Joined Cases C-94/04 and C-202/04: Judgment of the Court (Grand Chamber) of 5 December 2006 (references for a preliminary ruling from the Corte d'appello di Torino and the Tribunale di Roma — Italy) — Federico Cipolla v Rosaria Fazari, née Portolese, C-94/04) and Stefano Macrino, Claudia Capodarte v Roberto Meloni (C-202/04) (Community competition rules — National rules concerning lawyers' fees — Setting of professional scales of charges — Freedom to provide services)
Date: 2006-12-30
Institutions: Court of Justice
Subjects: EU law - national law, competition law, freedom to provide services, income in addition to normal pay, interpretation of the law, lawyer

C 331/2

EN

Official Journal of the European Union

30.12.2006

Re:

Failure by a Member State to fulfil obligations — Failure to
adopt, within the prescribed period, the measures necessary to
ensure the application of Articles 2 and 3 of the Commission
decision of 11 July 2001 concerning the State aid scheme
implemented by Spain in favour of undertakings in the province
of Álava in the form of a tax credit of 45 % of the investments
made (notified under No C(2001)1759) (OJ 2002 L 296, p. 1)
— Tax measures in the historic territory of Álava — Obligation
to recover aid already paid and obligation to abolish future
payments

Judgment of the Court (Grand Chamber) of 5 December
2006 (references for a preliminary ruling from the Corte
d'appello di Torino and the Tribunale di Roma — Italy) —
Federico Cipolla v Rosaria Fazari, née Portolese, C-94/04)
and Stefano Macrino, Claudia Capodarte v Roberto Meloni
(C-202/04)

(Joined Cases C-94/04 and C-202/04) (1)

(Community competition rules — National rules concerning
lawyers' fees — Setting of professional scales of charges —
Freedom to provide services)

Operative part of the judgment

The Court:

(2006/C 331/03)

Language of the case: Italian

1. Declares that by failing to adopt within the prescribed period all of
the measures necessary to comply with Articles 2 and 3 of each of
the following decisions:

Referring court

Corte d'appello di Torino

— Commission Decision 2002/820/EC of 11 July 2001 on the
State aid scheme implemented by Spain for firms in Álava in
the form of a tax credit amounting to 45 % of investments
(Case C-485/03);

— Commission Decision 2002/892/EC of 11 July 2001 on the
State aid scheme applied by Spain to certain newly established
firms in Álava (Case C-488/03);

Parties to the main proceedings

Applicants: Federico Cipolla (C-94/04) and Stefano Macrino,
Claudia Capodarte (C-202/04)

Defendants: Rosaria Fazari, née Portolese (C-94/04), Roberto
Meloni (C-202/04)

— Commission Decision 2003/27/EC of 11 July 2001 on the
State aid scheme implemented by Spain for firms in Vizcaya in
the form of a tax credit amounting to 45 % of investments
(Case C-487/03);

Re:

— Commission Decision 2002/806/EC of 11 July 2001 on the
State aid scheme applied by Spain to certain newly established
firms in Vizcaya (Case C-490/03);

— Commission Decision 2002/894/EC of 11 July 2001 on the
State aid scheme implemented by Spain for firms in Guipúzcoa
in the form of a tax credit amounting to 45 % of investments
(Case C-486/03), and

— Commission Decision 2002/540/EC of 11 July 2001 on the
State aid scheme applied by Spain to certain newly established
firms in Guipúzcoa (Case C-489/03),

Reference for a preliminary ruling — Corte d'appello di Torino
— Applicability of Community competition rules to lawyers'
services — National rules laying down scales of fees to which
no exceptions can be made and under which any agreement
between client and lawyer concerning professional fees is void

Reference for a preliminary ruling — Tribunale di Roma —
Comparability with Articles 10 EC and 81 EC of national rules
approving a tariff of fees encompassing services provided by
lawyers in the area of legal representation and legal consultation
which may also be provided by non-lawyers — Tariff proposed
by the professional body of lawyers

the Kingdom of Spain has failed to fulfil
those decisions;

its obligations under

Operative part of the judgment

2. Orders the Kingdom of Spain to pay the costs.

(1) OJ C 21, 24.1.2004.

1. Articles 10 EC, 81 EC and 82 EC do not preclude a Member
State from adopting a legislative measure which approves, on the
basis of a draft produced by a professional body of lawyers such as
the Consiglio nazionale forense (National Lawyers' Council), a scale
fixing a minimum fee for members of the legal profession from
which there can generally be no derogation in respect of either
services reserved to those members or those, such as out-of-court
services, which may also be provided by any other economic operator
not subject to that scale.

30.12.2006

EN

Official Journal of the European Union

C 331/3

2. Legislation containing an absolute prohibition of derogation, by
agreement, from the minimum fees set by a scale of lawyers' fees,
such as that at issue in the main proceedings, for services which are
(a) court services and (b) reserved to lawyers constitutes a restriction
on freedom to provide services laid down in Article 49 EC. It is for
in the
the national court to determine whether such legislation,
light of the detailed rules for its application, actually serves the
objectives of protection of consumers and the proper administration
of
justice which might justify it and whether the restrictions it
imposes do not appear disproportionate having regard to those
objectives.

2001/29/EC of the European Parliament and of the Council of
22 May 2001 on the harmonisation of copyright and related
rights in the information society, the distribution of a signal by
means of television sets by a hotel to customers staying in its
rooms, whatever technique is used to transmit the signal, constitutes
communication to the public within the meaning of Article 3(1) of
that directive.

2. The private nature of hotel rooms does not preclude the communi-
television sets from constituting
cation of a work by means of
communication to the public within the meaning of Article 3(1) of
Directive 2001/29.

(1) OJ C 94, 17.4.2004.

OJ C 179, 10.7.2004.

(1) OJ C 257, 15.10.2005.

Judgment of the Court (Third Chamber) of 7 December
2006 (reference for a preliminary ruling from the Audi-
encia Provincial de Barcelona — Spain) — Sociedad
General de Autores y Editores de España (SGAE) v Rafael
Hoteles SA

(Case C-306/05) (1)

(Copyright and related rights in the information society —
Directive 2001/29/EC — Article 3 — Concept of communica-
tion to the public — Works communicated by means of televi-
sion sets installed in hotel rooms)

(2006/C 331/04)

Language of the case: Spanish

Judgment of the Court (Grand Chamber) of 12 December
2006 (reference for a preliminary ruling from the High
Court of Justice of England and Wales, Chancery Division,
United Kingdom) — Test Claimants in Class IV of the ACT
Group Litigation v Commissioners of Inland Revenue

(Case C-374/04) (1)

(Freedom of establishment — Free movement of capital —
Corporation tax — Payment of dividends — Tax credit —
Separate treatment of resident and non-resident shareholders
— Bilateral double taxation conventions)

(2006/C 331/05)

Language of the case: English

Referring court

Audiencia Provincial de Barcelona

Referring court

Parties to the main proceedings

High Court of Justice of England and Wales, Chancery Division

Applicant: Sociedad General de Autores y Editores de España
(SGAE)

Parties to the main proceedings

Defendant: Rafael Hoteles SA

Re:

Reference for a preliminary ruling — Audiencia Provincial de
Barcelona — Interpretation of Directive 2001/29/EEC of the
European Parliament and of the Council of 22 May 2001 on
the harmonisation of certain aspects of copyright and related
rights in the information society (OJ 2001 L 167, page 10) —
Meaning of ‘act of communication to the public’ (Article 3 of
the directive) — Meaning of
‘strictly domestic location’ —
Works made available on television sets installed in hotel rooms

Operative part of the judgment

1. While the mere provision of physical facilities does not as such
to communication within the meaning of Directive

amount

Applicants: Test Claimants in Class IV of the ACT Group Litiga-
tion

Defendant: Commissioners of Inland Revenue

Re:

Reference for a preliminary ruling — High Court of Justice of
England and Wales, Chancery Division — National legislation
on corporation tax — Retention at source (‘advance corporation
tax’) applied to the profits distributed by a subsidiary to a parent
company — Tax credit designed to take account of a retention
made upstream — Benefit of the tax credit limited to residents
and to residents of certain other Member States party to a
convention for avoiding double taxation containing a clause to
that effect — Liability of a Member State for breach of Com-
munity law — Form of redress