Fair Compensation and P.A.: a debate still open?

The debate on the law on fair compensation (Law No. 49 of 21 April 2023), which immediately began from the moment of its application, has recently seen a surge of initiatives, sometimes conflicting, involving the National Anti-Corruption Authority (ANAC) on the one hand and, on the other, case law.

In a recent note dated 19 April, Anac has in fact decided to address a request to the legislator to find a solution to what, according to it, would be a regulatory antinomy between fair professional compensation, governed by Law No. 49 of 21 April 2023 and the new Public Contracts Code (Legislative Decree No. 36/2023), for the assignment of specific tasks conferred on professionals by the Public Administration.

Before getting to the heart of the current debate, it should be noted that the legislator, with the new rules laid down by Law No. 49/2023, defines fair compensation as "the payment of compensation proportionate to the quantity and quality of the work performed, the content and characteristics of the professional service (...)» and extends, with Article 2, paragraph 3, the scope of application of the rules to the services rendered by professionals in favor of the Public Administration. The ratio of the new regulation lies in the legislator's desire to increase the protections in the relationships established between the intellectual professional, considered in some cases a "weak contractor", and other subjects potentially envisaged as "strong contractors", including the P.A. By virtue of that objective, the legislature considers null and void, pursuant to Article 3 below, 'the clauses which do not provide for fair and proportionate remuneration for the work performed'.

With a first resolution of 2023, no. 343, Anac considered that this law entails the prohibition of awarding contracts with fees lower than those resulting from the ministerial tables, to be considered a "binding and mandatory parameter", with the consequent inapplicability of the award criteria of the lowest price or the most economically advantageous offer (the decision relates to design contracts but for its content it can be extended to all professionals targeted by the legislation).

With a second resolution, no. 101 of 28 February 2024, Anac returned to express its opinion on the principle in question but, in this case, in a different way from the first decision. The case in point, on a pre-litigation opinion, concerned a tender procedure, again aimed at entrusting engineering and architecture services, in which the competitors had proposed a tender below the minimum rates with the consequent reduction of the professional fee. The Anti-Corruption Authority, highlighting the absence of a consolidated jurisprudential orientation regarding the relationship between the legislation on fair compensation provided for by Law 49/2023 and the tender procedures for the award of engineering and architectural services, ruled out the possibility of proceeding with the heterointegration mechanism of the call for tenders (in this case, the notice provided that the participants indicated a percentage discount on the auction basis,  consisting of fees and overheads, without distinction), thus excluding competitors who had submitted a bid with a discount such as to reduce the portion of the professional fee.

Less than a month after the opinion, the Veneto Regional Administrative Court of Law, in a very similar case, took a radically opposite position. With judgment no. 632/2024, published on 3 April 2024, the Veneto judges affirmed that they did not find any conflict between the law on fair compensation and the procurement code, (whose Article 8 of Legislative Decree 36/2023, establishes that public administrations "must guarantee" the application of the principle of fair compensation), nor conflicts with EU regulations. And since the professional's fee is one of the various items that make up the auction base, the discounts will be limited to the component that does not constitute compensation (i.e. overheads).

Subsequently, the Regional Administrative Court of Lazio, with a ruling of 16 April 2024 (no. 8580) confirmed the orientation expressed by the Veneto Regional Administrative Court, but with another contemporary decision, the Council of State (III^, 19 April 2024 no. 3176) reaffirmed the previous jurisprudence according to which public administrations, although required to apply the law, are not required "always and in any case" to pay the professional a remuneration not lower than the minimum as the cardinal principle of relations with professionals is free negotiating, leaving to the code of ethics, and therefore to the professional associations, the assessment of any conduct detrimental to the dignity and decorum of the profession as well as loyalty to colleagues and institutions.

In reality, it is well known how difficult it is to talk about the freedom of the professional in the face of tenders that provide for discounts, considering that according to the Council of State, there is room for negotiation when the notice "contains a discipline that regulates a contractual relationship, including remuneration" (which, however, constitutes most of the price element).

In recent days it has been reported that the Consiglio Nazionale Forense (in the Official Gazette no. 102 of 3.5.2024) has announced that from 2 July 2024 the new Article 25 bis of the Code of Ethics for Lawyers, entitled "Violations of the provisions on fair compensation", will come into full force in concrete implementation of Art. 5, paragraph 5, of Law no. 49/2023 according to which the lawyer may not agree or estimate a fee that, pursuant to and for the purposes of the provisions on fair compensation, is not fair, equitable and proportionate to the professional service required, and is not determined in application of the forensic parameters in force.

The new deontological rule also provides for a specific obligation on the part of the lawyer who must warn the client, in writing, that the fee for professional services must in any event comply with the criteria laid down in the relevant provisions, under penalty of nullity of the agreement.

So, pay attention to the formulation of estimates!

A good step forward, hopefully effective, for the protection of professionals.

Avv. Cristina Bassani

Dott.ssa Federica Lo Presti

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