Opinion of the Advocate General — ECLI:EU:C:2010:403
Date: 2010-07-06
Language of the case: Italian
Subject matter: Right of establishment
Procedure: Action for failure to fulfil obligations - unfounded
Origin: Italy

summary that the Commission’s application should be dismissed as unfounded. 49. On the question of costs, under Article 69(2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Italian Republic has not applied for costs, each of the parties should bear its own costs. 50. Under the first subparagraph of Article 69(4) of those Rules, any Member State which has intervened in the proceedings is to be ordered to bear its own costs. The Republic of Slovenia must therefore bear its own costs. Conclusion 51. In the light of the foregoing considerations, I propose that the Court should rule as follows: 1. The action is dismissed. 2. The Italian Republic shall bear its own costs. 3. The European Commission shall bear its own costs. 4. The Republic of Slovenia shall bear its own costs. 1 – Original language: French. 2 – Notwithstanding the fact that that provision expressly mentions only fees and emoluments in respect of criminal proceedings and out-of-court work, in the case-law of the Court of Justice it is consistently cited as covering also fees and emoluments in respect of civil proceedings (see, for example, the judgments in Case C-35/99 Arduino [2002] ECR I-1529, paragraph 6, and in Joined Cases C-94/04 and C-202/04 Cipolla and Others [2006] ECR I-11421, paragraph 4; and the order of 5 May 2008 in Case C-386/07 Hospital Consulting and Others, not published in the ECR, paragraph 5). 3 – OJ 1977 L 78, p. 17. 4 – Cited above. 5 – Cited above. 6 – By contrast, with regard to a compulsory Italian tariff for all customs agents, the Court held that the Italian legislation requiring a professional body to adopt the aforementioned tariff was contrary to Article 85 EC, since it was a decision by an association of undertakings and not a State measure (Case C-35/96 Commission v Italy [1998] ECR I-3851). 7 – Cited above. 8 – In its application, the Commission drew attention to the finding of the Corte d’Appello di Torino (Turin Court of Appeal), the referring court in Cipolla, in its judgment of 26 March 2008 (Cipolla v Portolese in Fazari), according to which ‘the setting of compulsory minimum fees is not an instrument which protects consumers, to whom professional tariff costs – usually – do not apply, and who – because of an informational imbalance … are unable to assess the multiplicator effect which the splitting of the categories of charges and fees in relation to the duration of the proceedings has on the final costs of the service remunerated, irrespective of the quality of the service rendered, which is detrimental to the proper administration of justice’. 9 – Cited above. 10 – It is true that Advocate General Maduro, in point 66 of his Opinion in Cipolla and Others, found that the Italian tariff also included maximum fees which lawyers practising in Italy could not exceed. Advocate General Léger took a similar view in point 94 of his Opinion in Arduino with regard to Ministeral Decree No 585 of 5 October 1994, which preceded Ministerial Decree No 127/2004. However, in view of the Italian legislation referred to in the aforementioned Opinions, the exact basis for those findings is unclear, as is the reply to the question whether those findings apply only to the judicial determination of costs or also apply to relations between lawyers and clients. 11 – In its application, the Commission incorrectly states that the aforementioned provision prohibits any derogation from the fees and charges set for lawyers’ services. In fact, that prohibition concerns only minimum tariffs. 12 – By way of example, I may cite the German tariff described in paragraph 7 of the judgment in Case C-289/02 AMOK [2003] ECR I-15059, the Czech tariff (vyhláška Ministerstva spravedlnosti č. 177/1996 Sb. o odměnách advokátů a náhradách advokátů za poskytování právních služeb) and the Slovak tariff (vyhláška Ministerstva spravodlivosti Slovenskej republiky č. 655/2004 Z. z. o odmenách a náhradách advokátov za poskytovanie právnych služieb). 13 – In that regard, I think I should express my doubts as to how the compulsory nature of the maximum tariffs may be inferred from Article 24 of Law No 794/1942, which merely imposes the prohibition of derogating from the minimum fees set by the tariff for lawyers’ court services in civil proceedings and provides that any derogating agreement is void. 14 – Case C-129/00 Commission v Italy [2003] ECR I-14637, paragraph 30. 15 – It must be remembered that, in the application, the Commission simply stated that it follows from the settled case-law of the Corte suprema di cassazione ‘that the prohibition of derogating from the lawyers’ professional tariff renders void any agreement to the contrary between the parties concerned in any way by the services’ but did not provide any specific example.