Order — ECLI:EU:C:2005:96
Date: 2005-02-17
Language of the case: Italian
Court formation: Second Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices
Concepts: The various activities;Binding nature of the competition rules and measures taken by Member States, direct effect
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary of the Order Freedom of movement for persons – Freedom of establishment – Lawyers – Examination determining access to the profession – Composition of the examination committee – Participation of lawyers – Whether permissible – Breach of Articles 81 EC and 82 EC – None (Arts 43 EC, 81 EC and 82 EC) Articles 43 EC, 81 EC and 82 EC do not preclude a national law which provides that, in connection with the examination regulating access to the profession of advocate, the examination committee is to be composed of five members appointed by the Minister for Justice, namely two judges, a professor of law and two advocates, the latter being nominated by the National Bar Council on a joint proposal by the bar councils of the district concerned. As regards Article 43 EC, although an examination for access to the profession of advocate may indeed constitute an obstacle to the freedom of establishment, there is no evidence to suggest that, of itself, the rule relating to the composition of the examination committee constitutes a restriction on freedom of establishment, irrespective of the restriction which might result from the examination itself. In any event, even assuming that the participation of advocates in the State examination committee constitutes in itself a restriction on freedom of establishment, that participation may be justified by the public interest, namely the need to assess as well as possible the aptitude and ability of persons called to practise as advocates, and is suitable for securing the attainment of that objective. If, furthermore, Articles 81 EC and 82 EC are infringed where a Member State requires or encourages the adoption of agreements, decisions or concerted practices contrary to Article 81 EC or reinforces their effects, require or encourage abuses of a dominant position contrary to Article 82 EC or reinforce the effects of such abuses or, lastly, where it divests its own rules of the character of legislation by delegating to private economic operators responsibility for taking decisions affecting the economic sphere, that is not the case where the Member State concerned delegates to a committee which includes lawyers, responsibility for taking decisions concerning access to the profession of advocate, when it occupies a significant position on the examination committee itself by the presence of two judges, the Ministry of Justice has substantial powers enabling it to supervise each stage of the examination committee’s proceedings and even to intervene in those proceedings if necessary, and, finally, a negative decision by the examination committee may be subject to a legal remedy. (see paras 30-33, 35, 37, 42-45, 47, operative part)