Opinion of the Advocate-General
1. In this sequel to Bellone v Yokohama the Pretore di Brescia (Italy) asks questions about the interpretation and effect, in the context of an agency contract, of the Treaty provisions on freedom of establishment and freedom to provide services. For the reasons given below, however, I consider that the dispute before the Pretore can be resolved on the basis of Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents.
The background
2. Bellone concerned the compatibility with that directive of Italian Law No 204 of 3 May 1985 and Article 1418 of the Italian Civil Code as those provisions were interpreted by the Italian courts at the relevant time.
3. Article 2 of Law No 204 provides that in each Italian Chamber of Commerce a register of commercial agents and representatives is to be established in which all persons pursuing or intending to pursue the activity of commercial agent or representative are to be registered. Article 9 of Law No 204 prohibits any person not so registered from pursuing the activity of commercial agent or representative. Article 1418 of the Italian Civil Code stipulates that a contract is null and void if contrary to mandatory provisions. The Italian Corte di Cassazione ruled in 1989 that Article 9 of Law No 204 is a mandatory provision. Consequently, an agency contract entered into by a person who is not registered is void and such a person cannot bring proceedings for the recovery of commission in respect of the activities carried out by him.
4. Directive 86/653 is intended to coordinate the laws of the Member States as regards the legal relationship between the parties to a commercial agency contract and to protect the interests of commercial agents. To that end, the Directive provides rules concerning the rights and obligations of commercial agents and principals (Articles 3 to 5), remuneration of commercial agents (Articles 6 to 12), and conclusion and termination of agency contracts (Articles 13 to 20). The Directive does not deal with the question of registration of commercial agents, and a number of Member States require commercial agents to be registered. On that basis, the Court ruled in Bellone that the Directive does not preclude a Member State from maintaining a register of commercial agents. However, the Court held that the Directive deals exhaustively with the conditions of validity of an agency contract. Accordingly, the Court ruled that the Directive precludes a national rule which makes the validity of an agency contract conditional upon the commercial agent being entered in the appropriate register. Given the factual context of Bellone, that statement must be taken to mean that the Italian courts' interpretation of Article 9 of Law No 204 as a mandatory provision for the purpose of Article 1418 of the Civil Code was contrary to Directive 86/653.
5. In the light of the Court's judgment in Bellone, the Italian Corte di Cassazione has recently changed its view of the effect of Article 9 of Law No 204 and Article 1418 of the Civil Code. In its judgment No 4817 of 18 May 1999 that court ruled that a failure to register in accordance with Law No 204 does not entail the nullity of agency contracts. That judgment, however, was given after the order for reference in the present case was made, and was not invoked in the observations presented to the Court of Justice in the present case.
The facts and arguments
6. The facts, as set out in the order for reference, are as follows. The claimant, Centrosteel Srl, is an Italian company with headquarters in Brescia. It is not registered as a commercial agent under the provisions of Law No 204. The defendant, Adipol GmbH, is an Austrian company with headquarters in Vienna. Centrosteel made an oral agreement, in late 1989 or early in 1990, with Adipol to find, both in Italy and abroad, buyers and sellers of metal products and metal scrap. That agreement was terminated by Adipol in 1991. Centrosteel claims to have acted as the agent of Adipol in the intervening period and to be entitled to a commission of ATS 170 600 for its services. In the main proceedings, it seeks an order against Adipol for the payment of this sum.
7. Adipol contends that the order for payment cannot be made. As Centrosteel was not registered in accordance with Law No 204, the agency contract is, according to the Italian case-law dating from 1989, void and unenforceable. Centrosteel replies that Law No 204 is incompatible with Directive 86/653, and that the agency contract should therefore be enforced. Adipol retorts that Centrosteel cannot rely on the Directive as directives cannot, according to the settled case-law of the Court of Justice, have direct effect in proceedings between individuals.
The questions
8. Presented with those arguments by the parties, the Pretore di Brescia takes the view that the Court's ruling in Bellone does not furnish him with a solution to the dispute in the main proceedings. Since Directive 86/653 does not have direct effect in proceedings between individuals, it is necessary to have recourse to provisions of the Treaty. The Pretore has, therefore, stayed the main proceedings and asked the Court the following questions:
What is the interpretation of Articles 52, 53, 54, 55, 56, 57 and 58 of the EC Treaty [now Articles 43 to 48 EC]; in particular, do Articles 2 and 9 of Italian Law No 204 of 1985, under which entry in a register is compulsory for any person acting as an agent and an agency contract concluded by a person not entered on that register is void, constitute a restriction on the freedom of establishment?
Do the provisions of the Treaty on freedom of establishment contained in Articles 52 to 58 [now Articles 43 to 48 EC] preclude national legislation which makes the validity of an agency contract subject to entry of the commercial agent in an appropriate register?
Do the provisions on freedom to provide services contained in Articles 59 to 66 [now Articles 49 to 55 EC] preclude national legislation which makes the validity of an agency contract subject to the requirement of entry of the commercial agent in an appropriate register?
Admissibility
9. All of those submitting observations to the Court - Adipol, the Italian Government and the Commission - have raised objections to the admissibility of the reference. Those objections fall into two categories. First, it is argued that the order for reference is vitiated by factual and legal errors. Secondly, it is argued that a decision by the Court of Justice on the questions referred is not necessary to enable the Pretore di Brescia to give judgment in the main proceedings.
Factual and legal errors in the order for reference
10. Adipol advances two arguments related to the factual and legal characteristics of the order for reference. First, it claims, contrary to what the Pretore di Brescia states in the order for reference, that Centrosteel did not act as its agent. Centrosteel simply secured certain payments from Adipol through a dubious arrangement between an employee of Adipol and the managing director of Centrosteel who is the spouse of that employee. The reference is, therefore, inadmissible as it is based on incorrect facts or an incorrect legal qualification of the facts.
11. That argument is unfounded. It is well established that, within the procedure provided for in Article 177 of the EC Treaty (now Article 234 EC), it is for the national courts to establish the facts and to determine, in the light of those facts, the need for a preliminary ruling and the relevance of the questions which they submit to the Court of Justice. The Court of Justice gives its ruling without, in principle, having to look into the circumstances in which the national courts were prompted to submit the questions. Thus, it cannot affect the admissibility of this reference whether or not the Pretore di Brescia's assumption that Centrosteel acted as the agent of Adipol was correct.
12. Secondly, Adipol submits that the reference is inadmissible because the relevance of the free movement provisions of the Treaty was not raised by the parties in the main proceedings. The Pretore di Brescia included those provisions in the questions referred to the Court without giving the parties the opportunity to comment on their relevance.
13. That objection is also unfounded. The Court's jurisdiction to act under Article 177 is, according to settled case-law, independent of the reference's compliance with procedural rules of national law. If, as Adipol asserts, the Pretore's reference violated the parties' procedural rights under Italian law, that is a matter to be pursued in the Italian courts.
14. The Commission maintains that the reference is inadmissible because the Italian courts are not, as a matter of private international law, competent to deal with the dispute between Adipol and Centrosteel. The agreement between Adipol and Centrosteel has, the Commission claims, a closer link with Austria than with Italy because it was made in Austria and executed for the most part in Poland. Austria is therefore the correct forum for the dispute in the main proceedings.
15. That argument should not be upheld either. The alleged incompetence of the Pretore di Brescia to decide in the main proceedings cannot affect the admissibility of this reference. In the same way as the Court's jurisdiction to answer questions under Article 177 does not depend on compliance with national procedural rules, its jurisdiction cannot depend upon compliance with the forum rules of private international law. Compliance with those rules is a matter solely for the Italian courts which ultimately bear the responsibility for deciding in the main proceedings.
The necessity, for the resolution of the dispute in the main proceedings, of decisions on the questions referred to the Court
16. Adipol, the Italian Government and the Commission all contend that the questions asked by the Pretore di Brescia are unnecessary for the resolution of the dispute in the main proceedings. Their arguments in support of that contention are as follows.
17. The Commission contends that the main proceedings should have been decided according to Austrian rather than Italian law. Austrian law does not contain a requirement of registration of commercial agents. It is, therefore, not necessary or relevant for the resolution of the dispute for the Court to decide whether such a requirement is compatible with the Treaty.
18. That contention is, in my view, unconvincing. It is, as explained above, not for the Court of Justice to investigate the facts or to question which law should be applied in the main proceedings as a matter of private international law.
19. The Commission also argues, with the support of the Italian Government, that an answer to the questions asked by the Pretore is unnecessary for the resolution of the dispute, because national courts are under an obligation to interpret national law in the light of Community directives. The Pretore must, therefore, interpret Italian law in such a way that a failure to register in accordance with Law No 204 does not entail the nullity of an agency contract. The Italian Government emphasises that the Pretore is in a position to do so because there are no legislative provisions in Italian law which explicitly attach the effect of nullity to a lack of registration. It follows that the dispute in the main proceedings can be resolved without recourse to the Treaty provisions on free movement, and that there is no need to reconsider the Court's ruling in Bellone on the basis of those provisions.
20. The fact that the case might be resolved by interpreting national law in the light of the Directive is, in my opinion, not a sufficient ground for dismissing as irrelevant the questions referred by the national court. Indeed, it may provide a basis for answering those questions. Where the Court can assist the national court, it does not confine itself to the specific provisions invoked in the order for reference.
21. The Commission and Adipol contend, finally, that the reference is inadmissible because the main proceedings concern an agreement between an Italian company, managed by a person of Italian nationality, and an Austrian company which was made, executed and terminated in the period between 1989 and 1991. At that time Austria was not a member of the EU or the EEA. It follows that Centrosteel is in what Community lawyers often describe as an internal situation and that it cannot invoke the Treaty provisions referred to in the order for reference. The interpretation of those provisions can therefore in no way be necessary or relevant for the resolution of the case in the main proceedings.
22. I find that objection unconvincing.
23. First, while the Court of Justice has ruled that it will not answer questions which are general or hypothetical, or questions concerning provisions of Community law which are manifestly incapable of applying in, or obviously have no bearing on, the dispute in the main proceedings, the Court has so far used its power to dismiss references on grounds of irrelevance very sparingly. It is illustrative of the Court's approach that in Bertini it replied to a reference although it noted that in this case, it is difficult to see how the answers which the Court is asked to give can influence the decision in the main proceedings. In the more recent cases of Tombesi and Others the Court was asked questions about the interpretation of Directives 91/156/EEC and 91/689/EEC. It held, on the admissibility of those questions, that whilst it seems that some of the events in the main proceedings pre-date the entry into force of Directives 91/156 and 91/689, the orders for reference contain an explanation of those events and the national courts have expressly referred in their questions to those Community measures. It is therefore appropriate to consider all the questions referred to the Court.
24. That generous attitude towards prima facie irrelevant questions is, in my view, entirely appropriate given the purpose and fundamental importance of the procedure laid down in Article 177 of the Treaty. References should be dismissed only if it is obvious that they are entirely unconnected with the substance of the main proceedings. That is likely to be a rare occurrence, and there is only one example in the Court's recent case-law. In Falciola the Regional Administrative Court for Lombardy asked the Court of Justice, essentially, whether an Italian law, which had limited the Italian judiciary's immunity from damages liability, prevented the judiciary from functioning in an impartial and satisfactory manner. Those questions were asked in the course of proceedings concerning the award of a public works contract by the Municipal Council of Pavia to a competitor of the construction company Impresa Falciola Angelo. The Court of Justice found, in these circumstances, that the questions referred bore no relation to the subject-matter of the case, as they did not in any way concern the Community rules on public procurement.
25. It is readily apparent that the circumstances in this case differ from those before the Court in Falciola. The questions referred in this case are not entirely unconnected with the substance of the dispute, the judge has referred explicitly to provisions of Community law in his questions and, as the Court acknowledged in Tombesi, it may be appropriate to answer questions concerning events which pre-date the entry into force of the Community rules referred for interpretation.
26. In any event, the concerns underlying the national court's questions can, as the Commission itself points out, be met by explaining the effect of Directive 86/653. The application of that directive is not subject to a requirement of a cross-border element. The Commission's and Adipol's objection therefore does not apply if the Court replies to the Pretore's questions on the basis of the Directive rather than on the basis of the Treaty provisions on free movement.
27. It seems, therefore, appropriate to consider the substance of the reference.
Substance
28. The questions referred by the Pretore di Brescia concern the compatibility of national rules, which make entry in a register compulsory for all commercial agents and which provide that an agency contract concluded by a person not entered on that register is void, with the Treaty provisions on free movement.
29. Before any attempt is made to answer those broad questions, it is necessary to recall the context in which they have arisen. The Court of Justice held in Bellone that a national rule which makes the validity of an agency contract conditional upon the commercial agent being entered in a register is contrary to Directive 86/653. In the present case, Centrosteel invokes that ruling in support of its claim that Adipol must be ordered to pay commission which is allegedly due under an agreement between the two parties. However, the Pretore di Brescia takes the view that Centrosteel cannot rely on Directive 86/653, since directives do not have direct effect in proceedings between individuals. Hence the reference to provisions of the Treaty.
30. However, as the Commission and the Italian Government have pointed out, it is not necessary to have recourse to the Treaty provisions in this case since the dispute in the main proceedings can be resolved on the basis of Directive 86/653 and the Court's case-law on the legal effects of directives.
31. It is settled case-law that a directive cannot of itself impose obligations on individuals. It is, however, also settled case-law that the courts in the Member States are under an obligation to interpret their national laws as far as possible in such a way as to achieve the result pursued by directives. The obligation to interpret national law in conformity with directives applies both in proceedings between individuals and public authorities and in proceedings between individuals. Thus, in Marleasing the Court of Justice ruled that the Spanish courts were under an obligation to interpret Spanish law in the light of Directive 68/151/EEC. Since that directive listed exhaustively the grounds on which the nullity of a company could be ordered, and since those grounds did not include unlawfulness of the activity actually carried out by the company (as opposed to its object as stated in its constitutional document), the national court could not as a matter of Community law order the nullity of the defendant company, La Comercial, for lack of lawful purpose even if, as alleged by Marleasing, it had been created solely to defraud creditors.
32. General principles of law recognised by the Court do, however, impose certain limitations on the obligation to interpret national law in the light of directives. On the one hand, as the Court ruled in Pretore di Salò, the interpretation of national law must not create a new, or aggravate an existing, criminal liability which would not have existed but for the Directive. On the other hand, the national court is not required to interpret national law in a way which is contrary to the express terms of the relevant legislation.
33. Those well established principles concerning the interpretation of national law are not affected by the Court's ruling in Arcaro. The defendant in that case faced criminal prosecution in an Italian court for having discharged dangerous substances into the environment without being in possession of a licence. The Italian court had doubts about the conformity of the Italian law, under which he was charged, with two directives which it was designed to implement. Consequently, it asked the Court of Justice whether a procedure could be adopted to achieve the elimination from national legislation of provisions which are incompatible with Community law. The Court of Justice replied that national courts must indeed interpret national law in the light of Community directives, but it continued as follows:
... that obligation of the national court to refer to the content of the directive when interpreting the relevant rules of its own national law reaches a limit where such an interpretation leads to the imposition on an individual of an obligation laid down by a directive which has not been transposed or, more especially, where it has the effect of determining or aggravating, on the basis of the directive and in the absence of a law enacted for its implementation, the liability in criminal law of persons who act in contravention of that directive's provisions (see the judgment in Kolpinghuis Nijmegen, cited above, paragraphs 13 and 14).
34. That statement might appear to impose drastic limitations on the principle of interpretation of national law in accordance with Community directives. I do not consider, however, that the statement should be read in that way. It was made in the context of criminal proceedings, and the Kolpinghuis case cited by the Court also concerned criminal liability. In so far as the wording might appear to apply outside the criminal context, it is difficult to reconcile both with the Court's prior and subsequent case-law.
35. In summary, I am of the opinion that the Court's case-law establishes two rules: (1) a directive cannot of itself impose obligations on individuals in the absence of proper implementation in national law; (2) the national courts must nevertheless interpret national law, as far as possible, in the light of the wording and purpose of relevant directives. While that process of interpretation cannot, of itself and independently of a national law implementing the directive, have the effect of determining or aggravating criminal liability, it may well lead to the imposition upon an individual of civil liability or a civil obligation which would not otherwise have existed.
36. Those two rules have implications for the case now before the Court. The Pretore di Brescia is under an obligation, when interpreting the provisions of Article 9 of Law No 204 and Article 1418 of the Italian Civil Code, to have regard to Directive 86/653. He is not required to reach a result which is contrary to express provisions of Italian law, but that does not appear to be the case here. According to the Italian Government, there are no legislative rules in Italian law which explicitly provide that contracts concluded by agents who are not registered in accordance with Law No 204 are void. That effect results rather from case-law of the Italian Corte di Cassazione dating from 1989. That case-law is, following the Court's ruling in Bellone, contrary to Community law. It appears, therefore, that the Pretore di Brescia is obliged to resolve the dispute in the main proceedings on the basis of a different interpretation of Italian law which is in conformity with Directive 86/653. That conclusion is supported by the fact that, as already mentioned, the Corte di Cassazione has, after this reference was submitted to the Court, changed its case-law so that a failure to register in accordance with Law No 204 no longer entails as a matter of Italian law the nullity of agency contracts.
37. In the light of that conclusion, it is not necessary for the Court to answer the Pretore di Brescia's questions concerning the Treaty provisions on free movement. I therefore do not consider it necessary to express an opinion on those questions.
Conclusion
38. I am accordingly of the opinion that the Court should rule that:
(1) Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents precludes a national rule which makes the validity of an agency contract conditional upon the commercial agent being entered in the appropriate register.
(2) In applying national law, the national court called upon to interpret that law is required to do so, as far as possible, in the light of the wording and purpose of the directive in order to achieve the result pursued by the directive.
Full & Egal Universal Law Academy