Since there are two conflicting lines of case-law in Italy on the nature of that fee scale, the court in Pinerolo has asked the Court of Justice of the European Communities whether the scale of lawyers' fees is compatible with Community competition law.

In practice, lawyers' tariffs are proposed by the National Council of the association of lawyers ("the CNF") and approved by the Minister for Justice (by ministerial decree).

Advocate General Léger delivered his Opinion today.

The Opinion of the Advocate General is not binding on the Court. The Advocate General's duty, acting with complete independence, is to propose to the Court a legal solution for the case for which he is responsible.

The Advocate General pointed out, first, that although Community competition law is not concerned with State measures as such, but solely the conduct of undertakings, the Member States must none the less refrain from adopting measures which may render ineffective the competition rules applicable to undertakings.

- Advocate General Léger took the view that lawyers practise in Italy on the market for legal services with a view to making a profit and that, in consequence, they carry on an economic activity for the purposes of the Treaty. Italian lawyers must thus be regarded, in his view, as undertakings subject to Community competition law.

The CNF is an association of undertakings, according to Advocate General Léger. In fixing tariffs, this body, composed exclusively of lawyers, is not required by law to take its decisions in the public interest. Its decisions, in particular those proposing a fee scale to the public authorities, thus constitute decisions of associations of undertakings for the purposes of Community competition law.

- The CNF decision proposing a fee scale constitutes, however, according to the Advocate General, a mere preparatory act in the Italian legislative procedure, which is of a purely consultative nature. That decision, and its submission to the Italian authorities, are not themselves contrary to Community competition law. They correspond, in reality, to the exercise of the right of natural or legal persons to organise themselves in order to submit their requests to the Government or the legislature.

- None the less, Advocate General Léger examined whether the adoption by the authorities of a ministerial decree approving the fee scale reinforces the effects of a decision of an association of undertakings.

According to the Advocate General, it is in fact possible that the ministerial decree appreciably restricts competition even if the conduct of the CNF at the root of the State action is not, of itself, contrary to Community competition law. Furthermore, Advocate General Léger takes the view that, in such a case, the Member State must justify its conduct under Community law. There may be legitimate reasons for it to reinforce the effects of an agreement, decision or concerted practice.

Since he took the view that the ministerial decree denies consumers the opportunity to acquire the goods or services concerned at the best price, the Advocate General found that the decision of the Italian State restricts competition.

Advocate General Léger then examined whether the restriction of competition is justified. He proposed that that assessment should ascertain:

- whether there is effective control by the public authorities over the content of the CNF decision;

- whether the regulatory or legislative measure pursues an aim in the public interest;

- whether the measure is proportionate to the aim pursued.

The Advocate General Léger takes the view that it is for the court in Pinerolo to ascertain whether those three conditions are satisfied.

N.B.: Advocate General Léger also delivered his Opinion today in Case C-309/99 Wouters and Others on the compatibility of a prohibition on multi-disciplinary partnerships between lawyers and accountants with Community competition law.

Unofficial document for media use only; not binding on the Court of Justice. Available in Dutch, English, French, German, Italian and Spanish. For the full text of the Opinion, please consult our Internet page www.curia.eu.int  at approximately 15.00 hrs today. For further information please contact Fionnuala Connolly: Tel: (00 352) 4303 3355; Fax: (00 352) 4303 2731