Case C-103/03: Reference for a preliminary ruling by the Landgericht Hagen by order of that Court of 11 February 2003 in proceedings relating to the commercial register concerning Betriebsgesellschaft Radio Ennepe-Ruhr-Kreis mbh & Co. KG; Person concerned: Mr Hans-Jürgen Weske
Date: 2003-05-10
Institutions: Court of Justice
Subjects: communications industry, consolidated account, consultation of information, interpretation of the law, limited partnership, private limited company, publication of accounts

10.5.2003

EN

Official Journal of the European Union

C 112/13

The Commission takes the view that, contrary to the arguments
put forward by the Portuguese authorities, Council Regulation
(EEC) No 259/93 (3) enables the competent authorities to ban
the exportation of waste oils intended for recovery operations,
in particular energy recovery (or burning for energy recovery).

(Regional Court, Hagen) of 11 February 2003, received at the
Court Registry on 5 March 2003, for a preliminary ruling in
proceedings relating to the commercial register concerning
Betriebsgesellschaft Radio Ennepe-Ruhr-Kreis mbh & Co. KG;
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
with waste oil
in such a way as to attribute priority to
regeneration of such waste, there is a contradiction between
the quantities of waste oil which the Portuguese authorities
claim to be available annually and those which the economic
operators claim to be necessary to guarantee the viability of a
waste oil regeneration plant in Portugal. In any event, even if
the Portuguese authorities were able to prove that the mini-
mum limit to make the setting-up of a regeneration plant
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
(according to the Portuguese authorities, collection in 1999
was in the order of 60 %) are decisive contributing factors for
the conditions not being met
for attributing priority to
treatment by regeneration and, in particular, for setting up in
Portugal at least one regeneration plant.

Finally, so far as concerns the alleged difficulty in finding
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
incentive measures including a subsidy for regeneration in
compliance with Article 14 of Directive 75/439/EEC, as
amended by Directive 87/101/EEC.

( 1) OJ 1975 L 194, p. 23.
( 2) OJ 1987 L 42, p. 43.
( 3) Council Regulation (EEC) No 259/93 of 1 February 1993 on the
supervision and control of shipments of waste within, into and
out of the European Community, OJ 1993 L 30, p. 1.

Reference for a preliminary ruling by the Landgericht
Hagen by order of that Court of 11 February 2003 in
proceedings relating to the commercial register concern-
ing Betriebsgesellschaft Radio Ennepe-Ruhr-Kreis mbh &
Co. KG; Person concerned: Mr Hans-Jürgen Weske

1. Was

the European Community

entitled to take
Article 54(1), in conjunction with Article 54(3)(g), of the
EC Treaty (old version) as a basis when it adopted Council
Directive 90/605/EEC of 8 November 1990 amending
Directive 78/660/EEC on annual accounts and Directive
83/349/EEC on consolidated accounts as regards the
scope of those Directives, even though Directive 90/605/
EEC also grants inspection rights to third parties which
do not require protection?

2.

3.

4.

Is Directive 90/605/EEC, in conjunction with Article 47
of Directive 78/660/EEC, compatible with the fundamen-
tal Community right of freedom to exercise a trade or
profession in so far as Kommanditgesellschaften (limited
partnerships) whose personally liable partner is a private
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
to inspect those documents?

Is Directive 90/605/EEC (1),
in conjunction with
Article 47 of Directive 78/660/EEC, compatible with the
fundamental Community rights of freedom of the press
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
the radio broadcasting sector are obliged to publish their
annual accounts and annual report, in particular without
any restriction being imposed on the group of persons
entitled to inspect those documents?

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 &
Co. KG [a limited partnership in which the unlimited
partner is a private limited company] are better protected
by the duty of disclosure imposed on private limited
companies than are creditors of a Kommanditgesellschaft
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