secondly, the introduction into the Community of equivalent minimum legal conditions in terms of the scope of financial information which competing companies and firms must make available to the public. Furthermore, they do not constitute a disproportionate and intolerable interference, impairing the substance of the rights in question, since they are not liable to alter the competitive position of the companies concerned. (see paras 36, 48, 50, 52-53, 58-59, operative part 2) 3. Directive 90/605 amending Directive 78/660 and Directive 83/349 on annual accounts and consolidated accounts as regards the scope of those directives is compatible with the principle of equal treatment in that that directive has the effect of imposing obligations as to publication of annual accounts on limited partnerships all of the fully liable members of which are constituted as private limited companies, unlike limited partnerships having at least one fully liable member who is a natural person and which are not subject to those obligations. The distinction made by Directive 90/605 is based on the consideration that the first type of partnerships offer only their net assets as guarantees to third parties, whereas that is not the case with the second type of limited partnership. Such a distinction is therefore objectively justified by considerations of the protection of the interests of third parties and such protection is an essential purpose of that directive. (see paras 60, 67, 69, 73, operative part 3)