ORDER OF THE COURT (Fifth Chamber)

11 February 2004 (1)

(Reference for a preliminary ruling - Inadmissibility)

In Joined Cases C-438/03, C-439/03, C-509/03 and C-2/04,

REFERENCE to the Court under Article 234 EC by the Giudice di pace di Bitonto (Italy) for a preliminary ruling in the proceedings pending before that court between

Antonio Cannito

and

Fondiaria Assicurazioni SpA (C-438/03),

and between

Pasqualina Murgolo

and

Assitalia SpA (C-439/03),

and between

Vincenzo Manfredi

and

Lloyd Adriatico Assicurazioni SpA (C-509/03),

and between

Nicolò Tricarico

and

Assitalia Assicurazioni SpA (C-2/04),

on the interpretation of, inter alia, Article 81 EC and Article 82 EC,

THE COURT (Fifth Chamber),

composed of: C. Gulmann, President of the Chamber, S. von Bahr (Rapporteur) and R. Silva de Lapuerta, Judges,

Advocate General: L.A. Geelhoed,

Registrar: R. Grass,

after hearing the Advocate General,

makes the following

Order

1.

    By orders of:

-    6 October 2003, received at the Court on 16 October 2003 (C-438/03 and C-439/03),

-    21 November 2003, received at the Court on 4 December 2003 (C-509/03),

-    and 20 December 2003, received at the Court on 5 January 2004 (C-2/04),

-    the Giudice di pace di Bitonto (Magistrates' Court, Bitonto) referred to the Court for a preliminary ruling a number of questions on the interpretation of, inter alia, Article 81 EC and Article 82 EC.

2.

    Those questions were raised in actions for damages brought by Antonio Cannito, Pasqualina Murgolo, Vincenzo Manfredi and Nicolò Tricarico against the insurance companies Fondiaria Assicurazioni SpA, Assitalia Assicurazioni SpA, Lloyd Adriatico Assicurazioni SpA and Assitalia Assicurazioni SpA respectively, who, according to the Autorità Garante della Concorrenza e del Mercato (Italian Competition Authority; 'AGCM'), were involved in a cartel in the insurance sector.

The main proceedings and the questions referred

3.

    According to the orders for reference, the AGCM took a decision on a cartel set up by various insurance companies in the area of civil liability for road accidents. That decision, challenged by the undertakings concerned, gave rise to a judgment of 5 July 2001 of the Tribunale amministrativo regionale del Lazio (Italy) (Regional Administrative Court, Lazio), then to a judgment of 23 April 2002 of the Consiglio di Stato (Italy) (Council of State).

4.

    Believing that it was necessary to interpret, inter alia, Article 81 EC and Article 82 EC in order to resolve the disputes before it, the Giudice di pace di Bitonto decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling:

-    In Cases C-438/03 and C-439/03:

‘1.    Do the facts as found in Judgment No 2199 of the Consiglio di Stato (Council of State) of 23 April 2002 and in Judgment No 6139 of the Tribunale amministrativo regionale del Lazio of 5 July 2001, which are deemed to be set out here in full, constitute infringements of Community law, in particular of Articles 81 EC and 82 EC?

2.    Does an infringement of Articles 81 EC and 82 EC imply an obligation on the part of the person committing it to compensate end users, and all those who demonstrate that they have suffered any injury, for damage suffered?

3.    In assessing the amount of damages, in addition to the restitution of sums charged in breach of Community rules, is the national court required (again as a matter of Community law) to award the injured party a sum by way of punitive damages against those persons responsible for the prohibited agreement or abuse of a dominant position?

4.    Does Community law also require the payment of damages for non-material loss?

5.    As a matter of Community law, is the national court required of its own motion to order the payment of punitive damages or damages for non-material loss?

6.    Is the limitation period of one year for bringing an action for damages for breach of Articles 81 EC and 82 EC under Italian law too short and therefore in conflict with Community law?

7.    As a matter of Community law, for the purposes of the limitation period for bringing an action for damages, does time begin to run from the day on which the infringement of Articles 81 EC and 82 EC was committed or the day on which that infringement came to an end?

8.    Does Community law require national courts to disapply national rules in conflict with Community law or rather to interpret them so as to comply with Community law?’

-    In Cases C-509/03 and C-2/04:

‘1.    Do the facts as found in Judgment No 2199 of the Consiglio di Stato of 23 April 2002 and in Judgment No 6139 of the Tribunale amministrativo regionale del Lazio of 5 July 2001, which are deemed to be set out here in full, and the decision of the Italian AGCM to which both those judicial decisions refer (concerning a cartel set up by various insurance companies in the area of civil liability for road accidents) constitute infringements of Community law, in particular of Articles 81 EC and 82 EC?

2.    Does an infringement of Articles 81 EC and 82 EC imply an obligation on the part of the person committing it to compensate end users, and all those who demonstrate that they have suffered any injury, for damage suffered?

3.    In assessing the amount of damages, in addition to the restitution of sums charged in breach of Community rules, is the national court required (again as a matter of Community law) to award the injured party a sum by way of punitive damages against those persons responsible for the prohibited agreement or abuse of a dominant position?

4.    Does Community law also require the payment of damages for non-material loss?

5.    As a matter of Community law, is the national court required of its own motion to order the payment of punitive damages or damages for non-material loss?

6.    Is the limitation period of one year for bringing an action for damages for breach of Articles 81 EC and 82 EC under Italian law too short and therefore in conflict with Community law?

7.    As a matter of Community law, for the purposes of the limitation period for bringing an action for damages, does time begin to run from the day on which the infringement of Articles 81 EC and 82 EC was committed or the day on which that infringement came to an end?

8.    Is there a conflict between Community competition law and/or the fundamental principles of Community law (with reference in particular to Article 6(1) and Article 13 of the European Convention on Human Rights) and a national provision having an effect similar to that in the second paragraph of Article 3 of Italian Law No 287 of 10 October 1990 which requires a consumer or a third party who has suffered damage as a result of an agreement which is unlawful and void under Article 81 EC or an abuse of a dominant position unlawful under Article 82 EC and who seeks to obtain damages to make an application to a court other than the one which has jurisdiction ratione loci, ratione materiae and for the value of the dispute in accordance with the ordinary national rules on jurisdiction, Article 33 of Law No 287/90 involving an increase in the cost and duration of the case which would not occur had the ordinary national rules on jurisdiction ratione loci, ratione materiae and for the value of the dispute applied?

9.    Is there a conflict between Community competition law and/or the fundamental principles of Community law (with reference in particular to Article 6(1) and Article 13 of the European Convention on Human Rights) and a national provision which requires a consumer or a third party who has suffered damage as a result of an agreement which is unlawful and void under Article 81 EC or an abuse of a dominant position unlawful under Article 82 EC and who seeks to obtain damages to make an application to a court other than the one which has jurisdiction ratione loci on the basis of the registered office (sede) of the subsidiary of the insurance company with which they entered into a contract or in the court district in which the injured party is resident, having regard also to the difference in legal costs which each approach involves?

10.    Does Community law require national courts to disapply national rules in conflict with Community law or rather to interpret them so as to comply with Community law?’

Joining the cases

5.

    Since Cases C-438/03, C-439/03, C-509/03 and C-2/04 concern related subject-matter, they should be joined for the purposes of this order in accordance with Article 43 of the Rules of Procedure.

Admissibility

6.

    It is important to note that the need to provide an interpretation of Community law which will be of use to the national court makes it necessary that the national court define the factual and legal context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based (see, in particular, Joined Cases C-320/90 to C-322/90 Telemarsicabruzzo and Others [1993] ECR I-393, paragraph 6, Case C-157/92 Banchero [1993] ECR I-1085, paragraph 4, Joined Cases C-128/97 and C-137/97 Testa and Modesti [1998] ECR I-2181, paragraph 5, Case C-9/98 Agostini [1998] ECR I-4261, paragraph 4, Case C-422/98 Colonia Versicherung and Others [1999] ECR I-1279, paragraph 4, Case C-176/96 Lehtonen and Castors Braine [2000] ECR I-2681, paragraph 22, and Case C-116/00 Laguillaumie [2000] ECR I-4979, paragraph 15). That requirement is of particular importance in the area of competition, where the factual and legal situations are complex (Banchero, cited above, paragraph 5, Lehtonen and Castors Braine, cited above, paragraph 22, and Laguillaumie, cited above, paragraph 19).

7.

    The Court has also stressed the importance of the national court stating the precise reasons which prompted it to question the interpretation of Community law and to consider it necessary to refer questions to the Court of Justice for a preliminary ruling (Case C-101/96 Italia Testa [1996] ECR I-3081, paragraph 6, Testa and Modesti, cited above, paragraph 15, and Agostini, cited above, paragraph 6). Accordingly, the Court has held that it is essential that the national court should give at the very least some explanation of the reasons for the choice of the Community provisions of which it requests an interpretation and on the link it establishes between those provisions and the national legislation applicable to the dispute (Case C-167/94 Grau Gomis and Others [1995] ECR I-1023, paragraph 9, and Laguillaumie, cited above, paragraph 16).

8.

    Finally, the information provided in orders for reference must not only be such as to enable the Court usefully to reply but must also make it possible for the governments of the Member States and other interested parties to submit observations pursuant to Article 23 of the Statute of the Court of Justice (Colonia Versicherung, cited above, paragraph 5). It is the Court's duty to ensure that the opportunity to submit observations is safeguarded, bearing in mind that, by virtue of the abovementioned provision, only the orders for reference are notified to the interested parties (Joined Cases 141/81, 142/81 and 143/81 Holdijk and Others [1982] ECR 1299, paragraph 6, Case C-326/95 Banco de Fomento e Exterior [1996] ECR I-1385, paragraph 7, Lehtonen and Castors Braine, cited above, paragraph 23, and Laguillaumie, cited above, paragraph 14).

9.

    It must be stated that the orders for reference do not contain sufficient information to meet those requirements.

10.

    The orders for reference in this case do not define the factual and legal context of the questions the national court is asking. Nor do they explain the factual circumstances on which those questions are based. The orders merely state that that court considered it necessary to submit questions to the Court of Justice for a preliminary ruling in order to be able to decide the main proceedings.

11.

    In addition, the national court does not explain the alleged link between Article 81 EC and Article 82 EC and the facts or national legislation applicable. And in particular, it does not specify of what the cartel between the insurance companies contrary to Article 81 EC or the abuse of a dominant position which is challenged under Article 82 EC consists. It does not state anything further on the national provisions which it should interpret so as to comply with Community law or disapply, as necessary.

12.

    In those circumstances, a mere reference to the facts found in other judgments or in a decision of the competent competition authority would not, in any event, enable the Court usefully to reply or put the governments of the Member States in a position to submit observations.

13.

    It must therefore be held at this stage of the proceedings, pursuant to Articles 92(1) and 103(1) of the Rules of Procedure of the Court, that the questions referred are manifestly inadmissible.

Costs

14.

    Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Fifth Chamber),

hereby orders:

1)    Cases C-438/03, C-439/03, C-509/03 and C-2/04 are joined for the purposes of this order.

2)    The references for a preliminary ruling by the Giudice di pace di Bitonto by orders of 6 October 2003 (C-483/03 and C-439/03), 21 November 2003 (C-509/03) and 20 December 2003 (C-2/04) are inadmissible.

Luxembourg, 11 February 2004.

R. Grass

C. Gulmann

Registrar

President of the Fifth Chamber

1: Language of the case: Italian.