THE COMPULSORY TARIFFS FOR THE FEES PAYABLE TO MEMBERS OF THE ITALIAN
BAR ARE NOT CONTRARY TO THE TREATY PROVISIONS ON COMPETITION
Mr Arduino was convicted of a breach of the road traffic legislation which
caused an accident and thus had to pay the other party's legal fees included
in the costs. Since the Pretore di Pinerolo did not apply the tariff corresponding
to the scale of fees laid down in Italy in respect of the services of members
of the Bar, the Italian Court of Cassation held that decision to be unlawful
and referred the case back to that court on this point.
Whether that fee scale is an agreement restricting competition is the question
about which there are two conflicting lines of case-law in Italy:
- according to the first, the national court must disapply
that tariff which is comparable to the tariff for customs agents on which the
Court of Justice gave a ruling in 1998. The National Council of the Bar (the
Consiglio nazionale forense, "the CNF") is regarded as an association
of undertakings and is not bound by the public interest in respect of the determination
of fees;
- according to the second, that scale is not the result
of a discretionary decision of the National Council of the Bar, but an act of
the State which plays a decisive role in the process of fixing the tariffs.
The Pinerolo court thus asked the Court of Justice of the European Communities
for a preliminary ruling on whether the legal provisions on the determination
of the scale of fees and emoluments payable to members of the Bar are compatible
with Community competition law. In Italy, the tariffs fixing minimum and maximum
limits for the remuneration of members of the Bar are proposed by the CNF, composed
of elected members of the Bar, and must be approved by the Minister for Justice
who, after consulting the Interministerial Committee on Prices (Comitato interministeriale
dei prezzi, "the CIP"), adopts a ministerial decree. The tariff approved
by the Minister is based on criteria relating to the monetary value of disputes,
the level of the court seised and, in criminal matters, the duration of the
proceedings.
Furthermore, fees are settled by the national court, which takes account of
the seriousness and number of the issues dealt with. The maximum and minimum
limits of the tariff must be respected, although the court may derogate from
those limits if it gives reasons for its decision.
The Court has pointed out that the fact that a Member State entrusts a professional
organisation with the production of a draft tariff for services does not automatically
divest the tariff finally adopted of the character of legislation and therefore
does not necessarily bring it within the scope of Community competition law.
As regards the Italian situation, the Court has noted that the CNF must present
every two years a draft tariff for fees payable to members of the Bar including
minimum and maximum limits but does not have to concern itself with the public
interest or, in particular, the interest of persons who use the services of
members of the Bar.
However, the Court has held that the Italian State has not waived its power
of review or decision in respect of the tariff. The draft is not compulsory,
the Minister has the power to have it amended and is assisted by two public
bodies, and the court enjoys discretion in implementing the tariff. In those
circumstances, the provision retain the character of legislation and there is
no delegation to private economic operators.
The Italian legislation is therefore not contrary, on this point, to Community
law.
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The hearing can be viewed on "Europe by Satellite" Audiovisual Service, European Commission, L-2920 Luxembourg, tel. (* 352) 4301 32392, fax (* 352) 4301 35249, or B-1049 Brussels, tel. (*32) 2 2950786, fax (*32) 2 2301280 |