C-35/99

6. When the CNF decides upon the scale of fees, it is referred to the Minister for Justice 3. The Consiglio Nazionale Forense for approval. Before granting this approval, (National Council of the Bar, hereinafter the Minister must obtain the opinion of the 'the CNF') is to be established under the Interministerial Committee on Prices (here-

1 — Original language: French. 2 — As subsequently amended (hereinafter 'the Decree-Law').

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inafter 'the CIP') 3 and consult the Con- C — The contested fee scale siglio di Stato (Council of State). 4The ministerial decree approving the fee scale must then be endorsed and registered by the Corte dei Conti (Court of Auditors). The scale is then binding. 10. The fee scale in issue in the main proceedings was adopted by decision of the CNF of 12 June 1993 and approved by Ministerial Decree No 585 of 5 October 1994 (hereinafter 'Ministerial Decree No 585/94' or 'the contested decree') 5.

7. Under Article 58 of the Decree-Law, the criteria referred to in Article 57 are to be determined on the basis of the monetary value of the dispute and the level of court hearing the case. For each step, or series of 11. Article 1 of the contested decree steps, maximum and minimum limits must approves the CNF decision. be set. Fees for out-of-court work are to be determined on the basis of the complexity of the case.

15. However, where the services provided are manifestly disproportionate to the fees allowed, it is possible to depart from the stated maxima. It is also possible to go 19. The referring court states 6 that, in below the minima, provided that the party Italian law, there are two conflicting lines who has an interest in the matter produces of case-law as to whether the scale set by an opinion from the Council of the com- Ministerial Decree No 585/94 constitutes petent Bar. an agreement, decision or concerted prac- tice restricting competition under Article 85 of the Treaty.

According to the first line of case-law, 7the II — Facts and procedure contested decree is similar to the legislation that was the subject of the Court's decision of 18 June 1998. 8The CNF is an associ- ation of undertakings within the meaning of Article 85(1) of the Treaty, and no 16. Mr Arduino was prosecuted for over- statutory provision requires it to adopt taking on a 'no overtaking' stretch of road, decisions in the public interest. Since the contrary to the road traffic legislation. The contested scale is such as to restrict com- accused's vehicle collided with that of Mr petition, the national court is required to Dessi, who claimed damages before the disapply it. Pretore di Pinerolo.

According to the other line of case-law,9 the contested scale is not the product of the 17. At the end of these proceedings, Mr Arduino was ordered to pay Mr Dessi's 6 — Order for reference (paragraphs 12 to 15). costs. Mr Dessi's lawyer presented his fee 7 — The referring court cites Judgment No 791/98 of the Corte note based on the scale set by Ministerial d'Appello Torino (Court of Appeal, Turin) of 19 June and 11 July 1998 (order for reference, paragraph 12). Decree No 585/94. However, the Pretore 8 —Case C-35/96 Commission v Italy [1998] ECR I-3851 di Pinerolo decided not to apply the con- ('CNSD'). tested scale and to set the fees below the 9 — The referring court cites Judgment No 351/98 of the Tribunale Tempio Pausania (District Court, Tempio Paus- minimum rate. ania) (order for reference, paragraph 15).

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23. Firstly, the Italian Government ques- 25. It should be pointed out that, according tions the genuineness of the dispute in the to settled case-law, the procedure provided main proceedings. for by Article 177 of the EC Treaty (now Article 234 EC) is an instrument of cooper- ation between the Court of Justice and the national courts. 14 Within the context of that cooperation, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial It explains that, following the judgment of decision, to determine both the need for a the Corte Suprema di Cassazione, Mr preliminary ruling and the relevance of the Arduino's insurance company paid the questions which it submits to the Court. 15 costs incurred by Mr Dessi. In the light of Consequently, where the questions sub- this payment, Mr Dessi withdrew from the mitted by the national court concern the remainder of the proceedings, and Mr interpretation of Community law, the Arduino's lawyer requested the Pretore di Court of Justice is, in principle, bound to Pinerolo to order that the case should not give a ruling. 16 proceed to judgment. In the current state of proceedings, the main dispute therefore has no purpose.

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26. In respect of the Italian Government's Furthermore, it is possible that, notwith- first observation, I consider that there is standing the existence of any agreement insufficient evidence before the Court to between the parties as to costs, the national show that the dispute in the main proceed- court is required of its own motion to ings is hypothetical. determine the lawfulness of the contested fee scale.

It would have been preferable, in the 27. In these circumstances, the evidence interests of the sound administration of before the Court does not lead to the justice, for the Pretore di Pinerolo to have conclusion that the dispute in the main satisfied himself of the genuineness of the proceedings is purely hypothetical in dispute in the main proceedings and, in nature. particular, of the lack of any agreement between the parties on the question of costs. However, the fact remains that the Italian Government has not produced evi- dence that such an agreement exists. In these circumstances, the Court can only refer to the information supplied by the 28. As regards the Italian Government's national court. second observation, I would point out that the requirement adequately to describe the legal and factual context of the dispute principally pursues two objectives.

In the present case, there are certain gaps in preliminary ruling. 25 Whilst it is true that the order for reference. The Pretore di in its written observations, 26 the French Pinerolo only partially sets out the powers Government considered that certain aspects available to the Italian authorities in the of the procedure for approval of the con- procedure for approval of the fee scale set tested fee scale were imprecise, nevertheless by the CNF. However, these pieces of this information was supplemented by the information have been supplemented by written observations of the parties and the Italian Government's replies to the notified to the French Government. At the questions addressed to it by the Court on hearing, that Government put forward a this subject. I therefore consider that, in balanced and definitive view on the ques- spite of these gaps in the order for refer- tions raised by the referring court. ence, the Court is in a position to provide an answer to the questions raised that will be of use to the Pretore di Pinerolo.

31. Consequently, I consider that the ques- tions referred for a preliminary ruling by the Pretore di Pinerolo are admissible.

30. Secondly, the information provided in orders for reference must give the Govern- ments of the Member States and other interested parties the opportunity to submit observations pursuant to Article 20 of the EC Statute of the Court of Justice. 22 It is V — The subject-matter of the questions the Court's duty to ensure that that oppor- referred for a preliminary ruling tunity is safeguarded, bearing in mind that only the orders for reference are notified to the interested parties. 23 32. In common with most of the interven- ing parties, I think that the questions referred for a preliminary ruling need to be reformulated.

34. It is apparent, however, from the description of the legal background to the case that the contested fee scale is a State 37. In the current state of the case-law, 29 measure. The decision of the CNF setting the Court considers that a State measure is the scale of fees was formally incorporated liable to negate the effectiveness of the in Ministerial Decree No 585/94. The con­ competition rules in three situations: (1) tested fee scale thus seems to be a measure where a Member State requires, or favours, of a legislative or regulatory nature. the adoption of agreements, decisions of associations of undertakings or concerted practices contrary to Article 85 of the Treaty; (2) where a Member State rein­ forces the effects of such conduct; and (3) where a Member State deprives its own rules of their legislative character by del­ 35. It is settled case-law 27 that, in itself, egating to private economic operators the Article 85 of the Treaty is not concerned responsibility for taking decisions affecting with laws or regulations adopted by the economic sphere. Member States. It is concerned solely with the conduct of undertakings. Only Article 5 of the Treaty, in conjunction with Article 85 of the Treaty, requires the Member States not to introduce or main­ tain in force measures, even of a legislative or regulatory nature, which may render ineffective the competition rules applicable 38. The subject-matter of the reference therefore needs to be restated in terms of to undertakings. this case-law.

It is true that Article 57 of the Decree-Law requires the CNF, every two years, to set It appears from the file 31 that the national the criteria for determining the fees and court made a reference to this Court emoluments payable to members of the following the judgment in CNSD, which Bar. It might thus be wondered whether held that the Italian legislation at issue in this provision requires, or favours, the that case had 'wholly relinquished to pri- adoption of decisions of associations of vate economic operators the powers of the undertakings contrary to Article 85 of the public authorities as regards the setting of Treaty. However, as the Italian Govern- tariffs'. 32 Furthermore, in setting out the ment emphasises, 30 there is no evidence on divergent authorities in Italian case-law, the file to suggest that the referring court is the Pretore di Pinerolo, in my opinion, asks concerned with the compatibility of whether the Italian public authorities have Article 57 of the Decree-Law with the delegated to private economic operators provisions of Articles 5 and 85 of the responsibility for taking decisions affecting Treaty. the economic sphere. 33

40. By contrast, the second situation does 42. Based on the foregoing considerations, seem to me to apply in this case. I propose that the Court reformulate the questions referred for a preliminary ruling in the sense that they seek to determine:

43. On the first question, I would point out 45. It is necessary to consider four issues in that the Court's case-law as it now stands succession to determine whether: (1) requires, if a legislative or regulatory meas- members of the Bar practising in Italy ure is to be declared incompatible with constitute 'undertakings'; (2) the CNF is Articles 5 and 85 of the Treaty, that the to be regarded as an 'association of under- State measure be preceded by an agree- takings'; (3) the decisions adopted by the ment, decision or concerted practice that is CNF have as their object or effect the itself contrary to Article 85(1) of the restriction of competition within the com- Treaty. 34 mon market; and (4) those decisions may affect trade between Member States.

In order to determine whether the Italian authorities have infringed Articles 5 and 85 1. The concept of undertaking

34 — See, in particular, Meng, paragraphs 16 and 17; Obra Schadeverzekeringen, paragraph 12; CNSD, paragraphs 53 to 60; Corsica Ferries France, paragraphs 50 to 54; Albany, paragraph 66; and Joined Cases C-180/98 to C-184/98 Pavlov and Others [2000] ECR I-6451, para- 46. According to settled case-law, the graphs 99 and 100. Court considers that the concept of under-

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taking in the context of competition law 48. In these circumstances, the supply of encompasses 'every entity engaged in an legal services by Members of the Bar in economic activity, regardless of the legal Italy must be regarded as an economic status of the entity and the way in which it activity within the meaning of the Court's is financed'. 35 case-law.

In CNSD, the Court characterised Italian customs agents as undertakings within the meaning of Article 85 of the Treaty 41 even 47. In the present case, it appears from the though, like members of the Bar, they are file 38 that members of the Bar practising in governed by disciplinary rules laid down by Italy, as independent operators, offer ser- a professional body. 42 Furthermore, the vices of legal advice and representation of 'public-service' tasks with which members their clients before the courts. Members of of the Bar are entrusted do not remove the Bar in Italy therefore offer services on a them from the sphere of competition law, market, namely the market in legal services. but may, in my opinion, bring them within Furthermore, it is clear from the file 39 that the scope of Article 90(2) of the EC Treaty Members of the Bar in Italy practise with a (now Article 86(2) EC). 43 view to making a profit. The referring court has stated that they demand and receive from their clients remuneration in consider- ation for the services provided.

50. Consequently, a member of the Bar 35 —Case C-41/90 Höfner and Eher [1991] ECR I-1979, practising in Italy is to be regarded as an paragraph 21. 36 —Case 118/85 Commission v Italy [1987] ECR 2599, paragraph 7. 37 — Opinion of Advocate General Tesauro in Joined Cases 40 — Written observations of the Italian Government (p. 7). C-159/91 and C-160/91 Poucet and Pistre [1993] ECR I-637, point 8; and in Case C-364/92 SAT Fluggesellschaft 41 — CNSD, paragraphs 36 to 38. [1994] ECR I-43, point 9. 42 — See CNSD, paragraph 7, as well as Advocate General 38 — Order for reference (paragraph 7). Cosmas' Opinion in that case (point 71). 39 — Idem. 43 — See my Opinion in Wouters, points 170 to 178.

56. In contrast to the Italian Government's submissions, 49 this conclusion is not 53. As set out in CNSD 45 and Pavlov, 46 altered by the fact that the CNF is a body the Court considers that an entity is not an governed by public law, 50 vested with association of undertakings within the disciplinary powers. 51 Nor does it matter meaning of Article 85(1) of the Treaty that the CNF does not itself carry out any where, firstly, it is composed of a majority of representatives of the State and, sec- 47 — See the order for reference (paragraph 9) and the written ondly, it is required by national legislation observations of the Italian Government (p. 8). 48 — Order for reference (paragraph 9). 49 — Written observations of the Italian government (p. 8). 44 — Points 56 to 86. 50 —Case 123/83 BNIC [1985] ECR 391, paragraph 17; 45 — Paragraphs 39 to 44. CNSD, paragraph 40; and Pavlov, paragraph 85. 46 — Paragraphs 83 to 89. 51 — See CNSD, paragraph 7, and Advocate General Cosmas' Opinion in that case, point 71.

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economic activity, 52 that it is entrusted 60. Firstly, it ascertains whether the agree- with tasks in the public interest, 53 or that it ment has as its object the restriction of may, in fact, adopt its decisions in the competition. To this end, it carries out an public interest. 54 objective examination of the aims of the agreement, having regard to the economic context in which it is to be applied. 56 If the agreement has an anti-competitive object it is prohibited under Article 85(1) of the Treaty without its being necessary to take 57. It follows from these considerations account of its concrete effects. 57 The same that the decisions of the CNF constitute considerations apply to decisions of associ- decisions of an association of undertakings ations of undertakings. 58 within the meaning of Article 85(1) of the Treaty.

61. Where the agreement does not specifi- 59. The Court generally adopts a two-stage cally have as its object the restriction of procedure for determining whether an competition, the Court goes on to deter- agreement is compatible with Article 85(1) mine whether its effect is the prevention, of the Treaty. 55 restriction or distortion of competition.61 In this regard, Article 85(1) of the Treaty 52—Joined Cases 209/78 to 215/78 and 218/78 Van Landewyck and Others v Commission [1980] ECR 3125, paragraphs 87 and 88; and Joined Cases 96/82 to 102/82, 56—Joined Cases 29/83 and 30/83 CRAM and Rheinzink 104/82, 105/82, 108/82 and 110/82 IAZ and Others v [1984] ECR 1679, paragraph 26. Commission [1983] ECR 3369, paragraphs 19 and 20. 57— Joined Cases 56/64 and 58/64 Consten and Grundig v 53 — See the Report for the Hearing in BNIC (paragraph 1.1), paragraph 16 of the judgment, and Commission Decision Commission [1966] ECR 299, 342. 82/896/EEC of 15 December 1982 relating to a proceeding 58 — Case 45/85 Verband der Sachversicherer v Commission under Article 85 of the EEC Treaty (IV/29.883 — [1987] ECR 405, paragraph 39. AROW/BNIC) (OJ 1982 L 379, p. 1; paragraphs 2 and 3 59 — Case 73/74 Groupement des Fabricants de Papiers Feints of the account of the facts). See also my Opinion in de Belgique v Commission [1975] ECR 1491, paragraph Wouters, points 79 and 80. 10; and BNIC, paragraph 22. 54 — See IAZ v Commission, paragraphs 19 to 25, and my 60 — Verband der Sachversicherer v Commission, paragraphs Opinion in Wouters, points 81 to 86. 39 to 43. 55 — Case 56/65 Société Technique Minière [1966] ECR 235, 61 — Société Technique Minière, pp. 249 to 250; and Case 249. C-234/89 Delimitis [1991] ECR I-935, paragraph 13.

68. It should be pointed out that, under (a) The draft fee scale Article 57 of the Decree-Law, the CNF is required, every two years, to set the criteria for determining the fees and emoluments payable to members of the Bar. The draft fee scale is then submitted to the Minister for Justice who must obtain the opinion of 64. In Community competition law, price- the CIP and of the Consiglio di Stato. On fixing agreements are 'particularly seri­ 63 ous'. The Court considers that, by its very nature, an agreement fixing the price 65 — Case 41/69 ACT Chcmielarma v Commission Į1970] ECR 661, paragraphs 132 and 133; Case 48/69 ÍC7 v Commis- of goods or services has as its object the sion [19721 ECR 619, paragraphs 115 to 119; and Case restriction of competition on the market. 64 246/86 Belasco and Others v Commission [1989] ECR 2117, paragraphs 12 to 16. 66 — BN1C, paragraph 22; and CNSD, paragraphs 45 and 46. 67 — CNSD, paragraphs 45 and 46. 68 — Case 8/72 Vereeniging van Cenieiithandclaren v Commis- 62 —Casc T-35/92 Deere v Commission [1994] ECR 11-957, sion [1972] ECR 977, paragraphs 15 to 25; Van paragraph 61. Landcwyck and Others v Commission, paragraph 102 et 63 — Joined Cases 240/82 to 242/82, 261/82, 262/82, 268/82 seq.; Verband der Sachversicherer v Commission, para- and 269/82 Stichting Sigarettenindustrie and Others v graphs 34 to 43; and Joined Cases T-213/95 and T-18/96 Commission [19851 ECR 3831, paragraph 82. SCK and FNK v Commission [1997Į ECR II-1739, 64 — BMC, paragraph 22; and Case 243/83 Bmon [1985] ECR paragraphs 157 to 164. 2015, paragraph 44. 69 — See also points 77 to 79 below.

71. It appears from the evidence on the file 71 that the draft scale is submitted exclusively to the Italian Minister for Jus- tice. Without approval by the Minister, the 73. The second decision of the CNF may be members of the profession and third parties characterised as an application lodged by are legally bound to apply the scale con- private economic operators with the public tained in the preceding ministerial decree.

72 — My opinion on this point would be otherwise if it appeared that the CNF decision was circulated amongst the 70 — It is clear that my opinion on this point would have been members of the profession and that, even without the different if the decision of the CNF adopting the draft scale approval of the Minister for Justice, members of the Bar had not formed a part of the legislative procedure laid based their fees on the tariffs set out in the draft scale. In down by the Italian legal system. that case, the decision of the CNF could be characterised as 71 — See, in particular, the Commission's written observations, a system of target prices such as to restrict competition within the common market. paragraph 19.

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authorities of a Member State for the orities then have to decide whether the purpose of conferring binding effect on proposed action is in the public interest. the draft agreement concluded by those They have sole power, but also sole operators. responsibility for their decision'.

74. In his Opinion in Albany, cited above, 75. Since I endorse this analysis, I propose Advocate General Jacobs clearly set out the that the Court declare that Article 85(1) of reasons why such a request should not be the Treaty does not preclude a professional prohibited by Article 85(1) of the Treaty. body of members of the Bar, such as the Mr Jacobs said that: 73 CNF, from submitting to the public auth- orities of a Member State a draft scale setting the minimum and maximum fees for services provided by members of the pro- fession for the purpose of making the scale binding on all members of the profession 'Mere efforts on the part of undertakings to and third parties. convince public authorities to extend the effects of a certain agreement to other economic actors are not caught by Article 85(1) [of the Treaty].

price for certain goods and submitted this 79. It is common ground that most econ- agreement to the French authorities with a omic sectors are characterised by the com- view to making it binding on all members plex nature of the goods or services offered of the professions represented. One of the and their permanent evolution through dealers, against whom the BNIC had insti- rapidly changing knowledge and technical tuted proceedings, had challenged the com- developments. 76 Because of these char- patibility of the agreement with the Treaty acteristics, State authorities can face major provisions on competition. difficulties in adopting, alone, detailed legislative measures that are up to date and adapted to the various sectors con- cerned. It is therefore necessary to enable the State authorities to set up, in one way or another, mechanisms for consultation Before the Court, the BNIC submitted 'that with the representatives of the economic agreements concluded within it are not sectors liable to be affected by particular binding and that its role is solely to advise rules. 77 the central public authorities, which alone may make the said agreements binding by means of ministerial orders'. 74

82. I now turn to consider whether the Italian authorities have infringed Articles 5 and 85 of the Treaty on the ground that they have reinforced the effects of a decision by an association of undertakings within the meaning of Article 85(1) of the Treaty, in adopting Ministerial Decree No 585/94. 80. On the basis of the foregoing consider- ations, I therefore propose that the Court find that Article 85(1) of the Treaty does not preclude a professional body of members of the Bar, such as the CNF, from adopting a draft scale setting the minimum and maximum fees for services supplied by members of the profession and from submitting, in compliance with the 83. In that regard, I would point out that, national measures in force, this draft scale in order for a legislative or regulatory to the authorities of the Member State measure to be declared incompatible with concerned for the purpose of making the Articles 5 and 85 of the Treaty, the case- said scale binding on the whole profession law requires that there be a link between and on third parties. the State measure and private conduct on the part of one or more undertakings.80 This requirement is intended to preclude the examination of State measures on the basis of anti-competitive effects peculiar to them. In their Opinions in Meng, Reiff, Ohra Schadeverzekeringen and DIP, 81 Advocates General Tesauro, 82 Darmon 83 and Fennelly 84 conclusively set out the reasons why the case-law should be upheld 81. Since the two decisions adopted by the on this point. It is not therefore necessary CNF are not such as to restrict compe- to go over those various arguments. tition, it is not necessary to determine whether they may affect trade between Member States. 80 — See the operative part of the judgments in Meng and Ohra Schadeverzekeringen. 81 — Cited above. 79 — For a different analysis of BNIC, see R. Joliét, 'National 82 — Opinion in Meng and Ohra Schadeverzekeringen, already Anti-competitive Legislation and Community Law', Ford- cited. ham International Law Journal, 1989, p. 163, pp. 178 to 83 — Opinion in Reiff. 180. 84 — Opinion in DIP.

86. However, I think that this automatic approach is hardly consistent with econ- omic reality. The present case, in my 88. Like Advocate General Jacobs, 87 I opinion, illustrates the limitations of the consider that, in cases such as this, it is case-law as it now stands. 86 more justified to accept that the State measure may infringe Articles 5 and 85 of the Treaty independently of the legality of the conduct of the private operators. In other words, it must be possible to find that a State measure appreciably restricts com- 87. In the present case, I have found that petition even if the conduct of the economic the decision of the CNF adopting the draft operators at the root of the State action is not, in itself, contrary to Article 85(1) of the Treaty. 85 — See, in particular, Corsica Ferries France, paragraphs 50 to 54; Albany, paragraph 66; and Pavlov, paragraphs 99 and 100. 86 — See the reasoning developed by Advocate General Jacobs in his Opinion in Pavlov, paragraph 161. 87 — Ibid., paragraph 163.

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91. In this respect, I suggest that the Court adopt three criteria of assessment. The Court could find that a legislative or regulatory measure which reinforces the effects of an agreement, decision or con- certed practice is compatible with Lastly, the third condition would be Articles 5 and 85 of the Treaty provided intended to ensure that the effects restrict- that: (1) the public authorities of the ive of competition produced by the State Member State concerned exercise effective measure are confined to that which is control over the content of the agreement, necessary in order to achieve the objective decision or concerted practice; (2) the State pursued. measure pursues a legitimate aim in the public interest, and (3) the State measure is proportionate to the aim which it pursues. 89 — Opinion of Advocate General Jacobs in Albany, paragraph 184. See also, to that effect, A. Bach, note on Reiff, Meng, and Ohra Schadeverzekeringen, in Common Markei Law Review, 1994, p. 1357, footnote 14. The author states that '(¡Instead of presuming corporate rulemaking to be in the 88 — This was also the position put forward by the Commission public interest, however, it seems much more justified to in Joined Cases C-430/93 and C-431/93 Van Schipidel and presume that this kind of rule follows the economic Van Veen (19951 ECR 1-4705, p. 21 of the Report for the interests of those participating in the rulemaking and Hearing. creates restrictive conditions for newcomers and outsiders'.

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90 — M. Waelbroeck and A. Frignarli, Commentaire,]. Megret, 94 — See, to this effect, BNIC, paragraph 22. Le droit de la CE, volume 4, Concurrence, Editions de 95 — See, to this effect, Commission Decision 95/188/EC of l'université de Bruxelles, Brussels, 1997, 2 edition, 30 January 1995 relating to a proceeding under Article 85 paragraph 533. of the EC Treaty (IV/33.686 — COAPI) (OJ 1995 L 122, 91 — ICI v Commission, paragraph 115. p. 37, paragraph 38 of the account of the facts). 92 — Idem. 96 — See Politique de la concurrence et professions libérales, 93 — Order for reference, paragraph 11. OECD, Paris, 1985, paragraph 199.

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2. Justification for restricting competition must obtain the opinion of the CIP and consult the Consiglio di Stato. The minis- terial decree must then be endorsed and registered by the Corte dei Conti.

98. The above finding does not, however, imply that Ministerial Decree No 585/94 is incompatible with Articles 5 and 85 of the 101. It appears from the order for refer- Treaty. It remains to determine whether the ence 97 that the CIP is an organ of the State, contested decree can be justified on the composed of eight ministers and three basis of Article 5 of the Treaty. In accord- experts appointed by the President of the ance with the three conditions set out Council of Ministers. Its functions include above, I will examine whether: (1) the fixing the prices of mass consumer goods, Italian authorities have exercised effective monitoring compliance with those prices, control over the CNF decision; (2) Minis- and giving an opinion on the tariffs set by terial Decree No 585/94 pursues an aim in the professions. the public interest; and (3) the contested decree is proportionate to the aim pursued.

Justice has no power to substitute his own because it is still necessary to determine decisions for those of the CNF. However, whether, in practice, the State authorities the Minister does have the power, on his genuinely exercise the powers conferred on own initiative, to amend the content of them by law. 100 In the absence of an those decisions. In this case, it is for the effective exercise of these powers, it must CNF to incorporate these amendments into be concluded that the State authorities the original draft fee scale. Furthermore, approve, without discussion, the concer- the Minister for Justice has the — indi- tation which took place within the CNF. rect — power to force the CNF to amend the content of its decisions since, without an approving decree, the scale laid down by the CNF is not binding at all. In this case, the members of the profession and third parties are required to apply the tariffs laid down by the preceding ministerial decree. 107. In the present case, the following information appears from the material in the file. 101 The CIP and the Consiglio di Stato prepared a series of observations on the impact on inflation of the entry into force of the CNF decision of 12 June 1993. 104. Finally, before granting endorsement These bodies proposed a gradual intro- and registration, the Corte dei Conti carries duction of the tariff increases provided for out a review of the legality of the minister- by the CNF. The Minister for Justice ial decree approving the fee scale. 99 endorsed the opinion of the CIP and the Consiglio di Stato: he requested the CNF to amend its decision and to postpone for six months one half of the tariff increases. The CNF incorporated the Minister for Justice's observations in a second decision dated 29 September 1994. 105. It follows from all of this information that the detailed rules of the procedure for approving the fee scale do give the Italian authorities the power to carry out particu- larly extensive control over the decisions of the CNF. Furthermore, in its written observa- tions, 102 the Italian Government stated that 'the Minister [for Justice] prepared a

The information relating to the postpone- ment of the tariff increases suggests that the public authorities exercise genuine control over the CNF's decisions. Nevertheless, this information must, in my view, be con- 110. The Pretore di Pinerolo and the Italian firmed by further evidence before the Pre- Government have not specified the objec- tore di Pinerolo. tives pursued by Ministerial Decree No 585/94. Only the party claiming civil damages has advanced any comment on this subject in the course of these proceed- ings. At the hearing, he submitted that Ministerial Decree No 585/94 was pri- marily intended to guarantee a high level of quality in respect of the services supplied The national court will, therefore, be able by members of the profession. to examine the Minister for Justice's acts which have been referred to by the Italian Government during these proceedings. It will also be able to determine whether, with regard to the contested scale or other draft scales, the public authorities have made any 111. Since this information comes neither objections or substantive observations vis- from the Italian Government nor from the à-vis the CNF (for example, whether the referring court, I will assume that this is the Minister for Justice has already refused to case. It is, above all, for the Pretore di approve a CNF decision on the ground that Pinerolo to identify the true objectives of the tariff increases were too high). the contested scale and to determine

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whether these objectives are consistent with quality of those services therefore [consti- the public interest. tutes] one of the decisive inputs in many sectors of a national economy'. 104

Secondly, from an economic viewpoint, the services provided by the professions do not only have consequences for the recipients. 114. Following the third condition, it As Advocate General Jacobs has pointed remains to consider whether the measures out, 103 they also generate 'externalities' in contained in Ministerial Decree No 585/94 the form of losses or benefits for society as are proportionate to the objective which a whole. The demand for professional they allegedly pursued. 106 services 'is often of a derivative nature, which means that their output (a lawyer's advice, an architect's plan) is an intermedi- 104 — Idem. ate good in a longer production chain. The 105 — Ibid., paragraph 86. 106 — It will be recalled that I am considering this question hypothetically since it is not proven that the objective pursued by the contested decree does indeed consist in maintaining the quality of services supplied by the 103 — Opinion in Pavlov, paragraph 85. members or the profession.

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115. It is settled case-law 107 that, in order they lacked qualifications, competence or to establish whether a measure complies moral conscience. Second, the quality of with the principle of proportionality, it is services is — or ought to be — guaran- necessary to ascertain whether the means teed by measures of a different type, such as which it employs are suitable for the those governing the conditions of entry to purpose of achieving the desired objective the profession and the professional liability and whether they do not go beyond what is of members of the Bar. necessary to achieve it.

117. On the assumption that the objective of the contested decree is to maintain the quality of the services supplied by members of the profession, such a measure does not seem to me to be suitable for the purpose of achieving the desired objective. 109 119. In the light of the foregoing consider- ations, I propose that the Court reply to the first question referred for a preliminary ruling in terms that Articles 5 and 85 of the Treaty do not preclude a Member State from adopting a legislative or regulatory measure approving, on the basis of a draft First, I consider that there is no causal produced by a professional body of effect between the level of fees charged and members of the Bar, a scale setting the the quality of services supplied. I fail to see minimum and maximum fees for the ser- how a system of mandatory prices would vices provided by members of the profes- prevent members of the profession from sion on the threefold condition that: (1) the offering inadequate services if, in any event, public authorities of the Member State concerned exercise effective control over the content of the fee scale proposed by the 107 — See, for example, Case C-426/93 Germany v Council professional body; (2) the State measure [1995] ECR I-3723, paragraph 42; and Case C-84/94 United Kingdom v Council [1996] ECR I-5755, para- approving the fee scale pursues a legitimate graph 57. aim in the public interest; and (3) the State 108 — Order for reference, paragraph 11. 109 — See, to this effect, Decision 95/188, paragraph 41 of the measure is proportionate to the aim which account of the facts. it pursues.

113 — Reiff, paragraph 22; Delta Schiffahrts- und Speditions- 110 — R. Joliét, cited above, p. 172. gesellschaft, paragraph 21; and Centro Servizi Spedi- 111 — Van Eycke, already cited, paragraph 19. porto, paragraph 27. 112 — Meng, paragraph 20; Ohra Schadeverzekeringen, para- 114— Van Eycke, paragraph 19; and Corsica Ferries france, graph 13; and Corsica ferries France, paragraph 52. paragraph 52.

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124. As regards the powers of the Minister economic operators their power in setting for Justice, I stated 115 that, according to the tariffs. the information provided by the Italian Government, the Minister for Justice has the power to amend, on his own initiative, the content of the decisions. In that case, it is for the CNF to incorporate these amend- ments into the original draft fee scale. 127. In this respect, I have found 117 that Furthermore, the Minister for Justice has the material in the file is insufficient to the power to force the CNF to amend the enable the Court itself to determine this content of its decisions since, without an question. The matter should therefore be approving decree, the scale laid down by remitted to the Pretore di Pinerolo for the CNF is not binding. In this case, the decision. members of the profession and third parties are required to apply the tariffs laid down by the preceding ministerial decree.

The determining criterion on this issue is whether the Italian authorities do indeed intervene to control the content of the CNF's decisions on aspects which are essential for the profession and third 125. In the light of these factors, I consider parties. that the Italian public authorities have reserved to themselves the — indirect — power to determine the content of the fee scale of members of the Bar.

(2) Articles 5 and 85 of the Treaty do not preclude a Member State from conferring on a professional body of members of the Bar, such as the Consiglio Nazionale Forense, the power to adopt a draft scale setting the minimum and maximum fees for services provided by members of the profession on the twofold condition that: (1) the public authorities of the Member State concerned reserve to themselves the power to determine, directly or indirectly, the content of the fee scale; and (2) those authorities genuinely exercise the powers conferred on them by law. It is for the national court to determine whether this is the case.

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