Case C-565/08: Action brought on 19 December 2008 — Commission of the European Communities v Italian Republic
Date: 2008-12-19
Institutions: Court of Justice
Subjects: Italy, action for failure to fulfil an obligation, fundamental rights, lawyer, price fixed in advance

C 55/12

EN

Official Journal of the European Union

7.3.2009

— in accordance with Article 6(3) and (4) of Council Direc-
tive 92/43/EEC (2) of 21 May 1992 on the conservation
of natural habitats and of wild fauna and flora, read in
conjunction with Article 7 thereof, with respect to the
separate projects for widening and/or upgrading the
M-501 road corresponding to sections 1, 2 and 4 of the
special protection area for birds ES 0000056 ‘Encinares
del río Alberche y río Cofio’;

Forms of order sought

— Declare that the Italian Republic has failed to fulfil its obliga-
tions under Articles 43 EC and 49 EC by adopting provi-
sions fixing compulsory ceilings for lawyers' fees;

— Order the Italian Republic to pay the costs.

the

and

obligations

— in accordance with Directive 92/43/EEC, interpreted by
the judgments of the Court of Justice of 13 January
2005 in Case C-117/03 and 14 September 2006 in Case
from
C-244/05,
Article 12(1)(b) and (d) of the directive, with respect to
separate projects for widening and/or upgrading the
M-501 road corresponding to section 1 as regards the
site proposed as a site of Community importance
ES 3110005 ‘Cuenca del río Guadarrama’, and sections 2
and 4 regarding the proposed site of Community interest
ES 3110007 ‘Cuenca de los ríos Alberche y Cofio’;

resulting

— order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The action brought by the Commission relates to the projects
approved or, as the case may be, implemented by the Spanish
authorities with respect to the widening and/or upgrading of the
local M-501 road (Community of Madrid). The Commission
the Kingdom of Spain has failed, with
takes the view that
respect to those projects, to fulfil its obligations under Directive
85/337,
in its original or amended version, and Directive
92/43, as interpreted by the judgments of the Court of Justice
of 13 January 2005 in Case C-117/03 and of 14 September
2006 in Case C-244/05.

(1) OJ 1985 L 175, p. 40.
(2) OJ 1992 L 206, p. 7.

Action brought on 19 December 2008 — Commission of
the European Communities v Italian Republic

(Case C-565/08)

(2009/C 55/19)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (repre-
sented by: E. Traversa and L. Prete, acting as Agents)

Defendant: Italian Republic

Pleas in law and main arguments

freedom of

The capping of the fees that may be charged for the court-based
and out-of-court services of lawyers constitutes a restriction on
establishment within the meaning of
the
Article 43 EC, and also a restriction on the freedom to provide
services within the meaning of Article 49 EC. Indeed, a compul-
sory scale of fee ceilings that must be applied, irrespective of the
quality of the service provided, the work required and the costs
incurred, may make the Italian market in legal services unattrac-
tive for
foreign professionals. Lawyers established in other
Member States are therefore discouraged from establishing
themselves in Italy or providing their services there on a
temporary basis.

First, having to adapt to a new (and very complex) fee regime
entails additional costs that may make it more difficult to exer-
cise the fundamental freedoms recognised by the Treaty.

Secondly, fee ceilings represent a further restriction on the free
movement of legal services in the internal market, since they
prevent the quality of the activities carried out by lawyers estab-
lished in Member States other than Italy from being correctly
remunerated; this means that some lawyers, who normally ask
for higher fees than those established under the Italian legisla-
tion on the basis of
the Italian market, are deterred from
providing their services in Italy on a temporary basis or from
establishing themselves in that State.

Lastly, the rigidity of the Italian fee regime prevents lawyers
(including those established abroad) from making special offers
in specific situations and/or to specific clients: for example, a
package of given legal services for a fixed fee, or a number of
legal services provided in several Member States at a common
rate. The Italian legislation may therefore lead the situation of
lawyers established abroad to be less competitive since it
deprives them of an effective means of penetrating the Italian
legal market.

In addition, the disputed measure appears neither suitable for
attaining the general interest objectives referred to by the Italian
authorities, nor the least restrictive means of achieving those
objectives. In particular, the disputed measure does not appear
to be a suitable means of ensuring that the less affluent have
access to justice, or that the recipients of
legal services are
protected, or for ensuring the proper administration of justice.
Nor does the measure appear proportionate, since there are
other measures which appear to be appreciably less restrictive
for lawyers established abroad, and equally (if not more) suitable
for achieving the protection objectives relied on by the Italian
authorities.

7.3.2009

EN

Official Journal of the European Union

C 55/13

if any,
Lastly, the Italian authorities have not explained what,
alternative measures,
lawyers established in
less restrictive of
other Member States, have been considered; nor have they set
interests pursued are not
out
already protected by the provisions in force in the other
Member States of
the Community for governing the legal
profession.

the reasons why the general

Reference for a preliminary ruling from the Anotato
Dikastirio Kiprou (Cyprus) lodged on 22 December 2008
— Simvoulio Apokhetevseon Levkosias v Anatheoretiki
Arkhi Prosforon

(Case C-570/08)

(2009/C 55/20)

Language of the case: Greek

Referring court

Anotato Dikastirio Kiprou (Supreme Court of Cyprus)

Form of order sought

— Declare that, by providing for a minimum price for cigar-
ettes and a period of 120 days within which approval is to
be obtained for a change in the price of manufactured
tobacco, the Italian Republic has failed to fulfil its obliga-
tions under Article 9(1) of Directive 95/59/EC (1).

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

The minimum price

The Commission submits that, by fixing a minimum price for
cigarettes,
the Italian Republic has infringed Article 9(1) of
Directive 95/59/EC (and Article 5 of Directive 72/464/EEC (2),
which it replaces and which is essentially identical to it). That
the principle that manufacturers and
provision establishes
importers are free to determine the maximum retail selling price
for manufactured tobacco. In accordance with that principle,
Member States cannot justify the exercise of any discretion to
fix maximum retail selling prices by reference to ‘the control of
price levels’, ‘the observance of imposed prices’ or the fixing of
a scale of retail selling prices in accordance with Article 9(2) of
Directive 95/59/EC.

Parties to the main proceedings

Applicant: Simvoulio Apokhetevseon Levkosias (Nicosia Sewage
Council)

Respondentt: Anatheoretiki Arkhi Prosforon (Tenders Review
Authority)

The minimum price cannot be justified by on the grounds of
protection of public health. That objective, which was taken into
account by the Community legislature, can be achieved by
means of increased taxation of cigarettes, in accordance with the
tax parameters that are appropriate to the situation of each
Member State.

Question referred

Does Article 2(8) of Directive 89/665/EC recognise contracting
authorities as having a right to judicial review of cancellation
decisions by bodies responsible for review procedures which are
not judicial bodies?

Action brought on 22 December 2008 — Commission of
the European Communities v Italian Republic

(Case C-571/08)

(2009/C 55/21)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (repre-
sented by: W. Mölls and L. Pignataro, agents)

Defendant: Italian Republic

The Italian Government's argument alleging that, as a result of
prices that are too high or inappropriate in terms of the market,
there is a risk of increasing trafficking in contraband or counter-
feit goods is also unfounded. That argument is based on mere
assertions made by the Italian Government which are not
substantiated by any evidence in that it has failed to explain
how the difference in prices as a result of an increase in taxation
should lead to a greater incidence of fraud than would be the
case if a minimum price policy were adopted. The Commission
maintains that it is for the individual Member State to carry out
the necessary controls, within the framework of Community
law, to ensure that the taxes owing to it are collected. That
requirement must not in any way affect the obligation incum-
bent upon Member States to comply with the provisions of
Directive 95/59/EC, including Article 9 thereof.

The 120-day period within which approval
obtained for the prices of manufactured tobacco

is to be

For the purpose of marketing in Italy, the prices of manufac-
tured tobacco products must be registered for inclusion on the
official list of prices. The request for registration must be sent to
the Ministero dell'Economia e delle Finanze (Finance Ministry)
— Amministrazione Autonoma dei Monopoli di Stato (the
autonomous body administering State monopolies)
(AAMS).
The AAMS does not enjoy any discretion as to whether to
confirm the registration. The Commission takes the view that