Consiglio nazionale dei geologi v Autorità garante della concorrenza e del mercato and Autorità garante della concorrenza e del mercato v Consiglio nazionale dei geologi.
Date: 2013-07-18
25. It should be pointed out, first, that in so far as no appeal lies against the decisions of a national court, such a court is, in principle, obliged to make a reference to the Court of Justice under the third paragraph of Article 267 TFEU where a question relating to the interpretation of the TFEU is raised before it (Case C‑337/95 Parfums Christian Dior  [1997] ECR I‑6013, paragraph 26).
26. It follows from the relationship between the second and third paragraphs of Article 267 TFEU that the courts or tribunals referred to in the third paragraph have the same discretion as any other national court or tribunal to ascertain whether a decision on a question of European Union law is necessary to enable them to give judgment. Accordingly, those courts or tribunals are not obliged to refer to the Court of justice a question concerning the interpretation of European Union law raised before them if that question is not relevant, that is to say, if the answer to that question, regardless of what it may be, can in no way affect the outcome of the case (Case 283/81 Cilfit and Others  [1982] ECR 3415, paragraph 10).
27. On the other hand, if those courts or tribunals consider that recourse to European Union law is necessary to enable them to decide a case, Article 267 TFEU imposes, in principle, an obligation on them to refer to the Court of Justice any question of interpretation which may arise (see Cilfit and Others , paragraphs 11 to 20).
28. The Court has already held that the system established by Article 267 TFEU with a view to ensuring that European Union law is interpreted uniformly throughout the Member States institutes direct cooperation between the Court of Justice and the national courts by means of a procedure which is completely independent of any initiative by the parties (Case C‑210/06 Cartesio  [2008] ECR I‑9641, paragraph 90, and Case C‑104/10 Kelly  [2011] ECR I‑6813, paragraph 62).
29. The determination and formulation of the questions to be put to the Court devolves upon the national court alone and the parties to the main proceedings may not change their tenor (Joined Cases  C‑42/10, C‑45/10 and C‑57/10 Vlaamse Dierenartsenvereniging and Janssens  [2011] ECR I‑2975, paragraph 43, and Case C‑316/10 Danske Svineproducenter  [2011] ECR I-0000, paragraph 32).
30. Although that court is at liberty to request the parties to the dispute before it to suggest wording suitable for the question to be referred, the fact remains that it is for it alone ultimately to decide both its form and content ( Kelly , paragraph 65).
31. It follows from the foregoing that it is for the referring court alone to determine and formulate the questions to be referred for a preliminary ruling concerning the interpretation of European Union law which are necessary in order to resolve the dispute in the main proceedings.
32. As regards the national rules of procedure to which the referring court alluded without, however, clarifying their exact scope, it suffices, in any event, to note that such rules cannot affect the powers and obligations conferred on a national court such as the referring court under Article 267 TFEU (see, to that effect, Cartesio , paragraphs 93, 94 and 98).
33. In addition, it is appropriate to point out that a national court which is called upon, within the exercise of its jurisdiction, to apply provisions of European Union law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, including procedural provisions, and it is not necessary for the court to await the prior setting aside of that national provision by legislative or other constitutional means (see, to that effect, Case C‑173/09 Elchinov [2010] ECR I-8889, paragraph 31).
42. In that examination, it is necessary to verify whether, when it adopts rules such as those at issue in the main proceedings, a professional association is to be treated as an association of undertakings or, on the other hand, as a public authority, on the ground that its activity is connected with the exercise of the powers of a public authority (Case C‑309/99 Wouters and Others  [2002] ECR I‑1577, paragraph 57 and case-law cited).
44. It should be noted that, when it adopts a measure such as the Code of Conduct, a professional organisation such as the National Association of Geologists is neither fulfilling a social function based on the principle of solidarity, nor exercising powers which are typically those of a public authority. It acts as the regulatory body of a profession, the practice of which constitutes an economic activity (see, to that effect, Wouters and Others , paragraph 58).
46. As regards the question whether the rules of professional conduct at issue in the main proceedings constitute a decision under Article 101 TFEU, it should be recalled that even a price recommendation, whatever its exact legal status, may be regarded as constituting such a decision (Case 45/85 Verband der Sachversicherer  v Commission [1987] ECR 405, paragraph 32).
48. In order for European Union competition rules to apply to an arrangement or abusive practice it is necessary for it to be capable of affecting trade between Member States (Joined Cases C‑295/04 to C‑298/04 Manfredi and Others [2006] ECR I‑6619, paragraph 40).
49. For that purpose, an agreement, decision or practice must make it possible to foresee with a sufficient degree of probability, on the basis of a set of objective factors of law or of fact, that it may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States in such a way as to cause concern that it might hinder the attainment of a single market between Member States ( Manfredi and Others , paragraph 42).
50. An agreement, decision or concerted practice extending over the whole of the territory of a Member State has, by its very nature, the effect of reinforcing the partitioning of markets on a national basis, thereby holding up the economic interpenetration which the Treaty is designed to bring about (Case C‑35/96 Commission  v Italy  [1998] ECR I‑3851, paragraph 48, and Manfredi and Others , paragraph 45).
53. However, not every decision of an association of undertakings which restricts the freedom of action of the parties or of one of them necessarily falls within the prohibition laid down in Article 101(1) TFEU. For the purposes of application of that provision to a particular case, account must first of all be taken of the overall context in which a decision of the association of undertakings was taken or produces its effects. More particularly, account must be taken of its objectives, which in the present case consist in ensuring that the ultimate consumers of the services in question are provided with the necessary guarantees. It has then to be considered whether the consequential effects restrictive of competition are inherent in the pursuit of those objectives ( Wouters and Others , paragraph 97).
54. In that context, it is important to verify whether the restrictions thus imposed by the rules at issue in the main proceedings are limited to what is necessary to ensure the implementation of legitimate objectives (see, to that effect, Case C‑519/04 P Meca-Medina and Majcen  v Commission  [2006] ECR I‑6991, paragraph 47).