Request for a preliminary ruling from the Sofiyski rayonen sad (Bulgaria) lodged on 4 July 2022 – Em akaunt BG ЕООD v Zastrahovatelno aktsionerno druzhestvo ‘Armeets’ AD
(Case C-438/22)
Language of the case: Bulgarian
Referring court
Sofiyski rayonen sad
Parties to the main proceedings
Applicant: Em akaunt BG ЕООD
Defendant: Zastrahovatelno aktsionerno druzhestvo ‘Armeets’ AD
Questions referred
Must Article 101(1) TFEU, as interpreted in the judgment in Joined Cases C-427/16 and C-428/16, 1 CHEZ Elektro Bulgaria, be understood as meaning that national courts may disapply a rule of national law under which the court is not entitled to order the unsuccessful party to pay the costs for lawyers’ remuneration in an amount which is less than a minimum amount set by a regulation adopted only by a professional association of lawyers, such as the Vissh advokatski savet (Supreme Bar Council, Bulgaria), where that regulation is not limited to the attainment of legitimate objectives, not only in relation to the contracting parties but also in relation to third parties who would be ordered to pay the costs of the proceedings?
Must Article 101(1) TFEU, as interpreted in the judgment in Joined Cases C-427/16 and C-428/16, CHEZ Elektro Bulgaria, be understood as meaning that the legitimate objectives justifying the application of a rule of national law under which the court is not entitled to order the unsuccessful party to pay the costs for lawyers’ remuneration in an amount which is less than a minimum amount set by a regulation adopted by a professional association of lawyers, such as the Supreme Bar Council (Bulgaria), are to be regarded as having been defined by law, and the court may disapply the national rule where it does not find that those objectives are exceeded in the specific case, or, conversely, must it be assumed that the rule of national law is inapplicable unless it is found that those objectives have been attained?
Under Article 101(1) TFEU, in conjunction with Article 2 of Regulation (EC) No 1/2003, 1 which party, in a civil dispute in which the unsuccessful party is ordered to pay the costs, is required to establish the existence of a legitimate objective and the proportionality of pursuing it by means of a regulation concerning the lowest possible level of lawyers’ remuneration adopted by a professional association of lawyers where a reduction in the lawyers’ remuneration is sought on the ground of excessiveness – the party seeking the award of costs or the unsuccessful party seeking a reduction in the remuneration?
Must Article 101(1) TFEU, as interpreted in the judgment in Joined Cases C-427/16 and C-428/16, CHEZ Elektro Bulgaria, be understood as meaning that a public authority, such as the Narodno sabranie (National Assembly, Bulgaria), when delegating the adoption of minimum prices to a professional association of lawyers by way of a regulation, must expressly specify the specific methods by which the proportionality of the restriction is to be determined, or must it instruct the professional association to discuss them when adopting the regulation (for example in the explanatory memorandum to the draft or in other preparatory documents), and, if such methods are not taken into account, must the court, where appropriate, disapply the regulation without examining the specific amounts, and is the existence of a reasoned discussion of such methods sufficient to presume that the rule is limited to what is necessary to achieve the legitimate objectives set?
If Question 4 is answered in the negative, must Article 101(1) TFEU, as interpreted in the judgment in Joined Cases C-427/16 and C-428/16, CHEZ Elektro Bulgaria, be understood as meaning that the court must assess the legitimate objectives justifying the application of a rule of national law under which the court is not entitled to order the unsuccessful party to pay the costs for lawyers’ remuneration in an amount which is less than a minimum amount set by a regulation adopted by a professional association of lawyers, such as the Supreme Bar Council (Bulgaria), and the proportionality of those objectives, with regard to the effect on the amount specifically provided for in respect of the case concerned, and to disapply that amount where it exceeds what is necessary to achieve the objectives, or must the court investigate, in principle, the nature of the criteria provided for in the regulation for the determination of the amount and the manner in which those criteria manifest themselves, and, if it finds that in certain cases they might exceed what is necessary to achieve the objectives, to disapply the rule in question in all cases?
If the guarantee of high-quality legal services is regarded as a legitimate objective of the minimum remuneration, does Article 101(1) TFEU then allow the minimum amounts to be set solely on the basis of the nature of the case (subject matter of the claim), the material interest in the case and, in part, the number of hearings held, without taking into account other criteria such as the existence of factual complexity, the applicable national and international rules, and so forth?
If the answer to Question 5 is that the national court is to assess, separately for each case, whether the legitimate objectives of ensuring effective legal protection may justify the application of the legal rule for the minimum amount of remuneration, what criteria must the court use to assess the proportionality of the minimum amount of remuneration in the specific case if it considers that a minimum amount is regulated with the objective of ensuring effective legal protection at national level?
Must Article 101(1) TFEU, in conjunction with the third paragraph of Article 47 of the Charter of Fundamental Rights, be interpreted as meaning that, for the purpose of assessing Question 7, account must be taken of rules, approved by the executive, on the remuneration payable by the State to court-appointed lawyers which constitutes – by virtue of a statutory reference – the maximum amount that can be reimbursed to successful parties represented by an in-house legal adviser?
Must Article 101(1) TFEU, in conjunction with Article 47 of the Charter of Fundamental Rights, be interpreted as meaning that the national court, for the purpose of assessing Question 7, is required to specify a level of remuneration which is sufficient to achieve the objective of ensuring high-quality legal protection and which it must compare with the level of remuneration resulting from the legal rule, and to state the reasons for the level which it has determined using its discretion?
Must Article 101(2) TFEU, in conjunction with the principles of the effectiveness of domestic procedural remedies and the prohibition of abuse of rights, be interpreted as meaning that, where a national court finds that a decision of an association of undertakings infringes the prohibitions on the restriction of competition by fixing minimum tariffs for its members, without there being any valid reasons for allowing such interference, it is obliged to apply the minimum tariff rates laid down in that decision, since they reflect the actual market prices of the services to which the decision relates, because all persons providing the service in question are required to be members of that association?
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1 EU:C:2017:890.
1 Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).