Case C-409/01: Reference for a preliminary ruling by the Tribunale Civile e Penale di L'Aquila by order of 5 October 2001 in the case of Rolando Salusest v Giovanni Petrucci
Date: 2001-12-08
Institutions: Court of Justice
Subjects: fixing of prices, free competition, income in addition to normal pay, interpretation of the law, lawyer, provision of services

8.12.2001

EN

Official Journal of the European Communities

C 348/19

of health of Community citizens, since according to
recital 11 of the Directive the prohibition is to ensure
that ‘the internal market provisions are not undermined’
(by illegal reimports). The prohibition of manufacture
thus appears, according to its true nature, as a pure
prohibition of export. However, in the opinion of the
German Government, such a measure cannot be based
on Article 95 EC either, since protection against illegal
imports (whether the causes are of a State or private
character) does not fall within the scope of Article 95 EC.
Nor, finally, can Article 95 be an appropriate ground of
competence for a general prohibition of manufacture and
export in view of the aim of preventing ‘evasion’ of the
rules of the internal market, since so comprehensive a
prohibition would be manifestly disproportionate to
achieving the aim pursued. That is because it is almost
exclusively cigarettes manufactured in non-member
countries, not in the Community, which are the object of
illegal imports.

— Article 133 EC is not a proper legal basis for the contested
prohibition of export. The aim of the contested measure
is not in fact the regulation of trade with non-member
countries or the influencing of commerce or trade flows,
but the prevention of illegal reimports. The measure does
not therefore meet the requirements for competence
defined by the Court of Justice in opinions 1/94 and
2/92.

the prohibition of export cannot,

In the alternative: even if the scope of Article 133 EC
were available,
in
the opinion of the German Government, be based on
Article 133, because it restricts disproportionately the
principle of freedom of export to be taken into account
by the Community legislature, and hence infringes the
third paragraph of Article 5 EC. In view of the trivial
extent of reimports of cigarettes manufactured in the
Community, the contested provision is not appropriate
for protecting Community citizens effectively
at all
against health risks caused by illegal imports into the
Community; that aim can only be effectively attained by
a reinforcement of import controls, which are necessary
anyway for combating the evasion of customs duty, are
much more effective, and involve much lesser competitive
disadvantages for Community industry. Since the contest-
ed provision does not constitute an ‘overt’ and ‘specific’
measure of external trade policy, but is intended to ensure
higher health standards in the Community, the reference
to Article 133 EC amounts
to an evasion of
Article 152(4)(c) EC.

— The combination of the above legal bases, each of which
is insufficient on its own, does not confer on them a
more extensive scope.

(1) OJ L 194 of 18.7.2001, p. 26.

Reference for a preliminary ruling by the Tribunale Civile
e Penale di L’Aquila by order of 5 October 2001 in the
case of Rolando Salusest v Giovanni Petrucci

(Case C-409/01)

(2001/C 348/34)

Reference has been made to the Court of Justice of the
European Communities by order of 5 October 2001 by the
Tribunale Civile e Penale di l’Aquila (Civil and Criminal District
Court, L’Aquila), which was received at the Court Registry on
16 October 2001,
for a preliminary ruling in the case
of Rolando Salusest v Giovanni Petrucci on the following
questions:

(a)

Is the provision of binding minimum tariffs contrary to
free competition on the ground that it prevents the free
fixing of fees for a lawyer’s services, as provided for under
Article 81(1)(a) EC, and does it also have the effect
of reinforcing the compartmentalisation of markets at
national level, thereby hindering the economic integration
intended by the Treaty?

Lawyers who are nationals of other EC Member States
and who work in Italy are also required under Article 13
of the Law of 9 February 1982 to comply with the tariff
for legal fees and thus also with the rule prohibiting
differentiation of amounts below a specified minimum
level.

(b) Are Articles 633(1)(2) and 636(1) of the Italian Code of
Civil Procedure, under which a lawyer is authorised to
have his fees determined by the Council of the order to
which he belongs through the adoption of an opinion
binding on his client and on the court (in enforcement
proceedings), allowing him to obtain entitlement based
the professional
on that unilateral determination of
fee pursuant to the abovementioned minimum tariffs,
contrary to free competition on the ground that they
prevent the free fixing of fees for a lawyer’s services, as
provided for under Article 81(1)(a) EC, by reserving such
determination to a body consisting exclusively of lawyers?