Case C-92/03: Action brought on 28 February 2003 by the Commission of the European Communities against the Portuguese Republic
Date: 2003-05-10
Institutions: Court of Justice
Subjects: European Commission, Portugal, action for failure to fulfil an obligation, used oil, waste management, waste recycling

C 112/12

EN

Official Journal of the European Union

10.5.2003

The additional costs of transport and related infrastruc-
ture, energy, health, education,
industry and services
resulting from the remoteness and insularity of the
Autonomous Region of the Azores also affect all under-
takings in the financial sector. Thus, the elevated cost of
transporting goods to and from mainland Portugal and
between the islands is also reflected in that type of
activity, since much of the equipment which banking and
insurance activities require is not available on the local
in certain cases,
market and must be imported and,
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,
accommodation and subsistence costs. Likewise, short-
comings in the education system and the lack of special-
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
operating outside the financial sector are, in the main,
small- and medium-sized enterprises operating in or for
the local market, with establishments or installations on
only one island. Consequently, the additional costs arising
from ‘the effect of
the
Azores’ affect them much less than banking or insurance
institutions which have offices spread out across various
islands. Moreover, the region’s economic underdevelop-
ment and the lower income and purchasing power of its
population penalise, to a greater extent, that kind of
activity.

the special circumstances of

By failing to take account of studies previously submitted
in State aid cases relating to the Autonomous Region of
Madeira and the correlation with all the additional costs
quantified and set out and which arise directly from the
structural deficiencies of the Autonomous Region of the
Azores so far as concern also those undertakings which
operate in the financial sector, the defendant manifestly
infringed the principle of sound administration.

Furthermore, the defendant infringed the principle of
proportionality inasmuch as, in view of the elementary
finding that the situation was absolutely identical with
regard to the abovementioned structural costs for under-
takings in the region which operate in the financial sector,
it should have similarly considered compatible with
the common market the tax reductions applicable to
undertakings which operate in the financial sector, just as
it did in respect of undertakings not operating in the
financial sector and in the same terms.

Action brought on 28 February 2003 by the Commission
of the European Communities against the Portuguese
Republic

(Case C-92/03)

(2003/C 112/21)

An action against the Portuguese Republic was brought
before the Court of Justice of the European Communities on
28 February 2003 by the Commission of
the European
Communities, represented by A. Caeiros and M. Konstantinidis,
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
or administrative constraints make it possible, the Portu-
guese Republic has failed to fulfil its obligations under
Article 3(1) of Council Directive 75/439/EEC (1) of
16 June 1975 on the disposal of waste oils (as amended
by Directive 87/101/EEC), as amended by Directive 87/
101/EEC (2) of 22 December 1986;

2. Order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

the contested decision further
By the same token,
infringes the principle of equality, since it
flagrantly
discriminates against undertakings operating in the finan-
cial sector, which are affected just as much as or more
than others by the ‘the effect of the special circumstances
of the Azores’.

None of the legislative or regulatory provisions referred to by
the Portuguese authorities as having been adopted in order to
implement Directive 75/439/EEC attributes priority to the
treatment of waste oils by regeneration. The Portuguese
authorities themselves confirm that, 12 years after the date set
by Directive 87/101/EEC, they have still not adopted the
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
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