Opinion of the Advocate General — ECLI:EU:C:2001:389
Date: 2001-07-10
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary of the Judgment 
1. Preliminary rulings — jurisdiction of the Court — Limits — Manifestly irrelevant 
questions and questions regarding hypothetical problems in a context which precludes 
any useful answer — Questions not related to the purpose of the main proceedings 
(EC Treaty, Art. 177 (now Art. 234 EC)) 
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SUMMARY — CASE C-35/99 
2. Competition — Community rules — Obligations of the Member States — Rules 
designed to reinforce the effects of preexisting agreements — Definition — Fee tariff 
proposed by a professional organisation and approved by the Minister — Exclu­
sion — Conditions 
(EC Treaty, Arts 5 and 85 (now Arts 10 EC and 81 EC)) 
1. In the context of the cooperation 
between the Court of Justice and the 
national courts provided for by 
Article 177 of the Treaty (now 
Article 234 EC) it is solely for the 
national court before which the dispute 
has been brought, and which must 
assume responsibility for the sub­
sequent judicial decision, to determine 
in the light of the particular circum­
stances of the case 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. Consequently, where the ques­
tions submitted concern the interpre­
tation of Community law, the Court of 
Justice is, in principle, bound to give a 
ruling. 
Nevertheless, in exceptional circum­
stances, the Court can examine the 
conditions in which the case was 
referred to it by the national court, in 
order to assess whether it has jurisdic­
tion. The Court may refuse to rule on a 
question referred for a preliminary 
ruling by a national court only where 
it is quite obvious that the interpre­
tation of Community law that is sought 
bears no relation to the actual 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. 
(see paras 24-25) 
2. Although Article 85 of the Treaty (now 
Article 81 EC) is, in itself, concerned 
solely with the conduct of undertakings 
and not with laws or regulations ema­
nating from Member States, that 
article, read in conjunction with 
Article 5 of the Treaty (now Article 10 
EC), none the less requires the Member 
States not to introduce or maintain in 
force measures, even of a legislative or 
regulatory nature, which may render 
ineffective the competition rules appli­
cable to undertakings. Articles 5 and 
85 of the Treaty are infringed where a 
Member State requires or favours the 
adoption of agreements, decisions or 
concerted practices contrary to 
Article 85 or reinforces their effects, 
or where it divests its own rules of the 
character of legislation by delegating to 
private economic operators responsi­
bility for taking decisions affecting the 
economic sphere. 
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ARDUINO 
In that regard, a Member State cannot 
be said to have delegated to private 
economic operators responsibility for 
taking decisions affecting the economic 
sphere, which would have the effect of 
depriving the provisions of the char­
acter of legislation, where, first, the 
professional organisation concerned is 
responsible only for producing a draft 
tariff which, as such, is not compul­
sory, since the Minister has the power 
to have the draft amended by that 
organisation, and, second, the national 
legislation provides that fees are to be 
settled by the courts on the basis of the 
criteria referred to in that legislation 
and, moreover, in certain exceptional 
circumstances and by duly reasoned 
decision, authorises the court to depart 
from the maximum and minimum 
limits fixed. In those circumstances, 
nor is the Member State open to the 
criticism that it requires or encourages 
the adoption of agreements, decisions 
or concerted practices contrary to 
Article 85 of the Treaty or reinforces 
their effects. 
It follows that Articles 5 and 85 of the 
Treaty do not preclude a Member State 
from adopting, in the context of such a 
procedure, a law or regulation which 
approves, on the basis of a draft 
produced by a professional organi­
sation, a tariff fixing minimum and 
maximum fees for members of the 
profession. 
(see paras 34-35, 41-44, operative part) 
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