Federico Cipolla v Rosaria Fazari, née Portolese (C-94/04) and Stefano Macrino and Claudia Capoparte v Roberto Meloni (C-202/04).
Date: 2006-12-05
25. As regards Mr Cipolla’s pleas of inadmissibility, it should be recalled that questions on the interpretation of Community law referred by a national court in the factual and legislative context which that court is responsible for defining and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance (see Case C‑300/01 Salzmann [2003] ECR I-4899, paragraphs 29 and 31). The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Case C-379/98 PreussenElektra  [2001] ECR I-2099, paragraph 39, and Case C-466/04 Acereda Herrera  [2006] ECR I-0000, paragraph 48).
26. That presumption of relevance cannot be rebutted by the simple fact that one of the parties to the main proceedings contests certain facts, such as those set out in paragraph 22 of this judgment, the accuracy of which is not a matter for the Court to determine and on which the delimitation of the subject-matter of those proceedings depend.
30. Finally, as regards particularly the questions concerning the interpretation of Article 49 EC, although it is common ground that all aspects of the main proceedings before the national court are confined within a single Member State, a reply might none the less be useful to the national court, in particular if its national law were to require, in proceedings such as those in this case, that an Italian national must be allowed to enjoy the same rights as those which a national of another Member State would derive from Community law in the same situation (see, in particular, Case C-451/03 Servizi Ausiliari Dottori Commercialisti  [2006] ECR I-2941, paragraph 29).
36. That government also challenges the relevance of the question referred by the national court in the light of the fact that there is no anti-competitive practice in the case in the main proceedings, either in establishing the scale or on account of the conduct of operators.
– The Court’s answer
38. The plea of inadmissibility alleging that the national court did not indicate the precise reasons for its uncertainty as to the interpretation of Community law cannot succeed either. According to the case-law of the Court, it is essential that the national court should give at the very least some explanation of the reasons for the choice of the Community provisions which it requires to be interpreted and on the link it establishes between those provisions and the national legislation applicable to the dispute (see, inter alia, order in Case C-116/00 Laguillaumie [2000] ECR I-4979, paragraph 16). The decision making the reference fully satisfies such a requirement, as moreover the Advocate General pointed out in paragraph 24 of his Opinion.
45. As a preliminary point, it should be noted that, since the scale extends to the whole of the territory of a Member State, it may affect trade between Member States within the meaning of Articles 81(1) EC and 82 EC (see, to that effect, Case 8/72 Vereeniging van Cementhandelaren v Commission [1972] ECR 977, paragraph 29; Case C-179/90 Merci convenzionali porto di Genova [1991] ECR I-5889, paragraphs 14 and 15; and Case C-35/99 Arduino [2002] ECR I-1529, paragraph 33).
46. According to settled case-law, although it is true that Articles 81 EC and 82 EC are, in themselves, concerned solely with the conduct of undertakings and not with laws or regulations emanating from Member States, those articles, read in conjunction with Article 10 EC, which lays down a duty to cooperate, none the less require Member States not to introduce or maintain in force measures, even of a legislative or regulatory nature, which may render ineffective the competition rules applicable to undertakings (see, in particular, the order in Case C‑250/03 Mauri [2005] ECR I-1267, paragraph 29, and the case-law cited).
47. The Court has held, in particular, that Articles 10 EC and 81 EC are infringed where a Member State requires or encourages the adoption of agreements, decisions or concerted practices contrary to Article 81 EC or reinforces their effects, or where it divests its own rules of the character of legislation by delegating to private economic operators responsibility for taking decisions affecting the economic sphere (order in Mauri , paragraph 30, and the case-law cited).
48. In that respect, the fact that a Member State requires a professional organisation composed of lawyers, such as the CNF, to produce a draft scale of fees does not, in the circumstances specific to the cases in the main proceedings, appear to establish that that State has divested the scale finally adopted of its character of legislation by delegating to lawyers responsibility for taking decisions concerning them.
49. Although the national legislation at issue in the main proceedings does not contain either procedural arrangements or substantive requirements capable of ensuring with reasonable probability that, when producing the draft scale, the CNF conducts itself like an arm of the State working in the public interest, it does not appear that the Italian State has waived its power to make decisions of last resort or to review implementation of that scale (see Arduino , paragraphs 39 and 40).
50. First, the CNF is responsible only for producing a draft scale which, as such, is not binding. Without the Minister of Justice’s approval, the draft scale does not enter into force and the earlier approved scale remains applicable. Accordingly, that Minister has the power to have the draft amended by the CNF. Furthermore, the Minister is assisted by two public bodies, the Consiglio di Stato and the CIP, whose opinions he must obtain before the scale can be approved (see Arduino,  paragraph 41).
51. Secondly, Article 60 of the Royal Decree-Law provides that fees are to be settled by the courts on the basis of the criteria referred to in Article 57 of that decree-law, having regard to the seriousness and number of the issues dealt with. Moreover, in certain exceptional circumstances and by duly reasoned decision, the court may depart from the maximum and minimum limits fixed pursuant to Article 58 of the Royal Decree-Law (see, to that effect, Arduino , paragraph 42).
52. In those circumstances, the view cannot be taken that the Italian State has waived its power by delegating to private economic operators responsibility for taking decisions affecting the economic sphere, which would have the effect of depriving the provisions at issue in the main proceedings of the character of legislation (see Arduino , paragraph 43, and the order in Mauri , paragraph 36.)
53. Nor, for the reasons set out in paragraphs 50 and 51 of this judgment, is the Italian State open to the criticism that it requires or encourages the adoption by the CNF of agreements, decisions or concerted practices contrary to Article 81 EC of the Treaty or reinforces their effects, or requires or encourages abuses of a dominant position contrary to Article 82 EC or reinforces the effects of such abuses (see, to that effect, Arduino , paragraph 43, and the order in Mauri , paragraph 37).
56. Article 49 EC requires not only the elimination of all discrimination on grounds of nationality against providers of services who are established in another Member State but also the abolition of any restriction, even if it applies without distinction to national providers of services and to those of other Member States, which is liable to prohibit or further impede the activities of a provider of services established in another Member State where he lawfully provides similar services (see, in particular, Case C‑17/00 De Coster [2001] ECR I-9445, paragraph 29, and Joined Cases C‑544/03 and C‑545/03 Mobistar and Belgacom Mobile  [2005] ECR I‑7723, paragraph 29).
57. Furthermore, the Court has already held that Article 49 EC precludes the application of any national rules which have the effect of making the provision of services between Member States more difficult than the provision of services purely within one Member State (see De Coster , paragraph 30, and the case-law cited, and Mobistar and Belgacom Mobile , paragraph 30).
58. The prohibition of derogation, by agreement, from the minimum fees set by a scale such as that laid down by the Italian legislation is liable to render access to the Italian legal services market more difficult for lawyers established in a Member State other than the Italian Republic and therefore is likely to restrict the exercise of their activities providing services in that Member State. That prohibition therefore amounts to a restriction within the meaning of Article 49 EC.
59. That prohibition deprives lawyers established in a Member State other than the Italian Republic of the possibility, by requesting fees lower than those set by the scale, of competing more effectively with lawyers established on a stable basis in the Member State concerned and who therefore have greater opportunities for winning clients than lawyers established abroad (see, by analogy, Case C-442/02 CaixaBank France [2004] ECR I-8961, paragraph 13).
60. Likewise, the prohibition thus laid down limits the choice of service recipients in Italy, because they cannot resort to the services of lawyers established in other Member States who would offer their services in Italy at a lower rate than the minimum fees set by the scale.
61. However, such a prohibition may be justified where it serves overriding requirements relating to the public interest, is suitable for securing the attainment of the objective which it pursues and does not go beyond what is necessary in order to attain it (see, inter alia, Case C-398/95 SETTG [1997] ECR I-3091, paragraph 21, and Servizi Ausiliari Dottoro Commercialisti , paragraph 37).
64. In that respect, it must be pointed out that, first, the protection of consumers, in particular recipients of the legal services provided by persons concerned in the administration of justice and, secondly, the safeguarding of the proper administration of justice, are objectives to be included among those which may be regarded as overriding requirements relating to the public interest capable of justifying a restriction on freedom to provide services (see, to that effect, Case C‑3/95 Reisebüro Broede [1996] ECR I-6511, paragraph 31, and the case-law cited, and Case C-124/97 Läärä and Others [1999] ECR I-6067, paragraph 33), on condition, first, that the national measure at issue in the main proceedings is suitable for securing the attainment of the objective pursued and, secondly, it does not go beyond what is necessary in order to attain that objective.
68. Account must also be taken of the specific features both of the market in question, as noted in the preceding paragraph, and the services in question and, in particular, of the fact that, in the field of lawyers’ services, there is usually an asymmetry of information between ‘client-consumers’ and lawyers. Lawyers display a high level of technical knowledge which consumers may not have and the latter therefore find it difficult to judge the quality of the services provided to them (see, in particular, the Report on Competition in Professional Services in Communication from the Commission of 9 February 2004 (COM(2004)83 final, p. 10)).
70. Having regard to the foregoing, the answer to the fourth and fifth questions referred in Case C-94/04 must be that legislation containing an absolute prohibition of derogation, by agreement, from the minimum fees set by a scale of lawyer’s 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 the national court to determine whether such legislation, in the 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 in the light of those objectives.
Costs