C-422/85

Mr President, business activity, governed as such by Members of the Court, the fundamental freedoms guaranteed by the Treaties, or were the requirements of the protection of savings and of individual savers 1. In a judgment of 7 April 1987 in Case regarded as being of paramount 166/85 Bullo and Bonivento [1987] ECR importance and the activity of credit 1583, the Second Chamber of the Court institutions thus treated as an activity gave a preliminary ruling to the effect that pursued in the public interest of the 'the classification of employees of credit Community, with all the consequences institutions as "public officials" or as attaching thereto in terms of the "persons responsible for the public service" differences in the classification of that for the purposes of the application of the activity in the legal systems of the criminal law of a Member State is not Member States? contrary to the provisions or the objective of Council Directive 77/780/EEC of 12 December 1977 on the coordination of (2) Is the concept of authorization defined laws, regulations and administrative in Article 1 of the directive intended to provisions relating to the taking up and refer to an instrument which is issued pursuit of the business of credit institutions' in any form by the authorities of the (Official Journal, L 322, 17.12.1977, p. 30). Member States but which in any event establishes the legal status of, or confers a legal status upon, the credit institution concerned (precisely on account of the fact that the activity It will be recalled that the Member State in carried on by that institution is in the question was Italy and that the Court had public interest) or is that concept been requested to interpret the aforesaid intended to refer to any instrument Community directive by the Corte d'Appello authorizing in general terms the pursuit (Court of Appeal), Venice. However, before of a business activity, which — as a the judgment of the Court was given, the reflection of the freedom to engage in Pretore (Magistrate), Montagnana, had economic activity — already forms an referred to the Court, by order of 25 integral part of the body of rights October 1985 in criminal proceedings vested in every individual under the brought against Graziano Mattiazzo, the legal systems of the Member States. manager of a bank in that place, the following questions: (3) In the light of the objectives of the directive set out in the preamble thereto, is national legislation '(1) Under Directive 77/780/EEC regu- compatible with the aims pursued by lating the taking up of the business of the Community where it limits, restricts credit institutions, was the receipt of or confers a particular status on savings intended to constitute merely a anybody carrying on business as a

credit institution on account of the fact the arguments of those who consider it to that the activity carried on constitutes a be anachronistic or, in any event, excessive public service?' in the light of today's requirements for the protection of credit. However, the fact remains that the issue is purely one of domestic law and its resolution is a matter solely for the national legislature.' In view of the close analogy between the issues thus raised and that referred to by the Corte d'Appello, Venice, the Court's Those views were confirmed no less unequi- Registry requested the Pretore to inform it vocally by the judgment of 7 April 1987. whether, after judgment had been given in The Court stated that Directive 77/780 does Case 166/85 (cited above), he intended to not detract from 'the Member States' power maintain his request for a preliminary to lay down rules on the legal status of

That is not all. On the basis of the Court's interpretation, the Joint Criminal Chambers of the Italian Court of Cassation recently confirmed that the status of bank employees 2. In my view, the possibility referred to by is determined solely by reference to national the Italian magistrate cannot come about. law and that for that purpose 'the correct First of all, I would recall that in the approach is to undertake a far-reaching opinion which I delivered on 22 January review of the law so as to reconcile . .

OPINION OF MR MANCINI —CASE 422/85

It may therefore be concluded that the employees under the law of a Member State doubts raised by the Pretore, Montagnana, of certain legal classification; and that are no longer justified even as regards is an issue to which the Court has al- domestic law. At Community level, ready provided a solution which remains however, what he wants to know is whether satisfactory even in connection with the provisions and purposes of Directive different arguments advanced by the 77/780 prohibit the attribution to bank Pretore.

O n the basis of the foregoing considerations and in the light of the judgment of 7 April 1987 in Case 166/85 Bullo and Bonivento, I propose that the Court should reply to the questions referred to it for a preliminary ruling by the Pretore, Montagnana, by order of 25 October 1985 in criminal proceedings against Graziano Mattiazzo, as follows:

'Council Directive 77/780 of 12 December 1977 does not detract from the Member States' power to lay down rules on the legal status of credit institutions and does not put them under a duty t o require that the duties and powers given by credit institutions to their employees should be of a private nature. In particular, the classification of employees of credit institutions as "persons responsible for a public service" for the purposes of the application of the criminal law of a Member S u t e is not contrary to the provisions or the objectives of Directive 77/780.'