Opinion of the Advocate-General
I - Introduction
1 This action against the Italian Republic, which was brought by the Commission of the European Communities, seeks a declaration from the Court that the Italian Republic has failed to fulfil its obligations under the EC Treaty because it failed adequately to transpose Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (hereinafter `Directive 93/13'). (1) Of the original four grounds of complaint only one remains, following a partial withdrawal of the grounds of complaint by the Commission. It relates to the transposition of Article 7(3) of Directive 93/13. The question is to what extent does Italian law permit collective actions to challenge not only the use but also recommendations as to the use of unfair terms.
II - Legal background
(1) Directive 93/13
2 Article 7 of Directive 93/13 states that:
`1. Member States shall ensure that, in the interests of consumers and of competitors, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers.
2. The means referred to in paragraph 1 shall include provisions whereby persons or organisations, having a legitimate interest under national law in protecting consumers, may take action according to the national law concerned before the courts or before competent administrative bodies for a decision as to whether contractual terms drawn up for general use are unfair, so that they can apply appropriate and effective means to prevent the continued use of such terms.
3. With due regard for national laws, the legal remedies referred to in paragraph 2 may be directed separately or jointly against a number of sellers or suppliers from the same economic sector or their associations which use or recommend the use of the same general or contractual terms or similar terms.'
3 Under Article 10 the directive was to be transposed into national law by 31 December 1994.
(2) Italian law
4 Directive 93/13 was transposed into Italian Law by Law No 52 of 6 February 1996 (hereinafter `Law No 52/96'). (2) That Law inserted Article 1469a to e into the Italian Civil Code (`Civil Code'). Article 7 of Directive 93/13 was transposed by Article 1469e of the Civil Code, which provides that consumer and trade associations, chambers of commerce, of industry, of crafts and of agriculture may bring proceedings against undertakings and trade associations using terms of contract drawn up for general use and seek an order from the courts prohibiting the use of unfair terms. (3)
5 In the present action the Italian Government further submits that Article 7 has also been transposed by Article 3 of Law No 281 of 30 July 1998 (`Law No 281/98'). (4) This provides that consumer and user associations registered on the list provided for by Article 5 of Law No 281/98 may initiate legal proceedings to protect collective interests. In particular, they may seek an order prohibiting acts and conduct which prejudice the interests of consumers. (5)
6 Article 5 of Law No 281/98 lays down the conditions under which consumer associations may be included in the list referred to in Article 3. The list is maintained by the Minister for Industry, Commerce and Trade Crafts.
III - Procedure and forms of order sought
7 In the course of the requisite pre-litigation proceedings, the Commission delivered its reasoned opinion to the Italian Government on 18 December 1998. Having taken the view that the Italian Government's response of 15 March 1999 was unsatisfactory, the Commission brought proceedings against the Italian Republic on 6 October 1999. Three of the original grounds of complaint were withdrawn in writing on 19 May 2000. The Commission now claims that the Court should:
(1) declare that the Italian Republic has failed to fulfil its obligations under Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts in that it has omitted to adopt the measures necessary in order to transpose in its entirety Article 7(3) of that directive;
(2) order the Italian Republic to pay the costs.
8 The Italian Republic requests the Court:
(1) to reject the complaint;
(2) to order the Commission to pay the costs.
IV - Submissions of the parties
(1) The Commission
9 The Commission alleges that Article 7(3) of Directive 93/13 has not been transposed in its entirety. Article 7(1) has as its object the prevention of the continued use of unfair terms. That must include establishing a preventive right of action to enable proceedings to be brought to challenge even a recommendation that a term be used. Preventive controls are particularly useful for consumers, as they enable the use of unfair terms to be prevented once and for all. The Commission bases its submissions on that part of Article 7(2) which refers to `contractual terms drawn up for general use'. This means that the term need not yet have been implemented. The Commission further refers to Article 7(3), which expressly anticipates provision for a remedy against recommendation of the use of unfair terms. The preventive character of Article 7 is also demonstrated by its juxtaposition with Article 6 of the directive, which governs the legal consequence of the use of an unfair term, namely that it is not binding. Thus only when preventive measures directed against even a recommendation as to the use of these terms are in place can it be said that adequate and effective means are available to put an end to the use of unfair clauses. Finally, the Commission refers to the background to the adoption of Directive 93/13 and to the reasons given for the amended Commission draft text, expressly stating that purely preventive proceedings were to be admissible. The Council approved this reasoning by adopting the Commission's proposals in this respect without amendment.
10 The Commission submits that this form of preventive control has not been implemented in Italian law. Under Article 1469e of the Civil Code it is only possible to bring proceedings challenging the use of unfair terms, not their recommendation. The same applies to Article 3 of Law No 281/98, which only authorises proceedings in respect of the use of unfair terms.
11 In response to the point that a recommendation cannot, by reason of its lack of binding legal effect, prejudice a party's legal rights and accordingly cannot form the basis of a right to bring proceedings, the Commission observes that in practice recommendations are given effect to and therefore the Community legislator had intentionally incorporated into the directive the right to take action on a preventive basis. Furthermore, a Member State may not plead the requirements of its internal legal system as a means of avoiding its duty to transpose directives into national law.
12 In the Commission's view, Article 3 of Law No 281/98 is wholly inapplicable on grounds of legal principle alone. It represents a general rule, which under the principle of lex specialis derogat generali is displaced by the more specific provisions of Article 1469e of the Civil Code.
13 Should Article 3 in fact provide for a preventive remedy, the Commission submits that it offends against the principles of legal certainty and legal clarity. A remedy founded on Article 3 enabling recommendations to be challenged would clearly conflict with the provisions of Article 1469e of the Civil Code, which does not allow for such a remedy, and with Article 100 of the Italian Code of Civil Procedure, which provides that there is a remedy only where an actual legal right exists. As the Italian Government accepts in its submissions, that is not the case with a recommendation, as it has no binding effect.
14 Furthermore, Article 3 results in an unacceptable restriction of the category of persons entitled to bring proceedings. Italy made use of its power under Article 7(3) to define that category by enacting Article 1469e. The category of persons entitled to bring proceedings under this article is wider than that determined by Article 3 of Law No 281/98. Defining a category differently depending on whether the proceedings challenge the use of a term - in this case, the wider set provided for by Article 1469e of the Civil Code - or a recommendation as to the use of a term - in this case, the narrower set specified in Article 3 of Law No 281/98 - is not in accordance with the objects of Article 7 of Directive 93/13.
(2) The Italian Government
15 The Italian Government denies that there has been any failure to fulfil its Treaty obligations. It submits that the provisions of Article 7(3) of Directive 93/13 have been fully transposed into Italian law.
16 First, it is clear that as a matter of principle Article 7(1) of Directive 93/13 requires that adequate and effective means exist in national law to prevent the continued use of unfair terms in contracts. In the Italian Government's submission, this implies that such terms are actually used in contracts. The actual, and not simply the potential, use of the terms is an important condition for enabling legal proceedings to be brought.
17 A right of action against a recommendation is fundamentally inadmissible. A recommendation has no binding effect, and accordingly cannot prejudice a person's legal rights. It follows that where a recommendation is involved no one would have the interest to sue which Article 100 of the Code of Civil Procedure requires for proceedings to be admissible.
18 If it can be shown, however, that even action which falls short of use of a term is unfair to consumers, it is open to the courts to prohibit the use of such measures, too, on the basis of Article 3 of Law No 281/98. Recommendations might also be covered under this head. The remedy provided for by Article 3 of Law No 281/98 may be used against any party responsible for conduct which prejudiced the interests of consumers. That might include the party who had recommended the use of an unfair term.
19 As regards the definition of the category of persons entitled to bring proceedings, the Italian Government refers to Article 7(2) of Directive 93/13. This provision allows the Member States to define the category of persons having that right. If Italy specified those parties in Article 1469e of the Civil Code and in Article 3 of Law No 281/98, that simply reflected an exercise of the power allowed for under Article 7 of the directive and cannot be said to conflict with the spirit of this provision.
20 A parallel application of the provisions is not excluded by the principle of lex specialis. The matter involves procedural rules and not substantive norms.
V - Legal appraisal
(1) Defining the scope of the duty to transpose Article 7(3) of Directive 93/13
21 The first point to establish is the scope of the duty imposed on Italy to transpose the provisions of Article 7(3) of Directive 93/13, as the parties are in dispute as to how far the preventive objects of Article 7(3) extend. By reference to the wording of Article 7(1) of the directive, which states that the continued `use' of unfair terms should be prevented, the Italian Government claims that the unfair terms which are targeted by the provision must also actually be used, and not simply have the potential to be used. Only then are the interests of consumers prejudiced and a right of action provided for. This accords with the provisions of Article 100 of the Code of Civil Procedure, which makes the admissibility of an action dependent upon the existence of a legal interest capable of being protected by the law, something which in principle can only be the case where there is interference with the interests of the consumer through the actual use of an unfair term.
22 In response, the Commission refers to the text of Article 7, to its juxtaposition with Article 6 in the structure of Directive 93/13, as also to the background to the directive to support its view that the directive is intended to be preventive. That aim would be inadequately served if no means were in place to bring proceedings in respect of mere recommendations as to the use of unfair terms, even if there was no actual use. Proceedings to challenge a recommendation are a very effective means of protecting consumers, as the unfairness of a particular term can be established once and for all at an early stage and its use in countless cases in practice can thus be prevented.
23 The determination of the scope of the application and of the protection afforded by Article 7(3) of Directive 93/13 must be based on its wording. It distinguishes between use and recommendations as to the use of an unfair term. It follows from this that the text seeks to regulate two separate matters. The view advocated by the Italian Government inadequately reflects this. If it were always necessary to show actual use, on the grounds that only then are the interests of consumers prejudiced, the difference between the two categories would be eliminated. If the author of the directive had intended this, he could have provided that proceedings were admissible when an unfair term is used or when its use is threatened. That does not correspond with the wording of Article 7(3) in any of the official languages. (6)
24 The reference to the requirements of the Italian Code of Civil Procedure makes it clear that Article 7(3) of the directive requires the introduction of a special protective remedy into the legal systems of the Member States, in the form of a preventive collective action. The references both to preventive remedies and to remedies in the form of collective actions indicate that the infringement of rights personal to the plaintiff is not required. They do not correspond to classical remedies, whose admissibility is predicated on prejudice being done to the personal interests of the plaintiff. To that extent they are special remedies and their incorporation into the law of the Member States - all of which require, in the same way as Italy, that the plaintiff can demonstrate a legal interest that requires to be protected - is accordingly very difficult. That must be taken into account in determining the requirements to be met by the national transpositional measures, without thereby restricting the scope of the rights created by Article 7(3) of Directive 93/13.
25 The Italian Government's argument based on Article 100 of the Code of Civil Procedure is unsound. There is settled case-law to the effect that a Member State may not plead provisions, practices or circumstances in its internal legal system in order to justify failure to comply with the obligations laid down by Community law. (7) Even if Article 100 of the Code of Civil Procedure lays down as a matter of principle that an action is not admissible where there is no legal interest to be protected, this does not relieve the Italian legislature of its duty to transpose Directive 93/13 by creating a right of action in respect of recommendations as to the use of unfair terms, even if the result is that the requirements of Article 100 of the Code of Civil Procedure are not complied with.
26 The reference by the Italian Government to Article 7(1) is as unproductive as the reference by the Commission to Article 7(2). In fact, Article 7(1) speaks of `use', whereas Article 7(2) speaks of contractual terms `... drawn up for general use ...'. The internal structure of Article 7 of the directive therefore seems to throw little light on the question.
27 The Commission's reference to Article 6 for the purposes of comparison is also of little assistance. This provision stipulates that the legal consequence of the use of an unfair term is that it is not binding. This substantive provision does not assist in reaching a conclusion on the procedural question whether or not actions against a recommendation are admissible.
28 Reference should be made to the penultimate recital of the directive, however. It states that `persons or organisations, if regarded under the law of a Member State as having a legitimate interest in the matter, must have facilities for initiating proceedings concerning terms of contract drawn up for general use in contracts concluded with consumers, and in particular unfair terms, either before a court or before an administrative authority competent to decide upon complaints or to initiate appropriate legal proceedings; ... this possibility does not, however, entail prior verification of the general conditions obtaining in individual economic sectors.' This recital, which refers to the provisions laid down in Article 7, admittedly appears at first instance to contemplate in its final section the absence of verification of recommendations that are not actually implemented, as `prior verification' is expressly excluded.
29 Nevertheless, this exclusion refers only to `general conditions' obtaining in individual economic sectors. The text does not elaborate further upon this concept, either in this recital or in other provisions. Its meaning is therefore not beyond doubt. It can be said however that it does not extend to express contractual terms. Otherwise, it would have incorporated a reference to this notion, which is to be found in other recitals (for example in the second, eighth and twelfth recitals) and in the operative part of the directive (for example in Article 1(2) and Article 2(a)), also in the penultimate recital. Furthermore, a `prior verification' is not necessarily to be identified with the admissibility of a preventive remedy which is concerned with recommendations as to the use of specific terms. A prior verification could also be a form of negative clearance. It follows that the penultimate recital does not prevent an interpretation of Article 7(3) of the directive which requires protective remedies to be created. This corresponds with the obiter dictum of the Court in Joined Cases C-240/98 to C-244/98. (8) It is not the case that the unfair term must actually be used.
(2) The relationship between Article 1469e of the Civil Code and Article 3 of Law No 281/98
30 Once it is accepted that Italy is required by virtue of Article 7(3) of Directive 93/13 to introduce a form of action against recommendations as to the use of unfair terms, it remains to be established to what extent this requirement has been met. The text of Article 1469e of the Civil Code refers only to a right of action against the use of contractual terms. The Italian courts (9) and most Italian legal writers (10) interpret the notion of `use' broadly, however, so as to include a recommendation as to the use of unfair terms. It remains to be established whether or not this interpretation of the provision by the courts and in literature is adequate in terms of legal certainty and legal clarity.
31 The Italian Government does not favour this interpretation, however. Its submission is that a preventive remedy may be founded primarily on Article 3 of Law No 281/98. In the context of an enquiry into the extent to which Article 3 of Law No 281/98 provides for a form of action against recommendations as to the use of unfair terms, the first question is whether, given the terms of Article 1469e of the Civil Code, the provision can be applicable at all. The Commission disputes this, referring to the general character of Law No 281/98. Under the principle of lex specialis Article 1469e of the Civil Code takes precedence as the more specific provision.
32 As already established, the wording of Article 1469e of the Civil Code does not allow for any right of action in respect of a recommendation as to the use of an unfair term. By contrast, the wording of Article 3 of Law No 281/98, which refers to acts and conduct, also allows for a right of action as regards recommendations as to the use of an unfair term. The scope of this provision accordingly extends at least in that respect beyond that of Article 1469e of the Civil Code.
33 Whether a legal rule is to be displaced by another by virtue of the principle of lex specialis depends not merely on the terms of the two texts, but above all on their legal consequences. Only if the legal consequences are mutually exclusive does logic require that the particular term displace the general. (11) The provisions of Article 1469e of the Civil Code and of Article 3 of Law No 281/98 lay down the conditions under which a remedy is available. On their wording, the scope of Article 3 is wider than that of Article 1469e of the Civil Code. The latter refers expressly only to the use of unfair terms, while the former extends to all measures and conduct which prejudice the interests of consumers and users. The two texts also differ as to the category of persons entitled to bring proceedings. The category defined in Article 3 is narrower and covers only the list of associations provided for by Article 5 of Law No 281/98. Article 1469e of the Civil Code on the other hand contains an abstract definition, to be applied by the court in individual cases. On this basis alone, doubts arise as to whether the two provisions may stand at all in a relationship of particularity, as they overlap only partially. Some cases are covered by Article 1469e of the Civil Code (complaints by associations not on the list provided for by Article 5 of Law No 281/98), some by Article 3 of Law No 281/98 (complaints against recommendations) and some by both texts (complaints against the use of unfair terms made by associations included in the list). They are also not mutually exclusive in terms of legal consequences, namely the availability of the remedy in each case. Neither the Italian Government nor the Commission has endeavoured to show that an action which is inadmissible under Article 1469e of the Civil Code cannot be declared admissible under Article 3 of Law No 281/98, provided that the conditions which it lays down are met, and vice versa. It therefore seems doubtful that the principle of lex specialis can be applied.
34 The result is no different if regard is had to the spirit and purpose of the provisions and the will of the legislator, to the extent that this is mirrored in the text of the laws. Directive 93/13 was indeed transposed into Italian law by Law No 52/96, which introduced Article 1469e of the Civil Code, as the parties to the dispute are agreed. The later Law No 281/98 refers however in Article 1(1) expressly to Community law and in Article 1(2)(e) to correctness, transparency and equity in contractual relations. There is nothing in this text to suggest that the rights of consumers are not to be extended by comparison with [those enjoyed under] Article 1469e of the Civil Code.
35 The principle of lex specialis might apply, at most, in favour of Article 1469e of the Civil Code if it were to be assumed that the Italian legislator had intentionally sought in Article 1469e of the Civil Code to exclude the possibility of introducing a right of action in respect of recommendations as to the use of a term. This would give substance to the Italian Government's initial submission that an action to challenge a recommendation would be fundamentally inadmissible, as a recommendation has no binding legal effect and accordingly cannot affect the rights of a consumer. On this reasoning, there is no legal interest to be protected, and such an interest is required as a matter of principle for an action to be admissible under Article 100 of the Code of Civil Procedure.
36 Against such an interpretation of the Italian Government's case there is however the fact that in its view Italian law provides a remedy in respect of recommendations, by virtue of Article 3 of Law No 281/98. The Commission, which denies that Article 7(3) has been transposed, does not seek to rely on any suggestion that the Italian legislator in enacting Article 1469e of the Civil Code intentionally sought to exclude a remedy in respect of recommendations.
37 It follows that the two provisions are of different scope. The application of Article 3 of Law No 281/98 is not excluded by Article 1469e of the Civil Code.
(3) The existence of a legal remedy in respect of recommendations
38 Once it is accepted that Article 7(3) of Directive 93/13 requires the existence of a preventive remedy against recommendations as to the use of an unfair term, and that the application of Article 3 of Law No 281/98 is not excluded by Article 1469e of the Civil Code, the question remains as to whether Italy has complied with its duty to transpose the directive with the enactment of Article 1469e of the Civil Code and Article 3 of Law No 281/98.
39 As already established, Article 3 of Law No 281/98 expressly provides for a remedy against measures and conduct prejudicial to the interests of consumers and users. (12) Those terms may be construed so as to include recommendations to use a particular unfair term in general conditions of contract. In terms of its content, therefore, Article 3(1)(a) of Law No 281/98 satisfies the requirement to transpose Article 7(3) of Directive 93/13.
40 An analysis of Italian case-law confirms that in Italy actions against recommendations as to the use of unfair terms under Article 3 of Law No 281/98 are considered to be admissible. (13)
41 The Commission is of the view that Article 3 of Law No 281/98 does not meet the requirements for correct transposition for two reasons. First, Article 3 of Law No 281/98 restricts unacceptably the category of persons entitled to bring proceedings. Secondly, it is of the opinion that the provision does not comply with the principles of legal certainty and legal clarity.
(a) Restriction of the category of persons entitled to bring proceedings under Article 3 of Law No 281/98
42 As to the Commission's first complaint, it observes that the Italian legislature had already taken the opportunity on enacting Article 1469e of the Civil Code to define the category of persons who may bring proceedings. The Italian Republic's defence on this is merely to refer to the text of Article 7(3) of Directive 93/13, which provides that regard is to be had for national laws in establishing which parties are to have this right.
43 Article 7(3) of Directive 93/13 expressly makes the provision of a right of action against recommendations as to the use of unfair terms subject to a reservation that it is to be `with due regard for national laws ...'. Similarly, Article 7(2), to which Article 7(3) refers, leaves it to Member States' domestic law to determine which parties and organisations are to have a legitimate interest in protecting consumers and are thus to be eligible to bring proceedings. The directive contains no provisions as to the size of the category of persons entitled to bring proceedings. It follows that as a matter of principle Italy is free to determine that category.
44 The Commission's argument is that Italy exercised its power with the adoption of Article 1469e and defined the category of persons entitled to bring proceedings as early as 1996. It cannot modify this by measures taken afterwards, in particular by the enactment of Article 3 of Law No 281/98. But there is no authority for such an interpretation in the text of the directive. Member States who have defined the category of persons entitled to bring proceedings are not prevented from changing them. Even if the Italian Republic were to have exhausted its power to define the categories of persons entitled to bring proceedings in enacting Article 1469e of the Civil Code, there is nothing whatsoever that prevents it from changing them by enacting Law No 281/98.
45 Since the provisions of Article 1469e of the Civil Code and of Article 3 of Law No 281/98 are of different scope, as mentioned above, there can also be no objection in principle to setting different limits on the respective categories of persons entitled to bring an action. The directive does not specify that the category of those entitled to challenge the use of an unfair term may not be wider than that of those entitled to challenge recommendations as to use. Such a distinction might in certain circumstances even be advisable. As confirmed by the observations of the Italian Government, the use of unfair terms is always prejudicial to the interests of protected consumers. That corresponds rather to the classical situation in which recourse to legal remedies is regarded as admissible. On the other hand, a mere recommendation as to the use of unfair terms does not prejudice the legal interests of consumers but merely threatens to do so. To balance the conflicting interests of the users of such terms and of the consumer, it would not be unreasonable for this preventive form of legal protection to be available only to a limited and specially qualified set of persons and organisations, so that abuses of process may be avoided. This might serve to avoid unnecessary proceedings. The Commission's objection in this respect must therefore be rejected.
(b) Lack of legal certainty and legal clarity
46 The Commission's second ground of complaint relates to the principles of legal certainty and legal clarity. The Commission submits that to interpret Article 3 of Law No 281/98 so as to allow for a remedy in respect of recommendations would be totally contradictory to Article 1469e of the Civil Code and Article 100 of the Code of Civil Procedure. Persons and associations entitled to bring an action are thereby placed in a position where it is not clear what rights they have and whether they may rely on them before the courts in appropriate cases.
47 Under Article 189 of the EC Treaty (now Article 249 EC) a directive is binding on the Member State to which it is addressed as regards the result to be achieved, but the choice of form and methods is left to the national authorities. Similarly, the Court has made it clear that there is no requirement that the provisions of a directive be incorporated formally and verbatim in a national law. A general legal context may, depending on the content of the directive, be adequate. In particular, general principles of constitutional or administrative law may make transposition by way of special legal or administrative provisions superfluous. In any event, the legal result arising from these principles must be adequately definite and clear, particularly where the directive confers rights on individuals. It must enable those who are intended to benefit to ascertain the full extent of their rights and where appropriate rely on them before the national courts. The last condition is of particular importance where the directive in question is intended to accord rights to nationals of other Member States, who are not normally informed of such principles. (14)
48 The case-law therefore makes it clear that the fact that Article 3 of Law No 281/98 does not expressly refer to the right to bring proceedings in respect of `recommendations' is not objectionable in principle. It should also be noted that the parties who benefited in terms of Article 7(2) and (3) of Directive 93/13 consist of qualified addressees. The persons and organisations entitled to bring proceedings under this provision are interest groups whose objects include the protection of the interests of consumers. There is settled case-law to the effect that the question of whether or not the necessary precision and clarity are present is to be determined from the point of view of the parties intended to benefit from the measure. (15) In her Opinion in Case C-145/99 Advocate General Stix-Hackl stated that where the parties concerned by a measure are qualified, higher standards are to be imposed than would normally be the case. (16) An equivalent approach is to be taken in the present case as regards the necessary legal precision and legal clarity, given that the group in question consists of experts and not the end-consumers who are targeted in the remainder of Directive 93/13. For reasons of proportionality, there is no need to impose excessive requirements as to clarity and precision in the context of transposition.
49 For these reasons, it is not appropriate in this case to follow the reasoning set out in the judgment in Case C-144/99. That case concerned the transposition of Articles 4 and 5 of the directive, which are directed to consumers. The present case involves qualified addressees. They may be expected to be familiar with the case-law concerning the admissibility of actions to challenge recommendations as also the interpretation of Article 1469e of the Civil Code and Article 3 of Law No 281/98.
50 According to the Report from the Commission of 27 April 2000 on the implementation of Directive 93/13, the Commission has initiated proceedings against all the Member States for failure to fulfil their Treaty obligations on the grounds of defective transposition of Directive 93/13. (17) In this context, it is worth mentioning that the legal systems of several of the Member States produce a result which appears to be similar to that which applies in Italy. But apparently as yet the Commission has in no case taken the proceedings for failure to implement Treaty obligations as far as it has taken them against Italy. (18)
51 It is interesting in this regard that the Commission's Report refers to another problem involving the transposition of Directive 93/13 in Italy, namely to what extent in emergency proceedings the notion of `good grounds' provides adequate protection, (19) but does not refer to the question at issue here, namely whether actions in respect of recommendations are admissible. Furthermore, the Report refers to the action brought against the Netherlands in Case C-144/99, which involved the transposition of Articles 4 and 5 of the directive. (20)
52 The Commission delivered its reasoned opinion under Article 169 of the EC Treaty (now Article 226 EC) in December 1998. At that time, the Italian courts provided protection against recommendations as to the use of unfair terms. They relied in this regard on either Article 1469e of the Civil Code or Article 3 of Law No 281/98. That is also in accordance with the prevailing academic view. It is accordingly arguable that the object of the directive of providing protection against recommendations as to the use of unfair terms has been met. The decision of the Italian legislator to achieve this protection by enacting two provisions of partially overlapping scope falls within the freedom provided by Article 189 of the EC Treaty (now Article 249 EC) to choose the means by which a directive is transposed. In those circumstances, it appears questionable whether in the present case there has been any failure to implement Treaty obligations.
53 On the other hand, it must be noted that national case-law interpreting provisions of domestic law in a manner in conformity with Community law is not sufficient to make those provisions into measures transposing the directive in question. (21) In its judgment in Case C-144/99, the Court of Justice decided as regards Directive 93/13 that interpretation of national legislation by the national courts in such a way as to ensure conformity with the directive did not amount to full transposition of its provisions, as it could not provide the clarity and precision needed to meet the requirement of legal certainty. That was particularly true in the field of consumer protection. (22) I agree with the reasoning of Advocate General Tizzano in his Opinion in this case, to the effect that recourse to the principle of interpretation in the light of Community law by a national court cannot replace the obligation of the legislature of that Member State to transpose the directive in a manner which is precise and free from doubt. (23) The obligation arising from a directive to achieve the result envisaged by the directive is binding on all the authorities of Member States. (24) In the context of their duty to transpose, Member States are required to establish a specific legal framework, the result of which is to bring the national legal system into conformity with the requirements of the directive. (25) The requirement for certainty and clarity is therefore one that requires to be met, perhaps even in the first place, by the legislator. The provision transposing the directive must be sufficiently clear and precise if it is to represent an adequate implementation of the directive.
54 In this regard, the dispute between the Commission and Italy serves to emphasise that the relationship between Article 1469e of the Civil Code and Article 3 of Law No 281/98 is very far from clear and certain. To some extent, the Italian courts treat Article 1469e of the Civil Code as a lex specialis vis-à-vis Article 3 of Law No 281/98, but grant protection in respect of recommendations on the basis of the former, and thus interpret these provisions in conformity with Community law. (26) In this regard, the persons and organisations entitled to bring proceedings under Article 7(3) of the directive cannot be expected to find the provisions adequately precise and clear and to find that they are placed in a position in which they can make themselves aware of these rights and rely on them before the Italian courts.
55 It follows that in transposing Article 7(3) of the directive into Italian law by enacting Article 1469e of the Civil Code and Article 3 of Law No 281/98 the principles of legal certainty and legal clarity were not adequately observed. The Italian Government has therefore failed to implement its obligation to transpose this provision.
VI - Costs
56 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the Italian Republic has failed in its submissions, and the Commission has sought payment of its costs, the Italian Republic should be ordered to pay the costs.
VII - Conclusion
57 I accordingly propose that the Court should hold that:
(1) The Italian Republic is in breach of its obligations under Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts by having failed to adopt the measures necessary to transpose in its entirety Article 7(3) of the directive.
(2) The Italian Republic is to bear the costs.
(1) - OJ 1993 L 95, p. 29.
(2) - `Disposizioni per l'adempimento di obblighi derivanti dall'appartenenza dell'Italia alle Comunità europee - legge comunitaria 1994', Gazzetta Ufficiale della Repubblica italiana (`GURI') No 34 of 10 February 1996, Supplemento ordinario No 24.
(3) - Article 1469e: `Le associazioni rappresentative dei consumatori e dei professionisti e le camere di commercio, industria, artigianato e agricoltura possono convenire in giudizio il professionista o l'associazioni di professionisti che utilizzano condizioni generali di contratto e richiedere all giudice competente che inibisca l'uso delle condizioni di cui sia accertata l'abusività ai sensi del presente capo.'
(4) - `Disciplina dei diretti dei consumatori e degli utenti', GURI No 189 of 14 August 1998.
(5) - Article 3: `Le associazioni dei consumatori e degli utenti inserite nell'elenco di cui all'articolo 5 sono legittimate ad agire a tutela degli interessi collettivi, richiedendo al giudice competente:
(a) di inibire gli atti i comportamenti lesivi degli interessi dei consumatori e degli utenti; ...'
(6) - Spanish: `... utilicen o recomienden que se utilicen ...';
Danish: `... anvender eller opfordrer til anvendelse ...';
German: `... verwenden oder deren Verwendung empfehlen ...';
English: `... use or recommend the use ...';
French: `... utilisent ou recommandent l'utilisation ...';
Greek: `... ðïõ ÷ñçóéìïðïéïýí Þ óõíéóôïýí ôç ÷ñçóéìïðïßçóç ôùí
áõôþí ...';
Italian: `... utilizzano o raccomandano l'inserzione ...';
Dutch: `... gebruik maken dan wel het gebruik aanbevelen ...';
Portuguese: `... utilizem ou recomendem a utilização ...';
Finnish: `... käyttävät ... samanlaisia ehtoja tai suosittavat niiden käyttöä;'
Swedish: `... använder eller rekommenderar användandet ...'.
(7) - Case C-423/99 Commission v Italy [2000] ECR I-11167, paragraph 10 and the references contained therein.
(8) - Joined Cases C-240/98 to C-244/98 Océano and Others [2000] ECR I-4941, paragraph 27. This case concerned the question of whether a national court can determine of its own motion that a jurisdiction clause is unfair.
(9) - Decisions of the Tribunale di Torino of 4 October 1996, Giurisprudenza italiana 1996, p. 788, in particular at p. 795; decision of the Tribunale di Torino of 7 June 1999 and 16 April 1999, Foro Italiano 2000, p. 297 et seq.; decisions of the Tribunale di Roma of 8 May 1998 and 18 June 1998, Foro Italiano 1998, I, column 3356; judgment of the Tribunale di Roma of 21 January 2000, Il Corriere Giuridico 2000, p. 496.
(10) - Carbone, P., `Clausole abusive', Danno e responsabilità 8-9/1999, p. 920 et seq.; Maniaci, A., `Tutela inibitoria e clausole abusive', I Contratti 1999, p. 16 et seq., in particular at p. 21; Minervini, E., `Tutela del consumatore e clausole vessatorie', Naples 1999, p. 211; Stella Richter, G., `Il tramonto di un mito; la legge eguale per tutti (dal diritto comune dei contratti al contratto dei consumatori)', Guistizia civile 1997, p. 206; Danovi, F., `L'azione inibitoria in materia di clausole vessatorie' Rivista di diritto processuale 1996, p. 1056.
For a contrary interpretation, according to which legal protection is afforded only in respect of actual use, see: decision of the Tribunale di Roma of 14 October 1998, I Contratti 1998, p. 580; decision of the Tribunale di Palermo of 23 February 1997, Vita notarile 1997, p. 704; Bellelli, A., `La tutela inibitoria, Commentario al Capo XIV bis del Codice Civile: dei contratti del consumatore', Le Nuove Leggi civili Commentate 1997, p. 1264; Calvi, G., Commento sub art. 1469e, in Cesaro (Ed.), Clausole vessatorie e contratto del consumatore, Padua, p. 675.
(11) - Larenz, K., Methodenlehre der Rechtswissenschaft, 6th edition (Berlin 1991), p. 268.
(12) - `... gli atti e i comportamenti lesivi degli interessi dei consumatori e degli utenti.'
(13) - Decision of the Tribunale di Torino of 3 October 2000, Il Corriere Giuridico 2001, p. 389 et seq.
(14) - Judgments in Case 29/84 Commission v Germany [1985] ECR 1661, paragraph 23, Case 363/85 Commission v Italy [1987] ECR 1733, paragraph 7, and Case C-236/95 Commission v Greece [1996] ECR I-4459, paragraph 13.
(15) - Judgments in Case C-131/88 Commission v Germany [1991] ECR I-825, paragraph 6, and Case C-59/89 Commission v Germany [1991] ECR I-2607, paragraph 18.
(16) - Opinion in Case C-145/99 Commission v Italy [2002] ECR I-2235, paragraphs 46 and 47.
(17) - COM(2000) 241 final, p. 7.
(18) - See the description at pp. 23 to 27 of the Report.
(19) - Page 9 of the Report.
(20) - Page 8 of the Report. See the judgment in Case C-144/99 Commission v Netherlands [2001] ECR I-3541.
(21) - Opinion of Advocate General Léger in Case C-236/95 Commission v Greece [1996] ECR I-4467, paragraph 26; Opinion of Advocate General Tizzano in Case C-144/99 Commission v Netherlands [cited in footnote 21, above], paragraph 36.
(22) - Judgment in Case C-144/99, paragraph 21.
(23) - Opinion in Case C-144/99, paragraph 35.
(24) - Judgment in Case 14/83 von Colson and Kamann [1984] ECR 1891, paragraph 26, and Case C-106/89 Marleasing [1990] ECR I-4135, paragraph 8.
(25) - Judgments in Case C-339/87 Commission v Netherlands [1990] ECR I-851, paragraph 25, Case C-59/89 Commission v Germany [1991] ECR I-2607, paragraph 28, and Case C-340/96 Commission v United Kingdom [1999] ECR I-2023, paragraph 27.
(26) - Decision of the Tribunali di Roma of 21 January 2000, Il Corriere Giuridico 2000, p. 496.
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