By means of measure no. 25487, published in Bulletin no. 21 of 15 June 2015, the Italian Antitrust Authority, charged the CNF (the Italian National Bar Council) with the violation of art. 15 paragraph 2 of Law 287/90 for failure to comply with a previous decision of the same authority, no. 25154 October 2014.
Through this last measure the Antitrust Authority had ascertained an infringement committed by the Bar Council, in breach of Article 101 TFEU, for having brought about an agreement restricting competition, consisting of the adoption of a decision intended to limit the autonomy of professionals, censoring as a disciplinary offense the use of a promotional and informative channel conveying also the economic convenience of the professional service.
In fact, opinion No. 28 of 2012 of the CNF had considered the use by a lawyer of a web site other that his own for advertising purposes as a “debasement of the professional activity based on intellectual work” and, therefore, considered those sites as a prohibited tool.
The Antitrust’s October 2014 measure criticized the stance of the CNF as an unlawful restriction of competition among professionals, to the extent that it prevents them from “using certain digital platforms to advertise their professional services, also with regard to their economic component and therefore limits the lawyers’ use of an important channel made available by new technologies for the dissemination of information about the nature and convenience of the professional services offered.”
According to the Antitrust Authority, these platforms offer the lawyers new professional opportunities and a greater ability to attract clients compared to traditional forms of advertising, allowing them to establish themselves even in geographically distant new markets.
Given the above, by means of the 2014 decision, the Antitrust Authority warned the CNF to take all necessary measures to remove the infringement committed through opinion No. 48 and to refrain from committing new infringements like the ascertained one.
By means of the very recent measure no. 25487/2015, the Antitrust Authority has once again intervened on art. 35 of the new Code of Conduct, which came into force on 15 December 2014, under which “lawyers may use, for information purposes, only Web sites with their own domain without redirection, which are directly traceable to them, to the Associated Law Firm or to the lawyers’ company in which they participate, after first informing the Bar Council about the form and content of the site itself.” The violation of that provision is subject to the disciplinary measure of censorship.
The Antitrust Authority has first of all noted that according to constant Community and National case law, professionals are considered undertakings for the purposes of applying the rules on competition and for the same purposes professional bodies constitute associations of undertakings, falling as such within the material scope of Article 101 TFEU.
Therefore, according to the Antitrust Authority, Article 35 of the current Lawyers’ Code of Conduct reiterates the already ascertained infringement perpetrated through opinion no. 48 of 2012, placing itself in conflict not only with Community law, but also with the previous measure no. 25154 of 22 October 2014 of the Antitrust Authority.
In light of the above, the Antitrust Authority has charged the CNF with the violation of art. 15 paragraph 2 of Law 287/90 for non-compliance with the aforementioned decision of the Authority.
(Bologna Office – Rosachiara Martiriggiano – 0039 (0)51 2750020)
