On 17th October 2013, the Italian Competition Authority (“ICA”) found that the activities of the Brescia Bar Association (“BBA”) did not fall foul of Article 101 TFEU for sanctioning the business conduct of two lawyers.
The decision stemmed from the complaint filed by two Italian lawyers who had been sanctioned by the BBA for violating the professional Code of Conduct. In particular, the BBA prohibited the two Italian lawyers from using advertisements such as “Legal Aid for All” and “First Legal Consultancy is Free” in the windows of their law firms. These actions were held under Section 19 of the Code of Conduct for bringing the legal profession into disrepute.
The sanctioned lawyers challenged this decision before the ICA alleging that the decision of the BBA should be considered an anti-competitive agreement by an association of undertakings since it was only aimed at impeding free competition on the market of legal services.
The ICA denied the anticompetitive nature of the sanctions imposed by the BBA as the latter did not limit either the possibility of the lawyers setting the level of their fees for their legal services or the restricting their ability to advertise their own business.
The ICA pointed out that the BBA sanctioned only some related aspects of the way in which the two lawyers had advertised their business and that such aspects were not able to cause a decisive influence on the independent economic behavior of the two lawyers concerned and, in general, of any lawyers since it only related to sanctions under the BBA Code of Conduct.
This is a strange and unduly narrow decision which appears to be out of step with the reality of a highly competitive market for legal services and the fact that lawyers need to advertise effectively with messages to attract consumers and bring in business. The sanctions imposed by the Italian Bar Associations of Brescia are surprising. They are all the more surprising at a time when the Italian legal profession should be modernising. What is also novel in this case is that the lawyers in question have resorted to a competition defence to attack the sanctions imposed against them under a code of conduct.