1.

‘… the European Court of Justice is asked for a preliminary ruling on the interpretation of Article 101 of the Treaty (formerly Article 81) in relation to the statutory provisions and rules of conduct regulating the profession of geologist and the institutional responsibilities and rules of procedure of the National Council of Geologists, applicable to the case, as set out below, in order to establish whether they are compatible with and lawful in the light of European Union law (the abovementioned Article 101) concerning the rules on competition. Article 9, with particular reference to Article 9(g), of Law 112/1963, “the National Council of Geologists shall have the following responsibilities, in addition to those conferred on it by other provisions: (a) it shall ensure compliance with the law regulating the profession and all other provisions concerning the profession; (b) it shall ensure that the register and special list are maintained and be responsible for registering members and removing members from the register; (c) it shall ensure that the professional qualification is protected and take measures to prevent the unlawful exercise of the profession; (d) it shall adopt disciplinary measures; (e) it shall, if requested, determine fees; (f) it shall administer the material assets of the National Association and draw up annually the provisional budget and the final balance sheet; (g) it shall establish, within the limits strictly necessary to cover the operating costs of the National Association, by resolution to be approved by the Ministry of Justice, the amount of the annual contribution to be paid by those entered in the register or the special list, as well as the amount of the registration fee for entry in the register or list [and] the charge for issuing certificates and opinions on the determination of fees”. Article 14, first paragraph, of Law 616/1966, which provides that “[a] person entered in the register or special list who fails to act in a manner consistent with the integrity or dignity of the profession may be subject, depending on the seriousness of the offence, to one of the following disciplinary measures: (1) reprimand; (2) suspension from professional activity for a period of not more than one year; (3) removal from the register”. Article 17 of Law 616/1966, which provides that “[t]he scale of professional fees and emoluments and the criteria for the reimbursement of costs shall be established by decree of the Minister of Justice (‘Ministro per la Grazia e Giustizia’ [now the ‘Ministro della Giustizia’], after consultation of the Minister for Industry and Commerce [now the ‘Minister for the Production Sector’], acting on a proposal from the National Council of Geologists”. Article 6 of the New Code of Conduct of 19 December 2006 (Resolution No 143/2006), amended by Resolution No 65 of 24 March 2010 on “professional services”, according to which, “[t]he efficiency and effectiveness of the service shall, in essence, be determined by: the intrinsic technical difficulty; the extent of the responsibility undertaken; the novelty of the request; whether or not existing technical solutions may be applied to the case; the significance of the technical aspects to be assessed; the scale of the technical aspects requiring coordination; the originality of the solution; the amount of time and the level of commitment demanded; the capacity for interaction with the client and with other persons, including undertakings, involved in providing the service; the value of the work”. Article 7 of the New Code of Conduct of 19 December 2006 (Resolution No 143/2006), amended by Resolution No 65 of 24 March 2010 on “[p]rofessional conduct”, according to which “appropriate professional conduct consists, in essence, in the propriety and completeness of the professional service provided; in the capacity to take on responsibility; in having available effective technical and professional equipment; in the ready availability of up-to-date tools; in the organisation of an efficient office and professional team; in the care shown in executing tasks; in having available resources and structures for continuing education and training, including for staff and employees; in the ability to communicate promptly and effectively with the client, and with private and public institutions and bodies and the wider public”. Article 17 of the New Code of Conduct of 19 December 2006 (Resolution No 143/2006), amended by Resolution No 65 of 24 March 2010 on the “[c]riteria for charging”, according to which “[i]n determining professional remuneration, the geologist must comply with the provisions of Decree-law 223/2006 converted into Law 248/2006; the requirement that remuneration must be commensurate laid down in Article 2233, second paragraph, of the Civil Code and, in any event, all the provisions in force governing the subject-matter. The professional scale of fees approved by Ministerial Decree of 18 November 1971, as subsequently amended and supplemented, and the fees in respect of public works, approved by the Ministerial Decree of 4 April 2001 in so far as concerns geologists, constitute a legitimate and objective technical and professional reference criterion for the purpose of the consideration, determination and settlement of questions relating to fees as between the parties”. On that point, in particular, the Court of justice is requested to give a ruling on whether it is contrary to Article 101 of the Treaty to designate Decree-Law 223/2006, with the numerical-chronological system, being the only historically-based and lawful system, at both domestic and Community level, as the mandatory statutory provision in force in its entirety, which undoubtedly has no bearing on whether it is possible for those concerned to be aware of the rule of law or its mandatory effect. Article 18 of the New Code of Conduct of 19 December 2006 (Resolution No 143/2006), amended by resolution No 65 of 24 March 2010 on the “[c]ommensurate nature of the fee”, according to which, “[u]nder the legislation in force, in order to ensure the quality of the services provided, a geologist engaging in professional activity in its various forms — as an individual, as a member of a company or a partnership — must always ensure that the fee charged is commensurate with the scale and difficulty of the task, appropriate professional conduct, technical knowledge and the commitment required. Having regard to the principles of competitiveness, the National Association shall monitor compliance with these requirements”. Article 19 of the New Code of Conduct of 19 December 2006 (Resolution No 143/2006), amended by Resolution No 65 of 24 March 2010 on “[p]ublic tendering procedures”, according to which, “[i]n public tendering procedures, where the public authority legitimately refrains from applying the professional scale of fees as the criterion for remuneration, the geologist shall, in any event, ensure that his or her bid is commensurate with the scale and difficulty of the task, appropriate professional conduct and the technical knowledge and commitment required”. As regards: — Council Regulation (EEC) No 2137/85 (1) of 25 July 1985 on the “European Economic Interest Grouping (EEIG) [designed] to facilitate or develop the economic activities of its members”, states, in the sixth recital in the preamble, that the provisions [contained therein] — are not to prejudice the application at national level of legal rules and/or ethical codes concerning the conditions for the pursuit of business and professional activities; — Directive 2005/36/EC (2) of the [European] Parliament and of the Council on the “recognition of professional qualifications” states, in recital 43 that “[t]o the extent that they are regulated, this Directive includes also liberal professions, which are, according to this Directive, those practised on the basis of relevant professional qualifications in a personal, responsible and professionally independent capacity by those providing intellectual and conceptual services in the interest of the client and the public. The exercise of the profession might be subject in the Member States, in conformity with the Treaty, to specific legal constraints based on national legislation and on the statutory provisions laid down autonomously, within that framework, by the respective professional representative bodies, safeguarding and developing their professionalism and quality of service and the confidentiality of relations with the client”. — Directive 2006/123/EC (3) of the European Parliament and of the Council on “services in the internal market”, known as the “services directive”, provides, in recital 115 that “[c]odes of conduct at Community level are intended to set minimum standards of conduct and are complementary to Member States’ legal requirements. They do not preclude Member States, in accordance with Community law, from taking more stringent measures in law or national professional bodies from providing for greater protection in their national codes of conduct”. Finally, the Court of Justice is asked to rule on the compatibility with Article 101 of the Treaty of the distinction made, as a matter of law and in terms of the organisation of professional associations, between a professional undertaking and a commercial undertaking, as well as between professional competition and commercial competition’.