Brussels, 06/12/2010 (Agence Europe) - European law does not preclude national rules which prevent part-time public officials from practising the profession of lawyer, despite their being qualified to do so, by laying down that they are to be removed from the register of the competent Bar Council - unless the person in question decides to renounce his public function.
Furthermore, the same member state may impose on lawyers registered with a Bar in that member state who are also, whether full or part-time, in the employ of another lawyer, an association or firm of lawyers, or a public or private enterprise, “restrictions on the exercise of the profession of lawyer concurrent with that employment, provided that those restrictions do not go beyond what is necessary in order to attain the objective of preventing conflicts of interest and apply to all the lawyers registered in that member state”.
It was in this way that the Court replied to four preliminary questions put forward by the Cortona (Italy) justice of peace, who raised the question of the 2003 Italian law's compatibility with EU law. The Italian law reintroduced the incompatibility of the lawyer's profession by public officials.
This case is interesting in that the Italian law is examined in terms of the provisions of the treaty on free and non-distorted competition, on the ban on insider agreements and directives relating to the effective exercise by lawyers of freedom to provide services and the exercise of this profession in member states other than those where the qualification has been received.
Thus, according to the Court, the fact that a member state orders professional associations such as the various Bar Councils to remove from the register members of that profession who are also part-time public officials “does not establish that the member state has divested its own rules of the character of legislation by the state. The Bar Councils have no influence over the automatic adoption, prescribed by the law, of the decisions to remove from the register”. Also, concerning the possible discrimination of Italian lawyers compared to those of other countries qualified to exercise in Italy, “it does not appear that Law No 339/2003 applies exclusively to lawyers of Italian origin thereby giving rise to reverse discrimination”. It is true that the lawyers concerned by that law are those interested in working for bodies subject to the supervision or control of the Italian Republic or its regional authorities but “at least as far as posts in public enterprises are concerned, lawyers registered with one of the Bars of the Italian Republic and therefore affected by the prohibition on practising law and working for such bodies may not only be Italian nationals, but nationals from other member states”. (F.G./transl.jl)