C-221/99

6. Under Article 636(3) of the Code, the court is bound to follow the opinion of the 3. The 'procedimento d'ingiunzione' is a professional association as regards the summary procedure which allows a cred- sums claimed, unless it dismisses the appli-

1 — Original language: French. 2 — Article 641 of the Code.

I - 9361

OPINION OF MR LÉGER — CASE C-221/99

cation on the ground that the statement of 10. Article 2 of the fee scale annexed to grounds is inadequate. that law provides for four types of fees: (1) 'percentage fees', which are fixed on the basis of the value of the works; (2) 'unit fees', fixed on the basis of the unit of measurement; (3) 'time-basis fees', deter- mined on the basis of the time spent; and 7. In accordance with Article 643 of the (4) 'discretionary fees', which are left Code, copies of the order and the applica- entirely to the professional. tion are to be served on the defendant. Their joint service marks the start of the proceedings (Article 643(3) of the Code). As from that service, the defendant may apply to have the order set aside within the period prescribed for voluntary compli- ance. If the debtor applies to have the order set aside within that period, the 11. Article 5 of the abovementioned fee ordinary civil procedure inter partes is scale lists the services for which fees may be followed (Article 645 of the Code). If he fixed at the discretion of the professional. does not apply, the court declares the order enforceable on application by the creditor.

12. Subsequently, the procedure for the B — The legal provisions on fees fixing of fees was amended by Law No 143 of 4 March 1958 regulating the fee scale for engineers and architects. That law provides that the scales of fees and emoluments are to be laid down by a decree 8. Italian legislation provides for minimum of the Minister for Justice, by agreement tariffs in respect of the services provided by with the Minister for Public Works, on a architects and engineers. proposal from the National Councils of the associations of engineers and architects.

17. On 30 October 1998, the Giudice di 14. As regards the National Council of the Pace di Genova made an order granting Ms Association of Architects, Article 5 of Law Rossi's application. No 1395 of 24 June 1923 4 provides that architects enrolled on the register are to elect their own Association Council. One of the functions of that council is to give, on request, an opinion on professional dis- putes and on the settlement of expenses and 18. On 18 December 1998, Mr Conte fees. applied to have that order set aside. He contended that the order was null and void on the ground that the opinion settling the fee, given by the Council of the Association of Architects of Genoa, constituted a deci- sion by an association of undertakings contrary to Article 85 of the Treaty. Mr I I — Facts and procedure Conte requested that the national court refer to the Court of Justice for a prelimin- ary ruling a number of questions relating to the compatibility of the Italian scheme with 15. Ms Rossi practises as an architect in Community law. Italy.

16. By an application lodged on 29 Octo- 19. In the order for reference, 5the Giudice ber 1998, she applied to the Giudice di Pace di Pace di Genova states that an interpreta- di Genova for the issue of an order against tion of Articles 5 and 85 of the Treaty is Mr C o n t e r e q u i r i n g p a y m e n t of necessary in order to enable it to determine ITL 2 550 000 in respect of certain profes- both the objection that the order is null and sional services. In accordance with Arti- void and the merits of the application.

I - 9364

CONTE

(b) the final measures of the public sure settling the fee, even where it authorities essentially delegate to confirms the fee set by the member at the members of the associations his own discretion, the force of which concerned the power to set the fee is such as to bind the court to make an scale at their own discretion, even order for payment in accordance with after the professional services the measure adopted by the council requested of them have been per- itself settling the fee?' formed; or

(c) the final measures of the public authorities do not contain any indication of being in the public IV — The reinforcement of the effects of interest or any upper and lower an agreement, decision or concerted prac- limits with which the fee scale set tice (Questions 1 and 2) at the practitioner's discretion must comply; or

24. The first question referred for a pre- liminary ruling relates to the interpretation of Article 85(1) of the Treaty. The national (d) the final measures of the public court seeks to ascertain whether architects authorities do not require profes- practising in Italy and the Italian profes- sionals to communicate in advance sional associations of architects fall within and/or publicise in any other way the scope of that provision. the fee scales which they intend to apply for the services requested of them?

25. The second question referred for a preliminary ruling relates to the compat- (3) Are the combined provisions of Arti- ibility of Law No 143/49 with Community cles 5 and 85 of the Treaty compatible law. The Giudice di Pace di Genova seeks with national legislation which, with- to ascertain whether the Italian authorities out requiring public-interest considera- have infringed Articles 5 and 85 of the tions to be taken into account, confers Treaty on the ground that, by enacting Law on a fee committee set up by the No 143/49, they have reinforced the effects association council and composed of an agreement, decision or concerted solely of association members the practice within the meaning of Article 85 power to adopt a discretionary mea- of the Treaty. In that regard, the national

30. It is common ground that the present case relates to the provisions of Law 27. It should be borne in mind that the No 143/49 on professionals' 'discretionary case-law of the Court of Justice as it now fees'. 12 stands requires, if a legislative or regulatory measure is to be declared incompatible with Articles 5 and 85 of the Treaty, that the State measure be preceded by an agreement, decision or concerted practice which is itself contrary to Article 85(1) of the Treaty. 10 For the purpose of determin- ing whether the Italian authorities have 31. It is clear from the documents before infringed Articles 5 and 85 of the Treaty, it the Court that 'discretionary fees' give is thus necessary first of all to examine architects 'a discretion in setting fees over whether the conditions for the application a wide range of professional services, which of Article 85(1) of the Treaty are satisfied may... include those at issue in these in the present case. proceedings'. 13 In respect of the services referred to in Article 5 of the fee scale at issue, 'the law does not even lay down 9 — Ibid., p. 5. upper and lower limits within which the 10 — See, in particular, Case C-2/91 Meng [1993] ECR I-5751, paragraphs 16 and 17; Case C-245/91 Ohra Schadeverze- keringen [1993] ECR I-5851, paragraph 12; Case C-35/96 Commission v Italy [1998] ECR I-3851; Case C-266/96 11 — The Commission's written observations (point 25). Corsica Ferries France [1998] ECR I-3949, paragraphs 50 to 54; Case C-67/96 Albany [1999] ECR I-5751, para- 12 — See the order for reference (English translation, p. 6) and graph 66; and Joined Cases C-180/98 to C-184/98 Pavlov point 16 above. and Others [2000] ECR I-6451, paragraphs 99 and 100. 13 — Order for reference (English translation, pp. 5 and 6).

35. In those circumstances, it is not neces- sary to know whether architects practising in Italy constitute 'undertakings' for the purposes of Community competition law. Nor is it necessary to determine whether the concept of an association of undertak- ings in Article 85(1) of the Treaty is applicable to the National Council of the 33. Moreover, according to the Court's Association of Architects. The Court may, case-law as it now stands, 17 where an without adjudicating on those matters, agreement, a decision by an association of declare that Articles 5 and 85 of the Treaty undertakings or a concerted practice is not do not preclude the application of the contrary to Article 85(1) of the Treaty, the provisions of Law No 143/49 on 'discre- State measure which reinforces its effects is automatically compatible with Articles 5 and 85 of the Treaty. 18 — In the Opinion which I delivered on 10 July 2001 in Case C-35/99 Arduino [2001] ECR I-5409, points 86 to 9 7 , I maintained that it had to be possible t o declare that a State measure appreciably restricts competition even if t h e 14 — Ibid., p. 6. conduct of the economic operators which is at the root of the State's action is not, of itself, contrary t o 15 — The Italian Government's written observations (p. 9). Article 85(1) of the Treaty. However, even according t o 16 — The Commission's written observations (point 25). that argument, the provisions of Law N o 143/49 o n 17 — See, in particular, Corsica Ferries France, paragraphs 50 to 'discretionary fees' would be compatible with Articles 5 54; Albany, paragraph 66; and Pavlov, paragraphs 99 and and 85 since they do not represent any restriction of 100. competition on the Italian market.

19 — At the hearing, Mr Conte submitted that, even in respect of 'discretionary fees', the National Council of the Associa- tion of Architects has issued internal circulars designed to fix the price of the services performed by professionals. According to Mr Conte, those circulars abolish the free- dom conferred on architects by legislation and thus constitute decisions by an association of undertakings contrary to Article 85(1) of the Treaty. On that point, I would note that the procedure referred ro in Article 234 However, the Court of Justice has also held EC is based on a clear separation of functions between national courts and the Court of Justice, and that any that, in exceptional cases, it may, in order assessment or verification of the facts of the case falls within the exclusive jurisdiction of the national court (see, to determine whether it has jurisdiction, inter alia, Case 13/68 Salgoil [19681 ECR 453, 459; Case examine the conditions in which the case 104/77 Oehlschläger [1978] ECR 791, paragraphs; Case C-235/95 Dumon and Froment [1998] ECR I-4531, has been referred to it by the national paragraph 25; and Joined Cases C-175/98 and C-177/98 Lirussi and Bizzaro [1999] ECR I-6881, paragraph 37). court. 23 The Court may refuse to rule on a The Court has jurisdiction solely to adjudicate on the question submitted by a national court interpretation or validity of a Community provision on the basis of the facts outlined to it by the national court (see, inter alia, Oehlschläger, paragraph 4; Case C-30/93 AC- ATEL Electronics Vertriebs [1994] ECR I-2305, para- graph 16; and Case C-352/95 Phytheron International [1997] ECR I-1729, paragraph 11). At no point in the 20 — See, inter alia, Case 16/65 Schwarze [1965] ECR 877, 886. present proceedings did the Giudice di Pace — or indeed 21 — See, in particular, Case C-415/93 Bosman [1995] ECR any of the other parties involved — refer to the existence I-4921, paragraph 59. of such internal circulars. The facts raised by Mr Conte cannot therefore be validly examined. 22 — Idem. 23 — Case 244/80 Foglia [1981] ECR 3045, paragraph 21.

Indeed, the material at my disposal con- firms that, according to the settled case-law 40. It is common ground that, in the of the Corte suprema di cassazione (Italian present case, the national court is required Court of Cassation), 27 the opinion of the to give a ruling during the second stage of professional association binds the court the procedure for the recovery of debts only at the first, ex parte stage of the prescribed by Article 633 et seq. of the procedure for the recovery of debts. By Code, namely the stage inter partes which contrast, that opinion ceases to be binding began when Mr Conte applied to have the where the debtor initiates proceedings to payment order set aside. It is also common have the order set aside in order to ground that the national court seeks to challenge the existence and amount of the ascertain whether, in the context of that debt claimed by the professional. stage of the procedure, it is entitled to disregard the opinion of the Council of the Association of Architects of Genoa for the 25 — The Italian Government's written observations (p. 12). purpose of determining Ms Rossi's fees. 26 —The Commission's written observations, p. 18. 27 — See, in particular, the judgments of the Corte suprema di cassazione of 8 April 1975, No 1276; of 12 July 1975, No 2775; of 24 August 1994, No 7504; of 30 October 24 — See, inter alia, Case C-36/99 Idéal Tourisme [2000] ECR 1996, No 9514; and of 7 May 1997, No 3972. The I-6049, paragraph 20; Case C-322/98 Kachelmann [2000] summary of these judgments may be consulted in the ECR 1-7505, paragraph 17; and Case C-340/99 TNT database 'Italgiure', established by the Centro elettronico Traco [2001] ECR I-4109, paragraph 31. di documentazione of the Corte suprema di cassazione.

I - 9370