By this application, the Commission asked the Court to declare that, by maintaining provisions which obliged lawyers to comply with maximum tariffs, the Italian Republic had failed to fulfil its obligations under Articles 43 EC and 49 EC.
The profession of lawyer is regulated in Italy by Regio decreto legge n. 1578 – ordinamento delle professioni di avvocato e procuratore legale (Royal Decree-Law No 1578 governing the professions of lawyer and ‘procuratore legale’). Pursuant to Articles 52 to 55 of the Royal Decree-Law, the Consiglio nazionale forense (National Council of Lawyers; ‘the CNF’) is established under the auspices of the Minister for Justice and consists of lawyers elected by their fellow members, with one representative for each appeal court district.
Article 57 of the Royal Decree-Law provides that the criteria for determining fees and emoluments payable to lawyers and ‘procuratori’ in respect of both civil and criminal proceedings and out-of-court work are to be determined every two years by decision of the CNF. Those criteria must then be approved by the Minister for Justice after he has obtained the opinion of the Comitato interministeriale dei prezzi (Interministerial Committee on Prices) and consulted the Consiglio di Stato (Council of State). Lawyers’ charges and fees have been regulated successively by several ministerial decrees.
The Italian law transposing Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services, extended the obligation to comply with the professional tariffs in force to lawyers from other Member States who performed court and out-of-court activities in Italy.
The Commission argued that the contested provisions had the effect of discouraging lawyers established in other Member States from establishing themselves in Italy or from temporarily providing their services there and, as a result, constituted restrictions on the freedom of establishment within the meaning of Article 43 EC and the freedom to provide services within the meaning of Article 49 EC.
The Court reiterated that measures which prohibit, impede or render less attractive the exercise of such freedoms constitute such restrictions (see, inter alia, Case C‑439/99 Commission v Italy ; Case C‑442/02 CaixaBank France ; Case C‑451/03 Servizi Ausiliari Dottori Commercialisti ; and Case C‑330/07 Jobra ).
In particular, the concept of restriction covered measures taken by a Member State which, although applicable without distinction, affect access to the market for economic operators from other Member States (see, inter alia, Case C-518/06 Commission v Italy [2009).
The Court held that the contested provisions applied without distinction to all lawyers providing services on Italian territory. The Court reiterated that rules of a Member State did not constitute a restriction within the meaning of the EC Treaty solely by virtue of the fact that other Member States applied less strict, or more commercially favourable, rules to providers of similar services established in their territory (see, inter alia, Case C-518/06 Commission v Italy ).
According to the Court, the existence of a restriction within the meaning of the Treaty could not therefore be inferred from the mere fact that lawyers established in Member States other than the Italian Republic must become accustomed to the rules applicable in that latter Member State for the calculation of their fees for services provided in Italy.
By contrast, such a restriction existed, in particular, if those lawyers were deprived of the opportunity of gaining access to the market of the host Member State under conditions of normal and effective competition (see Joined Cases C‑94/04 and C‑202/04 Cipolla and Others ; and Case C‑384/08 Attanasio Group ).
The Court found that the Commission had not, however, demonstrated that the contested provisions had such an object or effect.