C-215/97

* Original language: Greek. 1 — OJ 1986 L 382, p. 17. 2 — See, on that point, the analysis by Jean-Mane Leloup: 'La directive européenne sur les agents commerciaux', in La semaine juridique. Édition générale, N o 48 (1987), p. I-3308, and by the same author: 'La directive européenne sur les '2. For the purposes of this Directive, "com- agents commerciaux', in La Semaine juridique — Édition mercial agent" shall mean a self-employed entreprise (Études et commentaires). N o 15024 (1987), pp. 491-499. intermediary who has continuing authority

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O P I N I O N O F MR COSMAS — CASE C-215/97

to negotiate the sale or the purchase of goods '1. Each party shall be entitled to receive on behalf of another person, hereinafter from the other on request a signed written called the "principal", or to negotiate or con- document setting out the terms of the agency clude such transactions on behalf of and in contract including any terms subsequendy the name of that principal.' 3 agreed, waiver of this right shall not be per- mitted.

4. Chapter II of the Directive (Articles 3 to 5) sets out the rights and obligations of com- 2. Notwithstanding paragraph 1 a Member mercial agents and their principals. State may provide that an agency contract shall not be valid unless evidenced in writ- ing.'

5. Chapter III of the Directive (Articles 6 to 12) regulates the question of remunerating commercial agents for the commercial trans- 7. According to Article 16, the Directive actions they have performed and specifies does not affect the application of the law of those cases in which commercial agents are the Member State where the latter provides entitled to commission. for the immediate termination of the agency contract: (a) because of the failure of one party to carry out all or part of his obliga- tions; or (b) where exceptional circumstances arise.

— he has brought the principal new 3. The commercial agent shall be entitled to customers or has significandy compensation for the damage he suffers as a increased the volume of business result of the termination of his relations with with existing customers and the the principal. principal continues to derive sub- stantial benefits from the busi- ness with such customers, and

Such damage shall be deemed to occur par- ticularly when the termination takes place in circumstances:

— the payment of this indemnity is equitable having regard to all the circumstances and, in particular, the commission lost by the com- mercial agent on the business — depriving the commercial agent of the transacted with such customers. commission which the proper perfor- Member States may provide for mance of the agency contract would have such circumstances also to procured him whilst providing the prin- include the application or other- cipal with substantial benefits linked to wise of a restraint of trade clause, the commercial agent's activities, within the meaning of Article 20;

— and/or which have not enabled the com- mercial agent to amortise the costs and expenses that he had incurred for the per- (b) The amount of the indemnity may formance of the agency contract on the not exceed a figure equivalent to an principal's advice. indemnity for one year calculated from the commercial agent's average annual remuneration over the pre- ceding five years and if the contract goes back less than five years the indemnity shall be calculated on the average for the period in question;

10. Article 1 of Italian Law N o 204 of 3 May 1985 4 provides that the activity of 13. Article 1742 of the Italian Civil Code commercial agents (agenti di commercio) or defines an agency contract. According to that representatives (rappresentanti di commer- article, an agency contract accords one party cio) may be exercised by any person who has continuing authority to promote, on behalf been given continuing authority, by one or of the other party and for remuneration, the more undertakings, to promote the conclu- sion of contacts in one or more specific sec- tors. 5 — As the Commission pointed out in paragraph 52 of its writ- ten observations, by providing merely for administrative penalties in cases of failure to register, Law N o 204 of 1985 on the compulsory registration of commercial agents has abrogated the provision of Law N o 326 of 12 March 1968 4 — Gazzetta ufficiale della Repubblica italiana (GURI) N o 119 which specifically prohibited the conclusion of an agency of 22 May 1985, p. 3623. For an analysis of that legislation, contract with an agent not entered in the register and also see, for instance, Roberto Baldi, Il contratto di agenzia, provided for criminal sanctions. See, on that point, R. Baldi, Milan, Giuffré, 1997 ( N o 601), p. 313 et seq. op. cit., p. 321 et seq.

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BELLONE v YOKOHAMA

15. Article 1751 of the Italian Civil Code, comprehensively amended by Article 4 of 17. Furthermore, under Article 1418 of the Legislative Decree N o 303 of 1991, regulates Italian Civil Code, which is part of Chapter the question of indemnity should the con- XI on the invalidity of contracts, a contract tract be terminated. It provides that, at the is void if it is incompatible with a mandatory time the contract is terminated, the principal provision (norma imperativa) unless the law must pay the commercial agent an indemnity provides otherwise. if at least one of the following conditions is met: the agent has brought the principal new customers or has significantly increased the volume of business with existing customers and the principal continues to derive sub- stantial benefits from the business with such customers. Payment of the indemnity is equitable having regard to all the circum- stances, in particular, the commission lost by 18. The national court points out that, the commercial agent on the business trans- according to Italian case-law, an agency con- acted with such customers. tract entered into by an unregistered person is void because it infringes the mandatory provision laid down in the abovementioned 6 — Supplemento ordinario alla GURI, Serie generale, N o 221 of Article 9 of Law N o 204 of 1985, 8 and an 20 September 1991, p. 11. 7 — The Commission considers some elements of the national legislation in issue incompatible with the Directive and therefore sent the Italian Republic a reasoned opinion cover- ing those points on 26 June 1997. 8 — See R. Baldi, op. cit., p. 322 et seq.

9 — As the Commission points out (in paragraphs 32 and 53 of its written observations), the decisions of the Italian Court of Cassation have clarified the differing nature, value and function of the register of commercial agents and 23. Considering that a question arises as to representatives as compared with the professional registers provided for in Article 2231 of the Italian Civil Code. The whether the national legislation in issue is former is intended to protect commercial agents and compatible with the Directive, the Tribunale representatives and provide economic operators with a guarantee that they are dealing with persons who possess Civile — Sezione Lavoro, Bologna, has the technical and moral qualities necessary for the exercise referred the following question to the Court of an activity based on trust; it has no social objective or function (unlike the case of registers for the traditional of Justice for a preliminary ruling: professions (lawyers, doctors and engmeers, for instance)), and is not intended to serve a public interest (as is the case of the notary public register, for example). 10 — According to the order for reference, Ms Bellone claimed LIT 8 362 968 by way of remuneration, LIT 412 000 by way of compensation for loss of clientele and LIT 34 266 666 by way of damages for premature termina- tion; alternatively, in tne event that the latter claim was dis- 'Is Directive 86/653/EEC compatible with missed, Ms Bellone claimed LIT 16 000 000 by way of com- pensation in lieu of notice. Articles 2 and 9 of Italian Law N o 204 of

26. I must make a preliminary point here. I n accordance with the settled case-law of the Court of Justice, 12 a directive may not of itself impose obligations on an individual and may not therefore be relied upon as such 24. The national court is asking the Court of against an individual. Justice to determine the compatibility of the Directive and certain provisions of the national legislation. Let me first point out that, in accordance with consistent case- law, 1 1 the Court cannot, in proceedings under Article 177 of the Treaty, rule whether a measure of national law is valid from the 27. However, the Court of Justice has point of view of Community law. It is, how- repeatedly held that: '... the Member States' ever, competent to provide the national court obligation arising from a directive to achieve with all criteria for the interpretation of the result envisaged by the directive and Community law which may enable that their duty under Article 5 of the Treaty to court to determine the issue of compatibility take all appropriate measures, whether gen- for the purposes of the decision in the case eral or particular, to ensure the fulfilment of before it. that obligation, is binding on all the authori- ties of the Member States including, for mat- ters within their jurisdiction, the courts. It follows that, when applying national law, whether adopted before or after the direc- tive, the national court called upon to inter- pret that law must do so, as far as possible, in the light of the wording and the purpose 25. In the light of the foregoing, it seems to of the directive so as to achieve the result it me that the national court is essentially ask- has in view and thereby comply with the ing the Court of Justice to determine

29. It seems to me helpful, for the purposes 30. It must be pointed out, first, that the of resolving this dispute, to apply the argu- purpose of the Directive is to protect those ments developed by the Court of Justice in persons who fall within its definition of its judgment of 13 November 1990, Marleas- commercial agent. Consequendy, in order to mg, 14 in so far as the similarities between the examine whether a person may benefit from two cases permit — a view endorsed by the the protection guaranteed by the Directive Commission. In Marleasing, under the and enjoy the rights conferred on him by its (Spanish) national legislation in force, lack of provisions, it is necessary to examine cause was deemed a ground for declaring the whether that person legally qualifies as a constitution of a public limited company commercial agent. To do that, it is necessary void, even though Article 11 of Council to ascertain whether making the acquisition Directive 68/151/EEC, 1 5 which lists exhaus- of the status of commercial agent subject to requirements additional to those provided for in the Directive does not substantially frustrate the purpose of the Directive itself 13 — See, for instance. Case C-106/89 Marleasing v La Comercial Internacional de Alimentación [1990] ECR I-4135, para- and thus in practice remove the protection graph 8; Case C-421/92 Habermann-Bekermann v Arbeit- that the provisions of the Directive are erwohlfahrt, Bezirksverband Ndb./Opf. [1994] ECR I-1657, paragraph 10; Case C-472/93 Spano and Others v intended to guarantee. In other words, in Fiat Geotech and Fiat Hitachi [1995] ECR I-4321, para- graph 17; and Case C-91/92 Faccini Dori, cited in footnote this case, it is necessary to ascertain whether 12, paragraph 26. the provisions of the Directive are to be con- 14 — Case C-106/89 Marleasing, cited in footnote 13 above strued as precluding an agency contract con- (paragraph 9). 15 — Council Directive 68/151/EEC on coordination of safe- cluded with a commercial agent who is not guards which, for the protection of the interests of mem- bers and others, are required by Member States of compa- nies within the meaning of the second paragraph of Article 58 of the Treaty, with a view to making such safeguards equivalent throughout the Community (OJ, English Special Edition 1968(1), p. 41). 16 — Case C-106/89 Marleasing, cited in footnote 13 above.

17 — Registration of commercial agents is required by law in a number of other Member States as well. That is the case in Germany, for instance, where a commer- cial agent is considered to be a trader and, as such, required to declare his business name and place of business for the purpose of entry in the commercial register. Failure of a commercial agent to register is punishable by a fine, but this does not result in the validity of the agency contract also being affected (Paragraphs 14 and 29 of the Handels- gesetzbuch (German Commercial Code)).

may not engage in his activity without first registering. and (c) that he exercises, on behalf of and in However, failure to register does not result in the agency contract being void; registration is an administrative meas- the name of the principal, an activity which ure ( mesure de police administrative) rather than a con- dition governing status as a commercial agent (see the may consist either simply in being an inter- article by J.-M. Leloup in La semaine juridique, Edition mediary for the sale or purchase of goods or Générale, N o 48 (paragraph 14), cited in footnote 2, as well as the comments of Professor J. Hémard, in Revue trimes- in both acting as intermediary and conclud- trielle de droit commercial et de droit économique, 1959, N o 37, p. 596, and 1966, N o 10, p. 108).

ister)). Failure to register may result in a fine or imprison- ment, but that does not affect the validity of the contract 32. It therefore follows that Article 1 (2) does between the commercial agent and the principal. not require a commercial agent to be entered In Austria, the United Kingdom, Ireland, Finland and D e n - mark, commercial agents and representatives do not have t o in a register or list set up for that purpose be entered in any kind of register. In Sweden, the obligation to register applies only to com- before he can enjoy the protection provided mercial agents and representatives involved in buying and under the Directive. I do not, however, con- selling immovable property, and failure to register may result in imprisonment or a fine. sider that in itself sufficient basis for con- Portugal has a public register in which certain activities and certain documents or contracts, such as, for example, cluding that the Member States are expressly agency or commercial representation contracts, have to be prohibited from establishing a register of recorded if they are in writing. Failure to register does not affect the validity of the contract which remains fully effec- that kind in which commercial agents have tive.

33. The interpretation of other provisions of the Directive leads me to that same conclu- 35. Consequently, it is apparent from the sion. Article 13, the only provision of the abovementioned provisions of Articles 13 Directive to mention the form of the con- and 16 to 18 that, where the Community leg- tract and, therefore, to refer to the validity of islature wished to refer to the conditions the agency contract, provides that, on the governing the validity of agency contracts one hand, each party is entitled to request (Article 13), it did so exhaustively and and obtain from the other party a signed expressly. Furthermore, where it wished to document setting out the content of the regulate the conditions governing the con- agency contract, including any terms subse- tinuance of an agency contract, which pre- quently agreed and, on the other, that not- supposes that the contract in question is withstanding paragraph 1 of that article, a valid from the outset, it again did so Member State may provide that an agency expressly, referring, where necessary, to the contract is valid only if evidenced in writing. laws of the individual Member States (Articles 16 to 18).

BELLONE v YOKOHAMA

37. If then we apply to this case the solution provided by the Court of Justice in Marleas- ing, mutatis mutandis, I consider that, since the Directive refers only to a single con- dition as regards validity of contracts (namely, that the Member States may require 39. In my view, that is the only interpreta- contracts to be in writing), it was the inten- tion consistent with the spirit and the letter tion of the Community legislature to stipu- of the Directive. Consequently, it is irrel- late exhaustively in that provision the condi- evant whether, in accordance with Italian tions governing the validity of contracts. In legal literature and case-law, the registration other words, since the provisions of the requirement should be construed as applying Directive do not list among the grounds of nullity of a contract failure of the commer- cial agent to be entered in a register, it is suf- 19 — See, for example, Case C-106/89 Marleasing, cited in foot- ficient, in order for the contract to be con- note 13, paragraph 8; Case C-421/92 Habermann- Beltermann, cited in footnote 13, paragraph 10; Case sidered valid 'within the meaning of the C-472/93 Spano, cited in footnote 13, paragraph 17; and Directive, that the conditions laid down by Case C-91/92 Faccini Dori, cited in footnote 12, paragraph

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exclusively to Italian commercial, agents resi- the Directive prejudiced, if the contract were dent in Italy and to agency contracts to be declared void. Therefore, in order to ensure performed in Italy and not to «commercial that the provisions of the Directive are effec- agents who carry on their activity abroad. 22 tive, that is to say that the rights conferred In point of fact, even if a principai who is on commercial agents by Community law established in another Member State con- are given the best protection possible, the cludes with an Italian commercial, agent who Directive must be construed as meaning that is not registered pursuant to Law N o 204 of registration should not be deemed a prereq- 1985 a contract that is to be performed in uisite for the validity of an agency con- Italy, it seems to me that the security of com- tract, 23 and cannot have the effect of pre- mercial transactions which, according to the cluding, diminishing or prejudicing in any second recital, is one of the aims of the way the rights commercial agents enjoy by Directive, would be jeopardised, and the virtue of the provisions of the Directive. rights conferred on the commercial agent by

V — Conclusion

40. I n the light of the foregoing, I propose t h a t the C o u r t give the following answer t o t h e q u e s t i o n referred t o it by the T r i b u n a l e Civile, B o l o g n a — Sezione Lavoro:

T h e p r o v i s i o n s of C o u n c i l Directive 8 6 / 6 5 3 / E E C of 18 D e c e m b e r 1986 o n the c o o r d i n a t i o n of t h e laws of the M e m b e r States relating to self-employed c o m m e r - cial agents m u s t b e interpreted as p r e c l u d i n g national rules the effect of w h i c h , albeit o n t h e basis of t h e inteirpretation a d o p t e d b y t h e national c o u r t s , is t o r e n d e r v o i d agency c o n t r a c t s w h e r e the commercial agents are n o t entered in the a p p r o - p r i a t e register.