Joined Cases C‑427/16 and C‑428/16

CHEZ Elektro Bulgaria AD

v

Yordan Kotsev

and

FrontEx International EAD

v

Emil Yanakiev

(Requests for a preliminary ruling from the Sofiyski rayonen sad)

(Reference for a preliminary ruling — Competition — Freedom to provide services — Setting of minimum fee amounts by a lawyers’ professional organisation — Court prohibited from ordering reimbursement of fees in an amount less than those minimum amounts — National legislation considering value added tax (VAT) to form part of the price of a service provided in the performance of professional activities)

Summary — Judgment of the Court (First Chamber), 23 November 2017

1. Competition—EU rules—Obligations of the Member States—National legislation enabling operators to fix tariffs with due regard for public-interest criteria including where powers to approve or fix tariffs are not delegated—Whether permissible

   (Art.4(3) TEU; Art. 101(1) TFEU)

2. Competition—EU rules—Obligations of the Member States—National legislation preventing a lawyer and his client from agreeing remuneration in an amount less than the minimum amounts laid down by a national lawyers’ professional organisation—National courts prohibited from ordering reimbursement of fees in an amount less than those minimum amounts—Not permissible

   (Art.4(3) TEU; Art. 101(1) TFEU)

3. Freedom to provide services—Lawyers—Directive 77/249—Scope—Arrangements for reimbursement, ordered by a national court, of the remuneration of providers of legal services—Not included

   (Art. 4(3) TEU; Art. 101(1) TFEU; Council Directive 77/249)

4. Harmonisation of fiscal legislation—Common system of value added tax—Taxable amount—Supply of goods and services—National legislation considering value added tax (VAT) to form part of lawyers’ fees which consequently entails double taxation of those fees—Not permissible

   (Council Directive 2006/112, Art. 78, first para., (a))

1.  Article 101 TFEU, read in conjunction with Article 4(3) TEU, is infringed where a Member State requires or encourages the adoption of agreements, decisions or concerted practices contrary to Article 101 TFEU or reinforces their effects, or where it divests its own rules of the character of legislation by delegating to private economic operators responsibility for taking decisions affecting the economic sphere (judgment of 21 September 2016, Etablissements Fr. Colruyt, C‑221/15, EU:C:2016:704, paragraph 44 and the case-law cited). That is not the case in a situation where the tariffs are fixed with due regard for the public-interest criteria defined by law and the public authorities do not delegate their rights and powers to private economic operators even if representatives of the economic operators are not in the minority on the committee proposing those tariffs (see, to that effect, judgment of 4 September 2014, API and Others, C‑184/13 to C‑187/13, C‑194/13, C‑195/13 and C‑208/13, EU:C:2014:2147, paragraph 31).

   A tariff established by a professional organisation may nonetheless have the character of legislation, inter alia, where the members of that organisation are experts who are independent of the economic operators concerned and they are required, under the law, to set tariffs taking into account not only the interests of the undertakings or associations of undertakings in the sector which has appointed them but also the public interest and the interests of undertakings in other sectors or users of the services in question (see, to that effect, judgment of 4 September 2014, API and Others, C‑184/13 to C‑187/13, C‑194/13, C‑195/13 and C‑208/13, EU:C:2014:2147, paragraph 34 and the case-law cited). In order to ensure that the members of a professional organisation in fact operate in compliance with the general public interest that the law seeks to achieve, the criteria for that interest must be defined in law sufficiently precisely, there must be actual review and the State must have the power to adopt decisions in the last resort (see, to that effect, judgment of 4 September 2014, API and Others, C‑184/13 to C‑187/13, C‑194/13, C‑195/13 and C‑208/13, EU:C:2014:2147, paragraph 41).

   (see paras 42, 43, 45, 46)

2.  Article 101(1) TFEU, read in conjunction with Article 4(3) TEU must be interpreted as meaning that national legislation, such as that at issue in the main proceedings, which, first, does not allow a lawyer and his client to agree remuneration in an amount below the minimum amount laid down in a regulation issued by a lawyers’ professional organisation, such as the Vissh advokatski savet (Supreme Council of the Legal Profession, Bulgaria), without that lawyer being subject to a disciplinary procedure, and, secondly, which does not authorise the courts to order reimbursement of fees in an amount less than that minimum amount, is capable of restricting competition in the internal market within the meaning of Article 101(1) TFEU. It is for the referring court to confirm whether such legislation, in the light of the specific detailed rules for the application thereof, actually meets legitimate objectives and whether the restrictions thus imposed are limited to what is necessary to ensure that those legitimate objectives are given effect.

   It follows that, having regard to the lack of provisions capable of ensuring that the Supreme Council of the Legal Profession conducts itself as an arm of the State working in the public interest subject to actual review and the power to adopt decisions in the last resort by the State, a professional organisation such as the Supreme Council of the Legal Profession must be considered to be an association of undertakings within the meaning of Article 101 TFEU when it adopts regulations determining the minimum amounts of lawyers’ remuneration. It must be stated, in that regard, that the fixing of minimum amounts for lawyers’ remuneration, which are made mandatory by national legislation such as that at issue in the main proceedings, by preventing other providers of legal services from setting remuneration amounts lower than those minimum amounts, amounts to the horizontal fixing of mandatory minimum tariffs (see, by analogy, judgment of 4 September 2014, API and Others, C‑184/13 to C‑187/13, C‑194/13, C‑195/13 and C‑208/13, EU:C:2014:2147, paragraph 43).

   (see paras 49, 51, 58, operative part 1)

3.  Article 101(1) TFEU, read in conjunction with Article 4(3) TEU and Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services, must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, by virtue of which individuals and sole traders obtain reimbursement of lawyers’ remuneration, ordered by a national court, if they have been defended by a legal adviser. Furthermore, since Directive 77/249 does not contain any provision governing the reimbursement, ordered by a court, of the remuneration of providers of legal services, it must be held that that national legislation does not fall within the scope of Directive 77/249.

   (see paras 62, 63, operative part 2)

4.  Point (a) of the first subparagraph of Article 78 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as precluding national legislation such as that at issue in the main proceedings, by virtue of which VAT forms an inseparable component part of a registered lawyers’ fees, if that legislation leads to double taxation of those fees in respect of VAT.

   In that regard, it must be borne in mind that, by virtue of the Court’s case-law, the principle of fiscal neutrality inherent in the common system of VAT precludes the taxation of a taxable person’s business activities leading to double taxation (see, to that effect, judgments of 23 April 2009, Puffer, C‑460/07, EU:C:2009:254, paragraph 46, and of 22 March 2012, Klub, C‑153/11, EU:C:2012:163, paragraph 42).

   (see paras 66, 68, operative part 3)