C-166/85
ECLI:EU:C:1987:27
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OPINION OF MR MANCINI —CASE 166/85
O P I N I O N O F M R ADVOCATE GENERAL M A N C I N I delivered on 22 January 1987 *
Mr President, Justice held that the Italian Republic had Members of the Court, failed to fulfil its obligations in that respect (judgment of 1 March 1983 in Case 300/81 Commission v Italy [1983] ECR 449). However, the Corte d'Appello (Court of Appeal), Venice, had already been called 1. On 12 December 1977 the Council of upon to apply it in criminal proceedings. the European Communities issued, pursuant to Article 57 of the EEC Treaty, Directive 77/780/EEC on the coordination of laws, regulations and administrative provisions relating to the taking up and the pursuit of 2. The facts are as follows. Italo Bullo and the business of credit institutions (Official Francesco Bonivento, employees of the Journal 1977, L 322, p. 30). The directive Banca Agricola Popolare of Cavarzere constituted the first stage towards achieving (province of Venice), were charged with the freedom of establishment of credit offence of misappropriating private funds institutions and the liberalization of banking (Article 315 of the Italian Criminal Code) services and set out (a) to 'eliminate the for having granted loans of an amount most obstructive differences between the higher than that laid down in the relevant laws of the Member States as regards the rules of the Banca d'Italia (Italian central rules to which these institutions are subject' bank) and of the Italian Treasury Ministry. (second recital in the preamble) and (b) to Article 315 of the Italian Criminal Code introduce common requirements for the provides that 'a public official or a person grant of authorization to pursue the responsible for a public service who appro business of ą credit institution (eighth recital priates for himself or, in any way, diverts in the preamble). Once those objectives have for the profit of himself or a third party been attained each State should be in a money... not belonging to the public position to provide for Overall supervision' administration of which he was in of the activities of the credit institutions no possession by virtue of his office or service matter where they are operating in the shall be punished by a term of imprisonment Community (third recital in the preamble; of from three to eight years . . . '. see also the Court's judgment of 11 December 1985 in Case 110/84 Municipality of Hillegom v Cornelius Hillenius [1985] ECR 3947 at p. 3962, paragraph 23 et seq.). Having been found guilty by the court of first instance, the two employees appealed inter alia on the ground that to classify employees of credit institutions as persons The directive, which the Member States responsible for a public service is contrary were to implement by the end of 1979, was to the provisions and objectives of Directive not incorporated into Italian law until July 77/780/EEC. In its order of 15 April 1985 1985, that is to say more than two years the Corte d'Appello, Venice, held that the after the judgment in which the Court of Banca Agricola Popolare was among the
* Translated from the Italian.
BULLO AND BONIVENTO
institutions to which the directive applied; effectiveness, stating that it 'applies not only however, as regards the implications of the to the rules laid down by the institutions of directive with regard to the case at issue the the EEC by regulation but also to the national court requested the Court of rulings resulting . . . from judgments of the Justice for a preliminary ruling pursuant to Court of Justice interpreting Community Article 177 of the EEC Treaty. legislation' (judgment No 113 of 1 April 1985, No 107 bis GURI, 8.5.1985.
It asked in particular whether there may 'lawfully be included in or, by contrast, must there be excluded from, the "result to be Accordingly, if the Court's answer to the achieved" [under the directive] . . . , as question put by the national court differs regards the rules [laid down by the from that which I shall shortly put forward, directive] on the structural organization of the Corte d'Appello, Venice, will have to the credit institution . . . , the classification decide the main case in the light of the of the employees of the "credit institutions" relationship between Community law and . . . as "public officials" or as "persons national law as it is defined by those responsible for a public service" as defined judgments. i n . . . the Italian Codice Penale [Penal Code] now in force'. The order states that it is critical to resolve this issue 'both because 3. In thé course of the proceedings before the answer to the question may affect the the Court of Justice written observations severity of the penalty laid down . . . and have been submitted by the accused, the because if the second interpretation Italian Government and the Commission of [referred to in the order] . . . is correct, a the European Communities.
The accused question might arise as to the constitutional consider that to classify employees of lawfulness [cf. Article 315 of the Italian private banks as 'persons responsible for a Penal Code] . . . and the question might also public service' gives the courts the power arise whether or not [the national court] directly to supervise the activities of those . . . ought to apply the directive directly*. institutions and precludes any discretion in their administration because it assigns Let us dwell briefly on that last remark. criminal-law importance to contracts which Although it was understandable at the time should be regarded as lawful in so far as at which it was made it does not correspond they take place in the context of a private to the present situation. Nine years ago the undertaking. Indeed, in their view such Court of Justice stated that the national checks and constraints are incompatible court is 'under a duty to give full effect to with the entrepreneurial nature of the [provisions of Community law] . . . , if business of a credit institution; hence they necessary refusing of its own motion to impede the implementation of the objectives apply any conflicting provision of national pursued by the directive and conflict with legislation . . . , and it is not necessary for the freedom of establishment and freedom the court to request.
. . the prior setting of competition guaranteed by the Treaty. aside of such provision by legislative or other constitutional means' (judgment of 9 March 1978 in Case 106/77 Amminis- For their part, the Italian Government and trazione delle Finanze dello Stato v the Commission point out that no provision Simmenthai SpA [1978] 629, 645, paragraph of the directive debars the Member States 24). The Italian Constitutional Court did from applying the classification at issue to not accept that principle immediately. employees of private banks. Moreover, it is However, recently it has recognized its impossible to infer the existence of such a
OPINION OF MR MANCINI — CASE 166/85
prohibition from the directive taken as a more severe penalty. Consequently, from whole; this can be seen simply from the fact the point of view of Community law, it does that the directive did not take the place of not affect credit institutions from other national rules, it merely coordinated them. Member States; more specifically, it does not restrict their right of access to the exercise of banking business in Italy.
4. As has been seen, the approximation of legislation effected by the directive is The accused do not agree. However, their concerned with the 'credit institution', that argument, based on the entrepreneurial is to say 'an undertaking whose business is nature of banking business, is unfounded. to receive deposits or other repayable funds As we have seen, it is on the basis of the from the public and to grant credits for its entrepreneurial nature of banking business own account' (first indent of Article 1). that the directive gives deposit-taking and Power to carry out such activities is condi- loan-granting institutions the right of unre- tional on 'an instrument issued . . . by the stricted establishment in any Member State. authorities' of the Member States (second But this does not imply that Community law indent of Article 1), the issue of which is precludes in principle the national legis- dependent on a series of requirements lature from conferring on the courts — and (Article 3). The paramount consideration of in particular on the criminal courts — a the directive as a whole is the prohibition of 'power of supervision' over the adminis- any discriminatory treatment vis-à-vis credit tration of the banks. Such a power would be institutions on the basis of nationality or of incompatible with the Treaty and with the the fact that an undertaking is not estab- directive at issue only if it goes so far as to lished in a Member State where the services restrict the right of establishment; as I have are provided (first recital in the preamble). just observed, that is certainly not the case here even if it is assumed (but not neces- sarily accepted) that Article 315 of the Italian Criminal Code does enable the courts to supervise the activities of the credit institutions. The directive, however, contains no provision relating, even remotely or indi- rectly, to the employment relationship and the status of employees of credit institutions; nor does the result intended to be achieved by the directive — the free I am aware that the classification of pursuit of the business of credit institutions employees of private banks as persons throughout the Community — entail the responsible for a public service is the subject exemption of those employees from the duty of lively debate in the banking industry and to comply with the criminal-law provisions in Italian legal circles and I personally in force in the Member State of estab- regard as persuasive the arguments of those lishment, at least unless those provisions are who consider it to be anachronistic or, in drafted or applied in a discriminatory any event, excessive in the light of today's manner. Furthermore, within the Italian requirements for the protection of credit. legal order the classification at issue is However, the fact remains that the issue is important solely for the purposes of criminal purely one of domestic law and its law, sometimes as part of the actus reus, at resolution is a matter solely for the national others as a condition for the application of a legislature.
BULLO AND BONIVENTO
5. In the light of the foregoing considerations I propose that the Court should answer the question referred to the Court of Justice for a preliminary ruling by the Corte d'Appello, Venice, by order of 15 April 1985 in the criminal proceedings against Italo Bullo and Francesco Bonivento as follows:
'Council Directive 77/780/EEC of 12 December 1977 on the coordination of laws, regulations and administrative provisions relating to the taking up and pursuit of the business of credit institutions does not preclude the legislation of a Member State from attributing to the employees of such institutions the classifi- cation of "public officials" or "persons responsible for a public service" for the ends and purposes of the application of provisions of criminal law.'