Luxembourg, 02/04/2002 (Agence Europe) - Non-Italian Community lawyers may henceforth have an office in Italy from which they may provide defence or counselling services. This will therefore make it far easier for non-Italian lawyers to practise in Italy. The Court of Justice recently found Italy guilty of considerably restricting, by its legislation in force, the freedom of movement of non-Italian European lawyers or their establishment on Italian territory.
"The general prohibition whereby lawyers established in other Member States and practising in Italy in the exercise of their freedom to provide services cannot have in that State the infrastructure needed to provide their services" is contrary to the Treaty, stated the fifth Chamber of the Court presided by Swedish Judge Stig von Bahr.
On the other hand, the Italian government maintained that Article 2 of the Law 31/82 - which imposed this ban - was necessary in order to prevent foreign lawyers from circumventing the law and establishing their practices in Italy after having created a foothold in Italy which, at the outset, had only been for short stays in that country.
After having condemned Italy for restricting the provision of lawyers' services, the Court also finds Italy guilty of having hampered the establishment of lawyers wishing to open an office in Italy. Such lawyers would have to give up their residency, for example in France or Germany, in order to be able to register in the district of the Italian court under which they would come for their professional activities in Italy.
The fifth Chamber also recalls that the Court has already judged (Ed.: in 1984 in a Klopp case) that the right of establishment of lawyers "entails the right to set up and maintain, subject to observance of the rules of professional practice, more than one place of work within the Community".
Finally, the Court condemns Italy which, because it had failed to fully transpose the 1989 directive on the recognition of diplomas, settles the cases of lawyers wishing to set up practice in Italy on a case by case basis. "It is common ground that Legislative Decree No 115/92 does not determine the subjects regarded as indispensable for practising as a lawyer in Italy or the rules regulating the conduct of the aptitude test, thus creating a situation of fluidity, if not of legal uncertainty. That legislative decree cannot therefore be regarded as fully transposing Directive 89/48", states the fifth Chamber.
Directive 89/48 establishes a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three year's duration. It provides for an aptitude test in order to test the professional knowledge of the applicant.