CELEX: C2001/348/34
Language: en
Date: 2001-12-08 00:00:00
Title: 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

8.12.2001             EN                    Official Journal of the European Communities                                       C 348/19
     of health of Community citizens, since according to               Reference for a preliminary ruling by the Tribunale Civile
     recital 11 of the Directive the prohibition is to ensure          e Penale di L’Aquila by order of 5 October 2001 in the
     that ‘the internal market provisions are not undermined’                 case of Rolando Salusest v Giovanni Petrucci
     (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                                          (Case C-409/01)
     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                                    (2001/C 348/34)
     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.
                                                                       Reference has been made to the Court of Justice of the
                                                                       European Communities by order of 5 October 2001 by the
—    Article 133 EC is not a proper legal basis for the contested      Tribunale Civile e Penale di l’Aquila (Civil and Criminal District
     prohibition of export. The aim of the contested measure           Court, L’Aquila), which was received at the Court Registry on
     is not in fact the regulation of trade with non-member            16 October 2001, for a preliminary ruling in the case
     countries or the influencing of commerce or trade flows,          of Rolando Salusest v Giovanni Petrucci on the following
     but the prevention of illegal reimports. The measure does         questions:
     not therefore meet the requirements for competence
     defined by the Court of Justice in opinions 1/94 and
     2/92.
                                                                       (a)  Is the provision of binding minimum tariffs contrary to
                                                                            free competition on the ground that it prevents the free
     In the alternative: even if the scope of Article 133 EC                fixing of fees for a lawyer’s services, as provided for under
     were available, the prohibition of export cannot, in                   Article 81(1)(a) EC, and does it also have the effect
     the opinion of the German Government, be based on                      of reinforcing the compartmentalisation of markets at
     Article 133, because it restricts disproportionately the               national level, thereby hindering the economic integration
     principle of freedom of export to be taken into account                intended by the Treaty?
     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                  Lawyers who are nationals of other EC Member States
     Community, the contested provision is not appropriate                  and who work in Italy are also required under Article 13
     at all for protecting Community citizens effectively                   of the Law of 9 February 1982 to comply with the tariff
     against health risks caused by illegal imports into the                for legal fees and thus also with the rule prohibiting
     Community; that aim can only be effectively attained by                differentiation of amounts below a specified minimum
     a reinforcement of import controls, which are necessary                level.
     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’        (b) Are Articles 633(1)(2) and 636(1) of the Italian Code of
     measure of external trade policy, but is intended to ensure            Civil Procedure, under which a lawyer is authorised to
     higher health standards in the Community, the reference                have his fees determined by the Council of the order to
     to Article 133 EC amounts to an evasion of                             which he belongs through the adoption of an opinion
     Article 152(4)(c) EC.                                                  binding on his client and on the court (in enforcement
                                                                            proceedings), allowing him to obtain entitlement based
                                                                            on that unilateral determination of the professional
—    The combination of the above legal bases, each of which                fee pursuant to the abovementioned minimum tariffs,
     is insufficient on its own, does not confer on them a                  contrary to free competition on the ground that they
     more extensive scope.                                                  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?
(1) OJ L 194 of 18.7.2001, p. 26.