61998J0456

1. Freedom of movement for persons - Freedom of establishment - Independent commercial agents - Directive 86/653 - National rule which makes the validity of an agency contract conditional upon the commercial agent being entered in the appropriate register - Not permissible

(Council Directive 86/653)

2. Acts of the institutions - Directives - Implementation by the Member States - Need to ensure that directives are effective - Obligations of national courts

(EC Treaty, Art. 189, third para. (now Art. 249 EC, third para.))

1. Directive 86/653/EEC on the coordination of the laws of the Member States relating to self-employed commercial agents precludes national legislation which makes the validity of an agency contract conditional upon the commercial agent being entered in the appropriate register.

( see paras 14, 19 and operative part )

2. The national court is bound, when applying provisions of domestic law predating or postdating a directive, to interpret those provisions, so far as possible, in the light of the wording and purpose of the directive, so that those provisions are applied in a manner consistent with the result pursued by the directive.

( see paras 16, 19 and operative part )

In Case C-456/98,

REFERENCE to the Court under Article 177 of the EC Treaty (now Article 234 EC) by the Pretore di Brescia, Italy, for a preliminary ruling in the proceedings pending before that court between

Centrosteel Srl

and

Adipol GmbH,

on the interpretation 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 (OJ 1986 L 382, p. 17) and of the provisions in Chapter 2 and Chapter 3 of Title III of Part Three of the EC Treaty concerning, respectively, freedom of establishment and freedom to provide services,

THE COURT (First Chamber),

composed of: L. Sevón, President of the Chamber, P. Jann (Rapporteur) and M. Wathelet, Judges,

Advocate General: F.G. Jacobs,

Registrar: R. Grass,

after considering the written observations submitted on behalf of:

- Adipol GmbH, by B. Terrano, of the Trieste Bar, and G. Orlandi, of the Brescia Bar,

- the Italian Government, by U. Leanza, Head of the Legal Department in the Ministry of Foreign Affairs, acting as Agent, assisted by P.G. Ferri, Avvocato dello Stato,

- the Commission of the European Communities, by M. Patakia and A. Aresu, both of its Legal Service, acting as Agents,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 16 March 2000,

gives the following

Judgment

1 By order of 24 November 1998, received at the Court on 15 December 1998, the Pretore di Brescia (Magistrates' Court, Brescia) referred to the Court for a preliminary ruling under Article 177 of the EC Treaty (now Article 234 EC) three questions on the interpretation 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 (OJ 1986 L 382, p. 17, the Directive) and of the provisions in Chapter 2 and Chapter 3 of Title III of Part Three of the EC Treaty concerning, respectively, freedom of establishment and freedom to provide services.

2 Those questions were raised in proceedings between Centrosteel Srl (Centrosteel), a company established in Brescia (Italy), and Adipol GmbH (Adipol), a company whose principal place of business is in Vienna (Austria).

3 It is apparent from the documents before the national court that, between 1989 and 1991, Centrosteel acted as commercial agent on behalf of Adipol pursuant to an agency contract entered into between the parties. After the contract had been terminated, Centrosteel claimed payment of certain sums by way of commission.

4 When Adipol refused to pay the sums claimed by Centrosteel, proceedings were brought at first instance before the Pretore di Brescia. The defendant contended that the agency contract in question was void because Centrosteel was not entered in the register of commercial agents and representatives, such registration being compulsory under Article 2 of Italian Law No 204 of 3 May 1985 (GURI No 119 of 22 May 1985, p. 3623, Law No 204).

5 Article 2 of Law No 204 provides that each Chamber of Commerce is to maintain a register of commercial agents and representatives 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 who is not so registered from pursuing the activity of commercial agent or representative.

6 According to the order for reference, the Italian courts have, in the past, consistently held that an agency contract entered into by a person not entered on the register is void on the ground of infringement of the mandatory rule laid down in Article 9 of Law No 204 and that such a person cannot recover commission and payments in respect of the activities carried out by him.

7 When the Court of Justice was asked by the Tribunale (District Court), Bologna, Italy, to give a preliminary ruling on this subject, it held that the Directive precluded a national rule which made the validity of an agency contract conditional upon the commercial agent being entered in the appropriate register (Case C-215/97 Bellone v Yokohama [1998] ECR-I 2191).

8 In that judgment, the Court held that, as regards the form of an agency contract, Article 13(2) of the Directive mentioned only writing as a requirement for the validity of a contract. Since the Community legislature had dealt exhaustively with the matter, the Member States could not therefore impose any condition other than requiring that a written document be drawn up (Bellone, paragraph 14).

9 The national court, taking Bellone into account, takes the view that, since under the settled case-law of the Court of Justice directives do not have direct effect in relations between individuals, Bellone cannot result in Law No 204 being disapplied in the proceedings before it. According to the national court, it may therefore be necessary to refer directly to the provisions of the Treaty, in particular those provisions relating to freedom of establishment and freedom to provide services, which, unlike directives, are directly and immediately applicable in national legal systems. If the relevant Italian legislation were incompatible with those Community principles, that would inevitably mean that it could not be applied.

10 In those circumstances the national court decided to stay proceedings and refer the following questions to the Court of Justice for a preliminary ruling:

1. What is the interpretation of Articles 52, 53, 54, 55, 56, 57 and 58 of the EC Treaty; 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?

2. Do the provisions of the Treaty on freedom of establishment contained in Articles 52 to 58 preclude national legislation which makes the validity of an agency contract subject to entry of the commercial agent in an appropriate register?

3. Do the provisions on freedom to provide services contained in Articles 59 to 66 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

11 Adipol, the Italian Government and the Commission claim that the reference for a preliminary ruling is inadmissible on the grounds that:

- it is based on a misunderstanding of the facts since Centrosteel did not act as commercial agent but merely secured certain payments from Adipol under arrangements the validity of which is questionable (Adipol);

- the provisions of the Treaty relating to freedom of establishment and freedom to provide services were not raised by the parties in the main proceedings (Adipol);

- the rules of private international law do not confer jurisdiction on the Italian courts to entertain the dispute in the main proceedings since only the Austrian courts were competent in that respect (Commission);

- the questions referred are unnecessary for the resolution of the dispute in the main proceedings (Adipol, Italian Government and Commission).

12 With the exception of the last argument raised, which is actually related to the substance of the case and will therefore be considered with the substance, the objections to admissibility thus raised cannot be accepted for the reasons set out by the Advocate General in paragraphs 10 to 27 of his Opinion and which the Court adopts.

Substance

13 First, it must be noted that the Directive is intended to harmonise the laws of the Member States governing the legal relationship between the parties to a commercial agency contract, irrespective of any cross-border elements. Its scope is therefore broader than the fundamental freedoms laid down by the EC Treaty.

14 It should also be noted that in Bellone the Court ruled on a situation identical to that which led to the case now pending before the national court, that is to say, the validity of an agency contract, subject to Italian law, where the agent is not entered on the register of commercial agents and representatives. The Court held in that case that the Directive precluded the validity of the agency contract from being conditional on the commercial agent's entry in such a register.

15 It is true that, according to settled case-law of the Court, in the absence of proper transposition into national law, a directive cannot of itself impose obligations on individuals (Case 152/84 Marshall v Southampton and South-West Hampshire Health Authority [1986] ECR 723, paragraph 48, and Case C-91/92 Faccini Dori v Recreb [1994] ECR I-3325, paragraph 20).

16 However, it is also apparent from the case-law of the Court (Case C-106/89 Marleasing v La Comercial Internacional de Alimentación [1990] ECR I-4135, paragraph 8; Case C-334/92 Wagner Miret v Fondo de Garantía Salarial [1993] ECR I-6911, paragraph 20; Faccini Dori, paragraph 26; and Joined Cases C-240/98 to C-244/98 Océano Grupo Editorial v Salvat Editores [2000] ECR I-4941, paragraph 30) that, when applying national law, whether adopted before or after the directive, the national court that has to interpret that law must do so, as far as possible, in the light of the wording and the purpose of the directive so as to achieve the result it has in view and thereby comply with the third paragraph of Article 189 of the EC Treaty (now the third paragraph of Article 249 EC).

17 Where it is seised of a dispute falling within the scope of the Directive and arising from facts postdating the expiry of the period for transposing the Directive, the national court, in applying provisions of domestic law or settled domestic case-law, as seems to be the case in the main proceedings, must therefore interpret that law in such a way that it is applied in conformity with the aims of the Directive. As the Advocate General points out in paragraph 36 of his Opinion, it seems in that regard that the Corte Suprema di Cassazione (Supreme Court of Cassation), following the judgment in Bellone, has changed its case-law so that a failure to comply with the obligation prescribed by Law No 204 to be entered in the register of commercial agents and representatives no longer entails the nullity of an agency contract in Italian law.

18 In view of the considerations set out above, it is likewise unnecessary, as the Italian Government and the Commission have rightly submitted, to answer the national court's questions concerning the Treaty provisions on freedom of establishment and freedom to provide services, since the case pending before that court may be resolved on the basis of the Directive and the case-law of the Court of Justice on the effects of directives.

19 In those circumstances, the answer to be given to the questions referred must be that the Directive precludes national legislation which makes the validity of an agency contract conditional upon the commercial agent being entered in the appropriate register. The national court is bound, when applying provisions of domestic law predating or postdating the said Directive, to interpret those provisions, so far as possible, in the light of the wording and purpose of the Directive, so that those provisions are applied in a manner consistent with the result pursued by the Directive.

Costs

20 The costs incurred by the Italian Government and by the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (First Chamber),

in answer to the questions referred to it by the Pretore di Brescia by order of 24 November 1998, hereby rules:

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 national legislation which makes the validity of an agency contract conditional upon the commercial agent being entered in the appropriate register. The national court is bound, when applying provisions of domestic law predating or postdating the said Directive, to interpret those provisions, so far as possible, in the light of the wording and purpose of the Directive, so that those provisions are applied in a manner consistent with the result pursued by the Directive.