Case C-298/04: Reference for a preliminary ruling by the Giudice di Pace di Bitonto by order of that court of 30 June 2004 in the case of Pasqualina Murgolo against Assitalia Assicurazioni SpA
Date: 2004-10-09
Institutions: Court of Justice
Subjects: competition law, damage, exchange of information, indemnification, insurance company, interpretation of the law, motor vehicle insurance, restriction on competition, restrictive trade practice

C 251/4

EN

Official Journal of the European Union

9.10.2004

2. Is Article 81 of the EC Treaty to be interpreted as meaning
that it entitles third parties who have a relevant legal interest
to rely on the invalidity of an agreement or practice prohib-
ited by that Community provision and claim damages for
the harm suffered where there is a causal relationship
between the agreement or concerted practice and the harm?

3. Is Article 81 of the Treaty to be interpreted as meaning that
for the purposes of the limitation period for bringing an
action for damages based thereon, time begins to run from
the day on which the agreement or concerted practice was
adopted or the day on which the agreement or concerted
practice came to an end?

4. Is Article 81 of the Treaty to be interpreted as meaning that
where the national court sees that the damages that can be
awarded on the basis of national law are lower than the
economic advantage gained by the infringing party to the
prohibited agreement or concerted practice, should also
award of its own motion punitive damages to the injured
third party in order to make the compensable amount
higher than the advantage gained by the infringing party
and deter the adoption of agreements or concerted practices
prohibited under Article 81 of the Treaty?

Reference for a preliminary ruling by the Giudice di Pace
di Bitonto by order of that court of 30 June 2004 in the
case of Nicolò Tricarico against Assitalia Assicurazioni
SpA

(Case C-297/04)

(2004/C 251/07)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Giudice di Pace di Bitonto
(Magistrates' Court, Bitonto, Italy) of 30 June 2004, received at
the Court Registry on 13 July 2004, for a preliminary ruling in
the case of Nicolò Tricarico against Assitalia Assicurazioni SpA
on the following questions:

1. Is Article 81 of the Treaty to be interpreted as meaning that
it renders void an agreement or concerted practice between
insurance companies consisting of a mutual exchange of
information which makes it possible to increase RC auto
insurance policy premiums which are not
justified by
market conditions, including in view of the fact that under-
takings from several Member States took part in the agree-
ment or concerted practice?

2. Is Article 81 of the EC Treaty to be interpreted as meaning
that it entitles third parties who have a relevant legal interest
to rely on the invalidity of an agreement or practice prohib-
ited by that Community provision and claim damages for

the harm suffered where there is a causal relationship
between the agreement or concerted practice and the harm?

3. Is Article 81 of the Treaty to be interpreted as meaning that
for the purposes of the limitation period for bringing an
action for damages based thereon, time begins to run from
the day on which the agreement or concerted practice was
adopted or the day on which the agreement or concerted
practice came to an end?

4. Is Article 81 of the Treaty to be interpreted as meaning that
where the national court sees that the damages that can be
awarded on the basis of national
law are lower than the
economic advantage gained by the infringing party to the
prohibited agreement or concerted practice, should also
award of its own motion punitive damages to the injured
third party in order to make the compensable amount
higher than the advantage gained by the infringing party
and deter the adoption of agreements or concerted practices
prohibited under Article 81 of the Treaty?

Reference for a preliminary ruling by the Giudice di Pace
di Bitonto by order of that court of 30 June 2004 in the
case of Pasqualina Murgolo against Assitalia Assicurazioni
SpA

(Case C-298/04)

(2004/C 251/08)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Giudice di Pace di Bitonto
(Magistrates' Court, Bitonto, Italy) of 30 June 2004, received at
the Court Registry on 13 July 2004, for a preliminary ruling in
the case of Pasqualina Murgolo against Assitalia Assicurazioni
SpA on the following questions:

1. Is Article 81 of the Treaty to be interpreted as meaning that
it renders void an agreement or concerted practice between
insurance companies consisting of a mutual exchange of
information which makes it possible to increase RC auto
insurance policy premiums which are not
justified by
market conditions, including in view of the fact that under-
takings from several Member States took part in the agree-
ment or concerted practice?

2. Is Article 81 of the EC Treaty to be interpreted as meaning
that it precludes the application of a national provision
similar to that in Article 33 of Italian Law 287/90 under
which a claim for damages for infringement of Community
and national provisions for anti-competitive agreements
must be made also by third parties before a court other
than that which usually has jurisdiction for claims of similar
value, thus involving a considerable increase in costs and
time?

9.10.2004

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Official Journal of the European Union

C 251/5

3. Is Article 81 of the EC Treaty to be interpreted as meaning
that it entitles third parties who have a relevant legal interest
to rely on the invalidity of an agreement or practice prohib-
ited by that Community provision and claim damages for
the harm suffered where there is a causal relationship
between the agreement or concerted practice and the harm?

4. Is Article 81 of the Treaty to be interpreted as meaning that
for the purposes of the limitation period for bringing an
action for damages based thereon, time begins to run from
the day on which the agreement or concerted practice was
adopted or the day on which the agreement or concerted
practice came to an end?

5. Is Article 81 of the Treaty to be interpreted as meaning that
where the national court sees that the damages that can be
awarded on the basis of national law are lower than the
economic advantage gained by the infringing party to the
prohibited agreement or concerted practice, should also
award of its own motion punitive damages to the injured
third party in order to make the compensable amount
higher than the advantage gained by the infringing party
and deter the adoption of agreements or concerted practices
prohibited under Article 81 of the Treaty?

Reference for a preliminary ruling by the Szombathelyi
Városi Bíróság by order of that court of 10 June 2004 in
the case Ynos Kft. against János Varga

(Case C-302/04)

(2004/C 251/09)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of
the Szombathelyi Városi
Bíróság (Szombathely City Court, Hungary), of 10 June 2004,
which was received at the Court Registry on 19 July 2004, for
a preliminary ruling in the case of Ynos Kft. against János
Varga.

The Szombathelyi Városi Bíróság asks the Court of Justice to
give a preliminary ruling on the following questions:

1. May Article 6(1) of Council Directive 93/13/EEC (1) of 5
April 1993 on unfair terms in consumer contracts, which
provides that Member States are to lay down that unfair
terms used in a contract concluded with a consumer by a
seller or supplier are, as provided for under their national
law, not to be binding on the consumer, be interpreted as
meaning that it may constitute the basis of a national provi-
sion such as Article 209(1) of Law No IV of 1959 on the
Civil Code, applicable when a general condition in a
contract stating that unfair terms do not cease to bind the

consumer ipso jure, but do so only where an express
declaration to that effect is made, that is to say, when they
are successfully contested, is found to be unfair?

2. Does

it

follow from that provision of

the Directive,
according to which the contract is to continue to bind the
parties upon those terms if it is capable of continuing in
existence without the unfair terms, that where the unfair
terms inserted by a seller or supplier are not binding on the
consumer as provided for under national law, but where in
the absence of those terms, which form part of the contract,
the seller or supplier would not have concluded the contract
with the consumer, the validity of the contract as a whole
cannot be affected if it is capable of continuing in existence
without the unfair terms?

3. From the point of view of the application of Community
is it relevant that the main dispute arose before the
law,
accession of
the Republic of Hungary to the European
Union, but after the adaptation of its domestic law to the
Directive?

(1) OJ L 95, p. 29.

Reference for a preliminary ruling by the Commissione
Tributaria Provinciale di Pordenone — Second Chamber
— by order of that court of 14 July 2004 in the case of
Banca Popolare Friuladria SpA against Agenzia Entrate
Ufficio Pordenone

(Case C-336/04)

(2004/C 251/10)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Commissione Tributaria
Provinciale di Pordenone (Provincial Tax Commission of Porde-
none) (Italy) of 14 July 2004, received at the Court Registry on
2 August 2004, for a preliminary ruling in the case of Banca
Popolare Friuladria SpA against Agenzia Entrate Ufficio Porde-
none on the following questions:

1. Is Commission Decision 2002/581/EC (1) of 11 December
2001 (OJ 2002 L 184, p. 27) invalid and incompatible with
Community law, in that the provisions of Law 461/98 and
the related Legislative Decree 153/99 regarding banks are
compatible with the Common Market, contrary to the
opinion of the European Commission, or do they in any
case fall within the scope of the derogations provided for by
Article 87(3)(b) and (c) of the EC Treaty?