On 14th November 2014, the Italian Competition Authority (“ICA”) imposed a € 912,536.40 fine on the Italian National Bar Council (the “NBC”) (in the Italian language “Consiglio Nazionale Forense”) which represents and coordinates all Italian professional orders of lawyers for infringements of Article 101 TFUE, the prohibition against anti-competitive agreements.
The subject of the ICA’s investigation are two acts adopted by the NBC under the lawyers’ Code of Ethics which would have anti-competitive effects on the economic behaviour of the professionals: The circular No. 22-C/2006 (the “Circular”) and the subsequent opinion No. 48/2012 (the “Opinion”).
The Circular established that charging fees below the minimum level set forth by the professional tariffs, although no longer in force, would constitute a disciplinary offence as per the lawyers’ Code of Ethics, whilst the Opinion would introduce a restriction of competition among lawyers by impeding them to use certain digital platforms (i.e. the internet) to offer their legal services to the general public.
The ICA held that the two NBC’s acts have the restriction of competition among Italian lawyers as their object so that according to the Expedia case (C-226/11) and the new De Minimis Notice (2014), no further examination on the negative economic effects were needed.
The also ICA clarified that the NBC’s acts could be sanctioned for competition rules violation. In particular, the ICA found that according to established professionals (lawyers in the case at stake) can be considered as undertakings under competition law as they carry out an independent economic activity. Therefore, the NBC is an association of undertakings and the above mentioned acts are decisions made by an association of undertakings in infringement of Article 101 TFUE.
Finally, the ICA found that the two NBC acts may prejudice trade among Member states as they are applicable to all the Italian territory which is an important part of the European Union market.