Accordi sul compenso del professionista legale tra autonomia delle parti e regole di concorrenza - Vereinbarung der Anwaltsvergütung zwischen Autonomie und Wettbewerb -

Italian law provides for special legal provisions with regard to the determination of legal fees in contracts concluded with a lawyer, due to the peculiar nature of the contract. Since 2006, the Italian system of fees owed to lawyers has been object of several amendments, which have completely modified the discipline. The Italian Competition Law (Law Decree 223/2006 – known as “Decreto Bersani”) abolished minimum statutory fixed fares, and, later, the Law Decree 1/2012 (known as “Decreto Cresci Italia” or “D. L. Liberalizzazioni”) abolished regulated rates. Legal services are now ruled by Law 247/2012; in particular, its Article 13 provides for the criteria for the determination of attorney fares. Said article has a paramount importance, considering that, in accordance with Article 2233 of the Civil Code, it recognizes the negotiating autonomy of the Parties in the fee agreement. In case no fee agreement is reached between client and attorney, a subsidiary judicial computing system applies (Ministerial Decree 55/2014). One of the basic principles underlying the reform is that the only way to protect free competitions is to reduce regulation. In fact, one of the most relevant restrictions to free competition has been identified in the regulated fare system. To the contrary German regulation on attorney fares shows that the sole provision of a regulated rate system does not involve a violation of the European principles of free competition. Under such perspective, the imposition of a regulated rate system is fully justified by the fundamental rights underlying lawyers’ practice (e.g. rights of defense, interest in the proper administration of justice) and should be admitted to the extent that it is moderated by appropriate remedial actions. Under German law, there is an effective balance between negotiating autonomy of the Parties and application of regulated tariffs, which could be derogated by an agreement on certain grounds. In this way competition in legal services is ensured, without prejudice to those functions assigned to lawyers within the contest of the administration of justice.