7.3.2009

EN

Official Journal of the European Union

C 55/12

(Case C-565/08)

(2009/C 55/19)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: E. Traversa and L. Prete, acting as Agents)

Defendant: Italian Republic

Forms of order sought

—Declare that the Italian Republic has failed to fulfil its obligations under Articles 43 EC and 49 EC by adopting provisions fixing compulsory ceilings for lawyers' fees;

—Order the Italian Republic to pay the costs.

Pleas in law and main arguments

The capping of the fees that may be charged for the court-based and out-of-court services of lawyers constitutes a restriction on the freedom of establishment within the meaning of Article 43 EC, and also a restriction on the freedom to provide services within the meaning of Article 49 EC. Indeed, a compulsory scale of fee ceilings that must be applied, irrespective of the quality of the service provided, the work required and the costs incurred, may make the Italian market in legal services unattractive for foreign professionals. Lawyers established in other Member States are therefore discouraged from establishing themselves in Italy or providing their services there on a temporary basis.

First, having to adapt to a new (and very complex) fee regime entails additional costs that may make it more difficult to exercise the fundamental freedoms recognised by the Treaty.

Secondly, fee ceilings represent a further restriction on the free movement of legal services in the internal market, since they prevent the quality of the activities carried out by lawyers established in Member States other than Italy from being correctly remunerated; this means that some lawyers, who normally ask for higher fees than those established under the Italian legislation on the basis of the Italian market, are deterred from providing their services in Italy on a temporary basis or from establishing themselves in that State.

Lastly, the rigidity of the Italian fee regime prevents lawyers (including those established abroad) from making special offers in specific situations and/or to specific clients: for example, a package of given legal services for a fixed fee, or a number of legal services provided in several Member States at a common rate. The Italian legislation may therefore lead the situation of lawyers established abroad to be less competitive since it deprives them of an effective means of penetrating the Italian legal market.

In addition, the disputed measure appears neither suitable for attaining the general interest objectives referred to by the Italian authorities, nor the least restrictive means of achieving those objectives. In particular, the disputed measure does not appear to be a suitable means of ensuring that the less affluent have access to justice, or that the recipients of legal services are protected, or for ensuring the proper administration of justice. Nor does the measure appear proportionate, since there are other measures which appear to be appreciably less restrictive for lawyers established abroad, and equally (if not more) suitable for achieving the protection objectives relied on by the Italian authorities.

Lastly, the Italian authorities have not explained what, if any, alternative measures, less restrictive of lawyers established in other Member States, have been considered; nor have they set out the reasons why the general interests pursued are not already protected by the provisions in force in the other Member States of the Community for governing the legal profession.