Opinion of the Advocate General — ECLI:EU:C:2001:405
Date: 2001-07-12
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Principles, objectives and tasks of the Treaties
Procedure: Reference for a preliminary ruling
Origin: Italy

summary procedure for the recovery of debts, prescribed by Article 633 et seq. of the Italian Code of Civil Procedure (the Code). I - National legislation A - The summary procedure for the recovery of debts 3. The procedimento d'ingiunzione is a summary procedure which allows a creditor by ex parte application to obtain an enforceable court order against the debtor. 4. With his supporting documentary evidence, the creditor applies to the court for the issue of an order against the debtor requiring payment of the sum claimed within a fixed period (in principle 20 days). (2) 5. If the debt relates to fees, charges or reimbursable expenses owed to people who carry on a profession, the application must be accompanied by the applicant's fee invoice. That invoice must be signed by the applicant and endorsed by the opinion of the competent professional association (Article 636 of the Code). 6. Under Article 636(3) of the Code, the court is bound to follow the opinion of the professional association as regards the sums claimed, unless it dismisses the application on the ground that the statement of grounds is inadequate. 7. In accordance with Article 643 of the Code, copies of the order and the application are to be served on the defendant. Their joint service marks the start of the proceedings (Article 643(3) of the Code). As from that service, the defendant may apply to have the order set aside within the period prescribed for voluntary compliance. If the debtor applies to have the order set aside within that period, the ordinary civil procedure inter partes is followed (Article 645 of the Code). If he does not apply, the court declares the order enforceable on application by the creditor. B - The legal provisions on fees 8. Italian legislation provides for minimum tariffs in respect of the services provided by architects and engineers. 9. Initially, those tariffs were fixed by Law No 143 of 2 March 1949 approving the professional scale of fees for engineers and architects. (3) 10. Article 2 of the fee scale annexed to that law provides for four types of fees: (1) percentage fees, which are fixed on the basis of the value of the works; (2) unit fees, fixed on the basis of the unit of measurement; (3) time-basis fees, determined on the basis of the time spent; and (4) discretionary fees, which are left entirely to the professional. 11. Article 5 of the abovementioned fee scale lists the services for which fees may be fixed at the discretion of the professional. 12. Subsequently, the procedure for the fixing of fees was amended by Law No 143 of 4 March 1958 regulating the fee scale for engineers and architects. That law provides that the scales of fees and emoluments are to be laid down by a decree of the Minister for Justice, by agreement with the Minister for Public Works, on a proposal from the National Councils of the associations of engineers and architects. 13. However, the fee scales laid down according to that new procedure are not applicable to the services referred to in Article 5 of the scale annexed to Law No 143/49. In respect of those services, architects still enjoy complete discretion in fixing their fees. C - The National Council of the Association of Architects 14. As regards the National Council of the Association of Architects, Article 5 of Law No 1395 of 24 June 1923 (4) provides that architects enrolled on the register are to elect their own Association Council. One of the functions of that council is to give, on request, an opinion on professional disputes and on the settlement of expenses and fees. II - Facts and procedure 15. Ms Rossi practises as an architect in Italy. 16. By an application lodged on 29 October 1998, she applied to the Giudice di Pace di Genova for the issue of an order against Mr Conte requiring payment of ITL 2 550 000 in respect of certain professional services. In accordance with Article 636 of the Code, Ms Rossi attached to her application a fee invoice drawn up on the basis of the discretionary fees provided for under Articles 2 and 5 of the fee scale annexed to Law No 143/49. She also produced a confirmatory opinion settling the fees, given by the Council of the Association of Architects of Genoa. 17. On 30 October 1998, the Giudice di Pace di Genova made an order granting Ms Rossi's application. 18. On 18 December 1998, Mr Conte applied to have that order set aside. He contended that the order was null and void on the ground that the opinion settling the fee, given by the Council of the Association of Architects of Genoa, constituted a decision by an association of undertakings contrary to Article 85 of the Treaty. Mr Conte requested that the national court refer to the Court of Justice for a preliminary ruling a number of questions relating to the compatibility of the Italian scheme with Community law. 19. In the order for reference, (5) the Giudice di Pace di Genova states that an interpretation of Articles 5 and 85 of the Treaty is necessary in order to enable it to determine both the objection that the order is null and void and the merits of the application. 20. In that regard, it states (6) that, in the past, the power to determine tariffs was vested in individual professional associations. Following a reform in 1944, that power was transferred to the National Councils of the professional associations established under the auspices of the Ministry of Justice. 21. As regards the fee scale at issue in the main proceedings, the national court points out that the National Councils, elected by the assembly of those enrolled on the register and thus representative of engineers and architects at national level, have drawn up a consolidated scale of fees which, after mere approval by the Minister for Public Works, was incorporated in Law No 143 of 2 March 1949. (7) 22. The Giudice di Pace di Genova adds that Article 636 of the Code ... provides that the opinion of the competent professional association is binding upon the court to which an application for the issue of a payment order is made, so that the court is not authorised to make any assessment as to the reasonableness of the fees settled by the Association Council's fee committee. (8) III - The questions referred for preliminary ruling 23. Consequently, the Italian court decided to stay proceedings and to refer the following questions for a preliminary ruling: (1) Is the concept of an undertaking set out in the decisions of the Commission and the case-law of the Court of Justice applicable to those carrying on a professional activity as architects and, if so, are architects' professional associations to be regarded as associations of undertakings within the meaning of Article 85(1) of the Treaty? (2) Are the combined provisions of Articles 5 and 85 of the EC Treaty compatible with a national rule which simply gives a fee scale drawn up and determined by the national associations of engineers and architects the force of law where: (a) the final measure of the public authorities is essentially an act confirming the independently expressed will of the national councils of the associations concerned; or (b) the final measures of the public authorities essentially delegate to the members of the associations concerned the power to set the fee scale at their own discretion, even after the professional services requested of them have been performed; or (c) the final measures of the public authorities do not contain any indication of being in the public interest or any upper and lower limits with which the fee scale set at the practitioner's discretion must comply; or (d) the final measures of the public authorities do not require professionals to communicate in advance and/or publicise in any other way the fee scales which they intend to apply for the services requested of them? (3) Are the combined provisions of Articles 5 and 85 of the Treaty compatible with national legislation which, without requiring public-interest considerations to be taken into account, confers on a fee committee set up by the association council and composed solely of association members the power to adopt a discretionary measure settling the fee, even where it confirms the fee set by the member at his own discretion, the force of which is such as to bind the court to make an order for payment in accordance with the measure adopted by the council itself settling the fee? IV - The reinforcement of the effects of an agreement, decision or concerted practice (Questions 1 and 2) 24. The first question referred for a preliminary ruling relates to the interpretation of Article 85(1) of the Treaty. The national court seeks to ascertain whether architects practising in Italy and the Italian professional associations of architects fall within the scope of that provision. 25. The second question referred for a preliminary ruling relates to the compatibility of Law No 143/49 with Community law. The Giudice di Pace di Genova seeks to ascertain whether the Italian authorities have infringed Articles 5 and 85 of the Treaty on the ground that, by enacting Law No 143/49, they have reinforced the effects of an agreement, decision or concerted practice within the meaning of Article 85 of the Treaty. In that regard, the national court points out that the national councils ... of engineers and architects ... have drawn up a consolidated scale of fees which ... was incorporated in Law No 143 of 2 March 1949. (9) 26. These two questions must be examined together. Their purpose, in substance, is to determine whether Articles 5 and 85 of the Treaty preclude a Member State from adopting, on the basis of a text drawn up by a professional association of architects, a measure of a legislative nature which provides that the members of the profession are free to fix the fees for the services which they perform. 27. It should be borne in mind that the case-law of the Court of Justice as it now stands requires, if a legislative or regulatory measure is to be declared incompatible with Articles 5 and 85 of the Treaty, that the State measure be preceded by an agreement, decision or concerted practice which is itself contrary to Article 85(1) of the Treaty. (10) For the purpose of determining whether the Italian authorities have infringed Articles 5 and 85 of the Treaty, it is thus necessary first of all to examine whether the conditions for the application of Article 85(1) of the Treaty are satisfied in the present case. 28. Article 85(1) of the Treaty prohibits all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market. 29. Just like the Commission, (11) I think that the prohibition laid down by that provision is not applicable in this case. 30. It is common ground that the present case relates to the provisions of Law No 143/49 on professionals' discretionary fees. (12) 31. It is clear from the documents before the Court that discretionary fees give architects a discretion in setting fees over a wide range of professional services, which may ... include those at issue in these proceedings. (13) In respect of the services referred to in Article 5 of the fee scale at issue, the law does not even lay down upper and lower limits within which the professional may exercise his discretion. (14) The professional and his client are thus free to agree fees without having to be bound by upper or lower limits. (15) 32. In the light of those factors, I do not see how the provisions of the text adopted by the National Council of the Association of Architects on discretionary fees are such as to restrict competition within the meaning of Article 85(1) of the Treaty. As the Commission has pointed out, (16) if the professional is entirely free to fix the price of his services and the client is equally free to accept it, negotiate it or approach another professional, the text at issue ensures free competition in respect of the services referred to. 33. Moreover, according to the Court's case-law as it now stands, (17) where an agreement, a decision by an association of undertakings or a concerted practice is not contrary to Article 85(1) of the Treaty, the State measure which reinforces its effects is automatically compatible with Articles 5 and 85 of the Treaty. 34. In accordance with that case-law, it must therefore be concluded that Articles 5 and 85 of the Treaty do not preclude the application of the provisions of Law No 143/49 on discretionary fees. The provisions at issue are compatible with Articles 5 and 85 of the Treaty on the ground that the text drawn up by the National Council of the Association of Architects is not contrary to Article 85(1) of the Treaty. (18) 35. In those circumstances, it is not necessary to know whether architects practising in Italy constitute undertakings for the purposes of Community competition law. Nor is it necessary to determine whether the concept of an association of undertakings in Article 85(1) of the Treaty is applicable to the National Council of the Association of Architects. The Court may, without adjudicating on those matters, declare that Articles 5 and 85 of the Treaty do not preclude the application of the provisions of Law No 143/49 on discretionary fees in respect of the services performed by architects. (19) V - The opinion of the Council of the Association on fees (Question 3) 36. The third question referred for a preliminary ruling relates to the compatibility of Article 636 of the Code with Community law. The national court seeks to ascertain whether Articles 5 and 85 of the Treaty preclude the application of a legislative measure which, in the context of a summary procedure for the recovery of debts relating to an architect's fees, requires the national court to follow the opinion of the competent professional association in relation to the taxation of the fees. 37. The Giudice di Pace di Genova thereby seeks to ascertain whether, in the context of proceedings to set aside the payment order, it may disregard the opinion of the Council of the Association of Architects of Genoa on the taxation of Ms Rossi's fees. 38. It should be borne in mind that, according to settled case-law, the procedure laid down in Article 234 EC is an instrument for cooperation between the Court of Justice and the national courts. (20) In the context of that cooperation, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. (21) Consequently, where the questions submitted by the national court concern the interpretation of Community law, the Court of Justice is, in principle, bound to give a ruling. (22) However, the Court of Justice has also held that, in exceptional cases, it may, in order to determine whether it has jurisdiction, examine the conditions in which the case has been referred to it by the national court. (23) The Court may refuse to rule on a question submitted by a national court where it is quite obvious that the ruling sought by that court on the interpretation of Community law bears no relation to the facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. (24) 39. Although Question 3 relates to the interpretation of Community law (Articles 5 and 85 of the Treaty), I consider that it must be declared inadmissible pursuant to the case-law cited above. 40. It is common ground that, in the present case, the national court is required to give a ruling during the second stage of the procedure for the recovery of debts prescribed by Article 633 et seq. of the Code, namely the stage inter partes which began when Mr Conte applied to have the payment order set aside. It is also common ground that the national court seeks to ascertain whether, in the context of that stage of the procedure, it is entitled to disregard the opinion of the Council of the Association of Architects of Genoa for the purpose of determining Ms Rossi's fees. 41. It is clear from the documents before the Court that, under Italian law, the national court is not bound, in the second stage of the procedure for the recovery of debts, to follow the opinion given by the Council of the Association. On that point, the Italian Government has clearly stated that, in that stage of the procedure, the debtor is able to challenge both the principle and the quantum of the debt at issue, without the court hearing the application to set aside the order being in the least bound to follow the opinion of the professional association. (25) Similarly, the Commission stated that the court is not bound by [the opinion] in proceedings to have the payment order set aside. (26) Indeed, the material at my disposal confirms that, according to the settled case-law of the Corte suprema di cassazione (Italian Court of Cassation), (27) the opinion of the professional association binds the court only at the first, ex parte stage of the procedure for the recovery of debts. By contrast, that opinion ceases to be binding where the debtor initiates proceedings to have the order set aside in order to challenge the existence and amount of the debt claimed by the professional. 42. In those circumstances, I consider that the last question referred by the Giudice di Pace di Genova for a preliminary ruling is purely hypothetical. I thus propose that the Court declare it inadmissible pursuant to the case-law cited above. VI - Conclusion 43. In the light of the foregoing, I propose that the Court reply as follows to the first two questions referred by the Giudice di Pace di Genova for a preliminary ruling: Articles 5 and 85 of the EC Treaty (now Articles 10 EC and 81 EC) do not preclude a Member State from adopting, on the basis of a text drawn up by a professional association of architects, a measure of a legislative nature which provides that the members of the profession are free to fix the fees for the services which they perform. 1: - Original language: French. 2: - Article 641 of the Code. 3: - GURI No 90 of 19 April 1949, Ordinary Supplement (Law No 143/49). 4: - GURI No 157 of 5 July 1923. 5: - English translation (pp. 4 to 7). 6: - Ibid., p. 5. 7: - Idem. 8: - Ibid., p. 6. 9: - Ibid., p. 5. 10: - See, in particular, Case C-2/91 Meng [1993] ECR I-5751, paragraphs 16 and 17; Case C-245/91 Ohra Schadeverzekeringen [1993] ECR I-5851, paragraph 12; Case C-35/96 Commission v Italy [1998] ECR I-3851; Case C-266/96 Corsica Ferries France [1998] ECR I-3949, paragraphs 50 to 54; Case C-67/96 Albany [1999] ECR I-5751, paragraph 66; and Joined Cases C-180/98 to C-184/98 Pavlov and Others [2000] ECR I-6451, paragraphs 99 and 100. 11: - The Commission's written observations (point 25). 12: - See the order for reference (English translation, p. 6) and point 16 above. 13: - Order for reference (English translation, pp. 5 and 6). 14: - Ibid., p. 6. 15: - The Italian Government's written observations (p. 9). 16: - The Commission's written observations (point 25). 17: - See, in particular, Corsica Ferries France, paragraphs 50 to 54; Albany, paragraph 66; and Pavlov, paragraphs 99 and 100. 18: - In the Opinion which I delivered on 10 July 2001 in Case C-35/99 Arduino [2001] ECR I-5409, points 86 to 97, I maintained that it had to be possible to declare that a State measure appreciably restricts competition even if the conduct of the economic operators which is at the root of the State's action is not, of itself, contrary to Article 85(1) of the Treaty. However, even according to that argument, the provisions of Law No 143/49 on discretionary fees would be compatible with Articles 5 and 85 since they do not represent any restriction of competition on the Italian market. 19: - At the hearing, Mr Conte submitted that, even in respect of discretionary fees, the National Council of the Association of Architects has issued internal circulars designed to fix the price of the services performed by professionals. According to Mr Conte, those circulars abolish the freedom conferred on architects by legislation and thus constitute decisions by an association of undertakings contrary to Article 85(1) of the Treaty. On that point, I would note that the procedure referred to in Article 234 EC is based on a clear separation of functions between national courts and the Court of Justice, and that any assessment or verification of the facts of the case falls within the exclusive jurisdiction of the national court (see, inter alia, Case 13/68 Salgoil [1968] ECR 453, 459; Case 104/77 Oehlschläger [1978] ECR 791, paragraph 4; Case C-235/95 Dumon and Froment [1998] ECR I-4531, paragraph 25; and Joined Cases C-175/98 and C-177/98 Lirussi and Bizzaro [1999] ECR I-6881, paragraph 37). The Court has jurisdiction solely to adjudicate on the interpretation or validity of a Community provision on the basis of the facts outlined to it by the national court (see, inter alia, Oehlschläger, paragraph 4; Case C-30/93 AC-ATEL Electronics Vertriebs [1994] ECR I-2305, paragraph 16; and Case C-352/95 Phytheron International [1997] ECR I-1729, paragraph 11). At no point in the present proceedings did the Giudice di Pace - or indeed any of the other parties involved - refer to the existence of such internal circulars. The facts raised by Mr Conte cannot therefore be validly examined. 20: - See, inter alia, Case 16/65 Schwarze [1965] ECR 877, 886. 21: - See, in particular, Case C-415/93 Bosman [1995] ECR I-4921, paragraph 59. 22: - Idem. 23: - Case 244/80 Foglia [1981] ECR 3045, paragraph 21. 24: - See, inter alia, Case C-36/99 Idéal Tourisme [2000] ECR I-6049, paragraph 20; Case C-322/98 Kachelmann [2000] ECR I-7505, paragraph 17; and Case C-340/99 TNT Traco [2001] ECR I-4109, paragraph 31. 25: - The Italian Government's written observations (p. 12). 26: - The Commission's written observations, p. 18. 27: - See, in particular, the judgments of the Corte suprema di cassazione of 8 April 1975, No 1276; of 12 July 1975, No 2775; of 24 August 1994, No 7504; of 30 October 1996, No 9514; and of 7 May 1997, No 3972. The summary of these judgments may be consulted in the database Italgiure, established by the Centro elettronico di documentazione of the Corte suprema di cassazione.