CELEX: C1999/299/18
Language: en
Date: 1999-10-16 00:00:00
Title: Case C-310/99: Action brought on 13 August 1999 by the Italian Republic against the Commission of the European Communities

C 299/16              EN                     Official Journal of the European Communities                                      16.10.1999
2. If the answers to the first question indicate that a rule such            way in which those concerned actually wish to model their
   as the [Samenwerkingsverordening — Regulation on the                      co-operation, with either the provisions on the right of
   formation of cooperative associations — 1993] is to be                    establishment or with those relating to the freedom to
   regarded as a decision of an association of undertakings                  provide services?
   within the meaning of Article 85(1) [now Article 81(1)] of
   the EC Treaty, is such a decision, in so far as it adopts            8. Does a prohibition on integrated co-operative associations
   universally binding rules, designed to safeguard the inde-                between lawyers and accountants such as the one in
   pendence and loyalty to the client of lawyers providing                   question 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
   the common market and in that respect affecting trade                9. If it follows from the answer to the previous question that
   between the Member States? What criteria of Community                     one or both of the abovementioned restrictions exists, is
   law are relevant to the determination of that issue?                      the restriction in question justified on the ground that it
                                                                             constitutes merely a ‘selling arrangement’ within the
                                                                             meaning of Keck and Mithouard and therefore there is no
                                                                             discrimination, or on the ground that it satisfies the criteria
3. Is the term ‘undertaking’ in Article 86 (now Article 82) of               that have been developed in that respect by the Court of
   the EC Treaty to be interpreted as meaning that where an                  Justice in other judgments, in particular Gebhard?
   institution such as the Bar Association must be regarded
   as an association of undertakings, that institution must
   also be considered to be an undertaking or group of
   undertakings 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
   institution abuse that position if it regulates the relation-          against the Commission of the European Communities
   ships of the lawyers affiliated to it with others on the
   market in legal services in a manner which restricts
   competition?                                                                                    (Case C-310/99)
                                                                                                  (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 for
   the purposes of Community competition law, is Article                An action against the Commission of the European Communi-
   90(2) [now Article 86(2)] of the EC Treaty to be interpreted         ties was brought before the Court of Justice of the European
   as extending to an institution such as the Bar Association           Communities on 13 August 1999 by the Italian Republic,
   which lays down universally binding rules, designed to               represented by its Agent Professor Umberto Leanza, assisted
   safeguard the independence and loyalty to the client of              by Oscar Fiumara, Avvocato dello Stato, with an address
   lawyers providing legal assistance, on co-operation                  for service in Luxembourg at the Italian Embassy, 5 Rue
   between lawyers and members of other professions?                    Marie-Adelaïde.
                                                                        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 European
   ing or group of undertakings, do Article 3g, the second                   Communities of 11 May 1999 No C(1999)1364 final (1),
   paragraph of Article 5 and Articles 85 and 86 (now                        in 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
   institution may adopt rules concerning inter alia co-                — in the alternative, annul the said decision in so far as it
   operation between lawyers and members of other pro-                       provides for the recovery of sums constituting incompat-
   fessions when review by the relevant public authority of                  ible aid;
   such rules is limited to the power to annul such a rule
   without the authority’s being able to adopt a rule in its            — order the Commission of the European Communities to
   stead?                                                                    pay the costs.
7. Are both the Treaty provisions on the right of establish-
   ment and those on the freedom to provide services                    Pleas in law and main arguments
   applicable to a prohibition on co-operation between
   lawyers and accountants such as that in question, or is the          1. The Commission’s decision appears to be open to challenge
   EC Treaty to be interpreted as meaning that such a                        on the grounds of abuse of power and inadequate (illogical)
   prohibition must comply, depending for example on the                     statement of reasons in relation to the definition of the
 ---pagebreak--- 16.10.1999              EN                    Official Journal of the European Communities                                     C 299/17
     class of ‘young persons’ comprising the ‘weaker segment’            Action brought on 16 August 1999 by the Commission
     of the employment market. Whilst the decision quotes                of the European Communities against the Italian Republic
     statistics and the observations of the Italian authorities
     which show that, given the specific characteristics of
     unemployment among young persons in Italy, and particu-
     larly in Southern Italy, that class includes persons in the                                 (Case C-312/99)
     age group up to 32 years, the Commission reached a
     different conclusion, sanctioning the extension of the class
     of ‘young persons’ only to those aged under 25, or 29 in
     the case of graduates.                                                                      (1999/C 299/19)
2. The decision appears to be invalidated by factors which are
     self-evident: unlawfulness, misuse of power and deficiency          An action against the Italian Republic was brought before the
     (inadequacy) of the statement of reasons as regards the             Court of Justice of the European Communities on 16 August
     ‘quantification’ of the aid considered permissible.                 1999 by the Commission of the European Communities,
                                                                         represented by Antonio Aresu, of its Legal Service, acting as
                                                                         Agent, with an address for service in Luxembourg at the office
                                                                         of Carlos Goméz de la Cruz, Wagner Centre, Rue Alcide de
3. The decision appears to be open to challenge on the                   Gasperi.
     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 under              The 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-
     ment Contracts) into contracts of indefinite duration does          1. declare that, by failing to adopt the laws, regulations
     not create additional jobs, since the jobs themselves already           and administrative provisions necessary to comply with
     existed, even though they were not permanent.                           Commission Directive 97/59/EC of 7 October 1997 (1)
                                                                             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 at
     lation — under which aid ‘to promote the economic                       work (3), the Italian Republic has failed to fulfil its obli-
     development of areas where the standard of living is                    gations 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 Article
     87(3)(a) EC) — is not assessed in depth, with the result            2. order the Italian Republic to pay the costs of the action.
     that the said provision has been infringed and wrongly
     applied 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 is
     clearly defective (inadequate) in that no account is taken of
     the effect of the aid considered incompatible upon trade            Article 189 of the EC Treaty (now Article 249 EC), under
     within the Community or on competition.                             which a directive is binding, as to the result to be achieved,
                                                                         upon each Member State to which it is addressed, imposes an
                                                                         obligation upon the Member States to comply with the
6. As to the operative part of the contested decision which              time-limits for implementation laid down in the directives.
     concerns the recovery of the aid deemed incompatible, the           Those time-limits expired on 31 March 1998 and 30 June
     statement of reasons is defective (inadequate) as regards           1998 respectively without the Italian Republic having adopted
     the necessity or at least the appropriateness of effecting          the necessary legislation to comply with the directives referred
     recovery.                                                           to in the form of order sought by the Commission.
                                                                         (1) OJ L 282 of 15.10.1997, p. 33.
(1) Concerning the scheme for the grant by Italy of aid for measures     (2) OJ L 335 of 6.12.1997, p. 17.
    to promote employment.                                               (3) OJ L 374 of 31.12.1990, p. 1.