CELEX: C2003/112/21
Language: en
Date: 2003-05-10 00:00:00
Title: Case C-92/03: Action brought on 28 February 2003 by the Commission of the European Communities against the Portuguese Republic

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.
 ---pagebreak--- 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