C 299/16 EN 16.10.1999 Official Journal of the European Communities
2. If the answers to the first question indicate that a rule such way in which those concerned actually wish to model their
co-operation, with either the provisions on the right of as the [Samenwerkingsverordening — Regulation on the
formation of cooperative associations — 1993] is to be establishment or with those relating to the freedom to
provide services? regarded as a decision of an association of undertakings
within the meaning of Article 85(1) [now Article 81(1)] ofthe EC Treaty, is such a decision, in so far as it adopts8. Does a prohibition on integrated co-operative associationsuniversally binding rules, designed to safeguard the inde-between lawyers and accountants such as the one inpendence and loyalty to the client of lawyers providingquestion constitute a restriction of the right of establish-legal assistance, on the formation of co-operative associ-ment or the freedom to provide services, or both?ations such as the one in question to be regarded as having
as its object or effect the restriction of competition within
9. If it follows from the answer to the previous question that the common market and in that respect affecting trade
one or both of the abovementioned restrictions exists, is between the Member States? What criteria of Community
the restriction in question justified on the ground that it law are relevant to the determination of that issue?
constitutes merely a ‘selling arrangement’ within the
meaning of Keck and Mithouard and therefore there is nodiscrimination, or on the ground that it satisfies the criteria3. Is the term ‘undertaking’ in Article 86 (now Article 82) ofthat have been developed in that respect by the Court ofthe EC Treaty to be interpreted as meaning that where anJustice in other judgments, in particular Gebhard?institution such as the Bar Association must be regarded
as an association of undertakings, that institution mustalso be considered to be an undertaking or group ofundertakings for the purposes of that provision, even
though it pursues no economic activity itself?
4. If the previous question is answered in the affirmative and
it must be held that an institution such as the Bar
Association enjoys a dominant position, does such an Action brought on 13 August 1999 by the Italian Republic
against the Commission of the European Communities institution abuse that position if it regulates the relation-
ships of the lawyers affiliated to it with others on themarket in legal services in a manner which restricts(Case C-310/99)competition?
(1999/C 299/18)
5. If an institution such as the Bar Association is to be
regarded as a whole as an association of undertakings forAn action against the Commission of the European Communi-the purposes of Community competition law, is Articleties was brought before the Court of Justice of the European90(2) [now Article 86(2)] of the EC Treaty to be interpretedCommunities on 13 August 1999 by the Italian Republic,as extending to an institution such as the Bar Associationrepresented by its Agent Professor Umberto Leanza, assistedwhich lays down universally binding rules, designed toby Oscar Fiumara, Avvocato dello Stato, with an addresssafeguard the independence and loyalty to the client offor service in Luxembourg at the Italian Embassy, 5 Ruelawyers providing legal assistance, on co-operationMarie-Adelaïde.between lawyers and members of other professions?
The applicant claims that the Court should:
6. If an institution such as the Bar Association is to be
regarded as an association of undertakings or an undertak-— annul the decision of the Commission of the Europeaning or group of undertakings, do Article 3g, the secondCommunities of 11 May 1999 No C(1999)1364 final (
1),paragraph of Article 5 and Articles 85 and 86 (nowin so far as it is contested in the present action;Articles 3g, 10, 81 and 82) of the EC Treaty preclude a
Member State from providing that (an agency of) that
— in the alternative, annul the said decision in so far as it institution may adopt rules concerning inter alia co-
provides for the recovery of sums constituting incompat- operation between lawyers and members of other pro-
ible aid; fessions when review by the relevant public authority of
such rules is limited to the power to annul such a rulewithout the authority’s being able to adopt a rule in its— order the Commission of the European Communities tostead?pay the costs.
7. Are both the Treaty provisions on the right of establish-Pleas in law and main argumentsment and those on the freedom to provide services
applicable to a prohibition on co-operation betweenlawyers and accountants such as that in question, or is the 1. The Commission’s decision appears to be open to challenge
on the grounds of abuse of power and inadequate (illogical) EC Treaty to be interpreted as meaning that such a
prohibition must comply, depending for example on the statement of reasons in relation to the definition of the
16.10.1999 EN C 299/17 Official Journal of the European Communities
class of ‘young persons’ comprising the ‘weaker segment’ Action brought on 16 August 1999 by the Commission
of the European Communities against the Italian Republic of the employment market. Whilst the decision quotes
statistics and the observations of the Italian authoritieswhich show that, given the specific characteristics ofunemployment among young persons in Italy, and particu-
(Case C-312/99) larly in Southern Italy, that class includes persons in the
age group up to 32 years, the Commission reached a
different conclusion, sanctioning the extension of the classof ‘young persons’ only to those aged under 25, or 29 in
(1999/C 299/19) the case of graduates.
2. The decision appears to be invalidated by factors which areAn action against the Italian Republic was brought before theself-evident: unlawfulness, misuse of power and deficiencyCourt of Justice of the European Communities on 16 August(inadequacy) of the statement of reasons as regards the1999 by the Commission of the European Communities,‘quantification’ of the aid considered permissible.represented by Antonio Aresu, of its Legal Service, acting as
Agent, with an address for service in Luxembourg at the officeof Carlos Goméz de la Cruz, Wagner Centre, Rue Alcide de3. The decision appears to be open to challenge on theGasperi.ground of the deficiency (illogicality and inadequacy) of
the statement of reasons in relation to the ‘quantification’of the aid not considered permissible. The same irregulari-
ties are to be found in relation to the measures underThe applicant claims that the Court should:Article 15 of Law 196/97, concerning which the Com-
mission observes that the conversion of fixed term CFLs(Contratti di Formazione e Lavoro or Training and Employ-1. declare that, by failing to adopt the laws, regulationsment Contracts) into contracts of indefinite duration doesand administrative provisions necessary to comply withnot create additional jobs, since the jobs themselves alreadyCommission Directive 97/59/EC of 7 October 1997 (
1)existed, even though they were not permanent.and Commission Directive 97/65/EC of 26 November
1997 (2) adapting, for the third time, to technical progress
Council Directive 90/679/EEC on the protection of work-4. The compatibility of the measure with Community legis-ers from risks related to exposure to biological agents atlation — under which aid ‘to promote the economicwork (3), the Italian Republic has failed to fulfil its obli-development of areas where the standard of living isgations under those directives;abnormally low or where there is serious underemploy-
ment’ may be considered to be compatible within the
meaning of Article 92(3)(a) of the EC Treaty (now Article2. order the Italian Republic to pay the costs of the action.87(3)(a) EC) — is not assessed in depth, with the result
that the said provision has been infringed and wronglyapplied and the statement of reasons is defective (inad-
equate and inconsistent).
Pleas in law and main arguments
5. Article 92 of the EC Treaty (now Article 87 EC) has been
infringed, or in any event the statement of reasons isclearly defective (inadequate) in that no account is taken ofArticle 189 of the EC Treaty (now Article 249 EC), under the effect of the aid considered incompatible upon tradewhich a directive is binding, as to the result to be achieved, within the Community or on competition.upon each Member State to which it is addressed, imposes an
obligation upon the Member States to comply with the
time-limits for implementation laid down in the directives.6. As to the operative part of the contested decision whichThose time-limits expired on 31 March 1998 and 30 Juneconcerns the recovery of the aid deemed incompatible, the1998 respectively without the Italian Republic having adoptedstatement of reasons is defective (inadequate) as regardsthe necessary legislation to comply with the directives referredthe necessity or at least the appropriateness of effectingto in the form of order sought by the Commission.recovery.
(1) OJ L 282 of 15.10.1997, p. 33.
(2) OJ L 335 of 6.12.1997, p. 17.(1) Concerning the scheme for the grant by Italy of aid for measures(3) OJ L 374 of 31.12.1990, p. 1.to promote employment.