Criminal proceedings against Manuele Arduino, third parties: Diego Dessi, Giovanni Bertolotto and Compagnia Assicuratrice RAS SpA.
Date: 2002-02-19
24 It is settled case-law that in the context of the cooperation between the Court of Justice and the national courts provided for by Article 177 of the Treaty it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted by the national court concern the interpretation of Community law, the Court of Justice is, in principle, bound to give a ruling (see, inter alia, Case C-415/93 Bosman [1995] ECR I-4921, paragraph 59; and Case C-379/98 PreussenElektra [2001] ECR I-2099, paragraph 38).
25 Nevertheless, the Court has also stated that, in exceptional circumstances, it can examine the conditions in which the case was referred to it by the national court, in order to assess whether it has jurisdiction (see, to that effect, Case 244/80 Foglia [1981] ECR 3045, paragraph 21). The Court may refuse to rule on a question referred for a preliminary ruling 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, Bosman, paragraph 61; and PreussenElektra, paragraph 39).
29 Furthermore, the information in the order for reference was supplemented by the written observations lodged before the Court. All that information, which was included in the Report for the Hearing, was brought to the notice of the governments of the Member States and the other interested parties for the purposes of the hearing, at which they had an opportunity, if necessary, to amplify their observations (see, to that effect, Case C-67/96 Albany [1999] ECR I-5751, paragraph 43; and Joined Cases C-115/97 to C-117/97 Brentjens' [1999] ECR I-6025, paragraph 42).
33 As a preliminary point, the Court observes that, since that State measure extends to the whole of the territory of a Member State, it may affect trade between Member States within the meaning of Article 85(1) of the Treaty (see, to that effect, Commission v Italy, cited above, paragraph 48).
34 Although Article 85 of the Treaty is, in itself, concerned solely with the conduct of undertakings and not with laws or regulations emanating from Member States, that article, read in conjunction with Article 5 of the Treaty, none the less requires the 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 (Case 267/86 Van Eycke [1988] ECR 4769, paragraph 16; Case C-185/91 Reiff [1993] ECR I-5801, paragraph 14; Case C-153/93 Delta Schiffahrts- und Speditionsgesellschaft [1994] ECR I-2517, paragraph 14; Case C-96/94 Centro Servizi Spediporto [1995] ECR I-2883, paragraph 20; and Commission v Italy, cited above, paragraph 53; as to Article 86 of the EC Treaty (now Article 82 EC), see also Case 13/77 GB-Inno-BM [1977] ECR 2115, paragraph 31).
35 The Court has held that Articles 5 and 85 of the Treaty are infringed where a Member State requires or favours the adoption of agreements, decisions or concerted practices contrary to Article 85 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 (Van Eycke, paragraph 16; Reiff, paragraph 14; Delta Schiffahrts- und Speditionsgesellschaft, paragraph 14; Centro Servizi Spediporto, paragraph 21; and Commission v Italy, paragraph 54).
36 In that regard, the fact that a Member State requires a professional organisation to produce a draft tariff for services does not automatically divest the tariff finally adopted of the character of legislation.
37 That would be the case where the members of the professional organisation can be characterised as experts who are independent of the economic operators concerned and they are required, under the law, to set tariffs taking into account not only the interests of the undertakings or associations of undertakings in the sector which has appointed them but also the public interest and the interests of undertakings in other sectors or users of the services in question (see, to that effect, Reiff, paragraphs 17 to 19 and 24; Delta Schiffahrts- und Speditionsgesellschaft, paragraphs 16 to 18 and 23; Joined Cases C-140/94 to C-142/94 DIP and Others [1995] ECR I-3257, paragraphs 18 and 19; and Commission v Italy, paragraph 44).
39 In those circumstances, 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 tariff, the CNF conducts itself like an arm of the State working in the public interest.
40 That said, it does not appear that the Italian State has waived its power to make decisions of last resort or to review implementation of the tariff. This is confirmed by the circumstances mentioned in paragraph 10 above.
41 First, the CNF is responsible only for producing a draft tariff which, as such, is not compulsory. Without the Minister's approval, the draft tariff does not enter into force and the earlier approved tariff remains applicable. Accordingly, the 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 tariff can be approved.
42 Second, 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.
43 In those circumstances, the Italian State cannot be said to have delegated 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. Nor, for the reasons set out in paragraphs 41 and 42 above, is the Italian State open to the criticism that it requires or encourages the adoption of agreements, decisions or concerted practices contrary to Article 85 of the Treaty or reinforces their effects.