C-456/98

CENTROSTEEL

OPINION OF ADVOCATE GENERAL JACOBS delivered on 16 March 2000 *

1. In this sequel to Bellone v Yokohama 1 3. Article 2 of Law No 204 provides that the Pretore di Brescia (Italy) asks questions in each Italian Chamber of Commerce a about the interpretation and effect, in the register of commercial agents and repre- context of an agency contract, of the Treaty sentatives is to be established in which 'all provisions on freedom of establishment and persons pursuing or intending to pursue the freedom to provide services. For the rea- activity of commercial agent or representa- sons given below, however, I consider that tive are to be registered'. Article 9 of Law the dispute before the Pretore can be No 204 prohibits 'any person not so regis- resolved on the basis of Council Directive tered from pursuing the activity of com- 86/653/EEC of 18 December 1986 on the mercial agent or representative'. Arti- coordination of the laws of the Member cle 1418 of the Italian Civil Code stipulates States relating to self-employed commercial that a 'contract is null and void if contrary agents. 2 to mandatory provisions'. 4 The Italian Corte di Cassazione ruled in 1989 that Article 9 of Law No 204 is a mandatory provision. Consequently, an agency con- tract 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.

The background

rules concerning the rights and obligations in the present case was made, and was not of commercial agents and principals (Arti- invoked in the observations presented to cles 3 to 5), remuneration of commercial the Court of Justice in the present case. agents (Articles 6 to 12), and conclusion and termination of agency contracts (Arti- cles 13 to 20). The Directive does not deal with the question of registration of com- mercial 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 The facts and arguments a register of commercial agents. 6However, 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 6. The facts, as set out in the order for national rule which makes the validity of reference, are as follows. The claimant, an agency contract conditional upon the Centrosteel Sri, is an Italian company with commercial agent being entered in the headquarters in Brescia. It is not registered appropriate register'.7 Given the factual as a commercial agent under the provisions context of Bellone, that statement must be of Law No 204. The defendant, Adipol taken to mean that the Italian courts' GmbH, is an Austrian company with head- interpretation of Article 9 of Law No 204 quarters in Vienna. Centrosteel made an as a mandatory provision for the purpose oral agreement, in late 1989 or early in of Article 1418 of the Civil Code was 1990, with Adipol to find, both in Italy and contrary to Directive 86/653. abroad, buyers and sellers of metal pro- ducts 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. 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 7. Adipol contends that the order for agency contracts. That judgment, how- payment cannot be made. As Centrosteel ever, was given after the order for reference was not registered in accordance with Law No 204, the agency contract is, according to the Italian case-law dating from 1989, 6 — Paragraph 11 of the judgment. void and unenforceable. Centrosteel replies 7 — Paragraph 18 of the judgment. that Law No 204 is incompatible with

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Factual and legal errors in the order for not the Pretore di Brescia's assumption that reference Centrosteel acted as the agent of Adipol was correct.

9 — See Case C-39/94 SFEI and Others [1996] ECR I-3547, 8 — joined Cases C-297/88 and C-197/89 Dzodzi [1990] ECR paragraph 24 of the judgment. See also Case 65/81 Reina v 1-3763, paragraph 39 of the judgment. See also Case Landeskreditbank Baden-Württemberg [1982] ECR 33, C-352/95 Phytheron International v Bourdon [1997] ECR paragraphs 7 and 8, and Case C-10/92 Balocchi v Ministero I-1729, paragraphs 11 to 14. delle Finanze [1993] ECR I-5105, paragraphs 16 and 17.

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cuted for the most part in Poland. Austria is according to Austrian rather than Italian therefore the correct forum for the dispute law. Austrian law does not contain a in the main proceedings. 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 require- ment is compatible with the Treaty.

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 18. That contention is, in my view, uncon- compliance with national procedural rules, vincing. It is, as explained above, not for its jurisdiction cannot depend upon com- the Court of Justice to investigate the facts pliance with the forum rules of private or to question which law should be applied international law. Compliance with those in the main proceedings as a matter of rules is a matter solely for the Italian courts private international law. which ultimately bear the responsibility for deciding in the main proceedings.

20. The fact that the case might be resolved 23. First, while the Court of Justice has by interpreting national law in the light of ruled that it will not answer questions the Directive is, in my opinion, not a which are general or hypothetical,11 or sufficient ground for dismissing as irrele- questions concerning provisions of Com- vant the questions referred by the national munity law which are manifestly incapable court. Indeed, it may provide a basis for of applying in, or obviously have no answering those questions. Where the bearing on, the dispute in the main pro- Court can assist the national court, it does ceedings, 12 the Court has so far used its not confine itself to the specific provisions power to dismiss references on grounds of invoked in the order for reference. irrelevance very sparingly. 1 3It is illustra- tive 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'. 14 In the more recent cases of Tõmbest and Others 15 the Court was asked questions about the interpretation 21. The Commission and Adipol contend, of Directives 91/156/EEC and 91/689/ finally, that the reference is inadmissible EEC. 16 It held, on the admissibility of because the main proceedings concern an those questions, that 'whilst it seems that agreement between an Italian company, some of the events in the main proceedings managed by a person of Italian national- pre-date the entry into force of Directives ity, 10 and an Austrian company which was 91/156 and 91/689, the orders for reference made, executed and terminated in the contain an explanation of those events and 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. 11 - See Case C-83/91 Meilicke v ADV/ORGA [1992] ECR 1-4871. 12 — See, for example, Case 126/80 Salonia v Poidomani and Ciglio [1981] ECR 1563, paragraph 6 of the judgment, and Case C-446/93 SEIM v Subdirector-Ceral das Alfan- degas [1996] ECR 1-73, paragraph 28. 13 — See Case C-343/90 Lourenço Dias v Director da Alfânde- gas do Porto [1992] ECR 1-4673, Case C-18/93 Corsica Ferries [1994] ECR 1-1783, paragraphs 14 and 15 of the judgment, and Joined Cases C-279/96, C-280/96 and C-281/96 Ansaldo Energia and Others [1998] ECR 1-5025, paragraphs 33 and 34. 14 _ joined Cases 98/85, 162/85 and 258/85 Bertini v Regione 22. I find that objection unconvincing. Lazio [1986] ECR 1885, paragraph 8 of the judgment. 15 — Joined Cases C-304/94, C-330/94, C-342/94 and C-224/95 [1997] ECR 1-3561. 16 — Council Directive 91/156/EEC of 18 March 1991 amend- 10 — Documents produced by the defendant show that the ing Directive 75/442/EEC on waste, OJ 1991 L 78, p. 32; manager of Centrosteel has dual German and Italian Council Directive 91/689/EEC of 12 December 1991 on nationality. hazardous waste, OJ 1991 L 377, p. 20.

25. It is readily apparent that the circum- stances in this case differ from those before the Court in Falciola. The questions refer- red in this case are not entirely unconnected 24. That generous attitude towards prima with the substance of the dispute, the judge facie irrelevant questions is, in my view, has referred explicitly to provisions of entirely appropriate given the purpose and Community law in his questions and, as fundamental importance of the procedure the Court acknowledged in Tombesi, it laid down in Article 177 of the Treaty. 18 may be appropriate to answer questions References should be dismissed only if it is concerning events which pre-date the entry obvious that they are entirely unconnected into force of the Community rules referred with the substance of the main proceedings. for interpretation. That is likely to be a rare occurrence, and there is only one example in the Court's recent case-law. In Falciola 19 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 liabi- lity, prevented the judiciary from function- ing in an impartial and satisfactory manner. 26. In any event, the concerns underlying Those questions were asked in the course of the national court's questions can, as the proceedings concerning the award of a Commission itself points out, be met by public works contract by the Municipal explaining the effect of Directive 86/653. Council of Pavia to a competitor of the The application of that directive is not construction company Impresa Falciola subject to a requirement of a cross-border Angelo. The Court of Justice found, in element. The Commission's and Adipol's these circumstances, that the questions objection therefore does not apply if the referred bore no relation to the subject- Court replies to the Pretore's questions on matter of the case, as they did not in any the basis of the Directive rather than on the basis of the Treaty provisions on free movement. 17 — Paragraph 40 of the judgment. 18 — See also, in support or this view. Cast· CM 05/94 Celestim v Saar-Sektkellerei haber |1997] ECR I-2971, paragraph 22 or the judgment, and Advocate Gencral Fennelly's Opinion in Case ('-266/96 Corsica Ferries France v Gruppo Antichi 20 — See also Case C-428/93 Monin Automobiles [1994] ECR Ormeggiatori del Porto di Cernila aandOthers [ 1998] ECR I-1 7 07 and Joined Cases C-422/93, C-423/93 and I-3949, paragraph 20. C-424/93 Zabala Erasum and Others [1995] ECR I-1567· concerning the necessity of replying to questions where the 19 — Casc C-286/88 [ 1990| ECR I-191. main proceedings have become moot.

31. It is settled case-law that a directive cannot of itself impose obligations on individuals.21 It is, however, also settled 28. The questions referred by the Pretore di case-law that the courts in the Member Brescia concern the compatibility of States are under an obligation to interpret national rules, which make entry in a their national laws as far as possible in such register compulsory for all commercial a way as to achieve the result pursued by agents and which provide that an agency directives. The obligation to interpret contract concluded by a person not entered national law' in conformity with directives on that register is void, with the Treaty applies both in proceedings between indi- provisions on free movement. viduals and public authorities22 and in proceedings between individuals.23 Thus, in Marleasing24 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.25 Since that directive listed exhaustively the grounds on which the nullity of a company could be 29. Before any attempt is made to answer ordered, and since those grounds did not those broad questions, it is necessary to include unlawfulness of the activity actu- recall the context in which they have arisen. ally carried out by the company (as The Court of Justice held in Bellone that a national rule which makes the validity of an agency contract conditional upon the 21—Case 152/84 Marshall v Southampton and South-West commercial agent being entered in a regis- Hampshire Area Health Authority [1986] ECR 723, and Case C-91/92 Faccini Dori v Recreb [1994] ECR 1-3325, ter is contrary to Directive 86/653. In the paragraph 26 of the judgment. present case, Centrosteel invokes that rul- 22 — See, for example, Case 14/83 Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891, and Case ing in support of its claim that Adipol must C-131/97 Carbonari and Others [1999] ECR 1-1103, be ordered to pay commission which is paragraph 48 of the judgment. 23 — See, for example, Case 79/83 Harz v Deutsche Tradax allegedly due under an agreement between [1984] ECR 1921, and Case C-334/92 Wagner Miret the two parties. However, the Pretore di [1993] ECR 1-6911. 24 — Case C-106/89 [1990] ECR 1-4135. Brescia takes the view that Centrosteel 25 — First Council Directive 68/151/EEC of 9 March 1968 on cannot rely on Directive 86/653, since coordination of safeguards which, for the protection of the interests of members and others, are required by Member directives do not have direct effect in States of companies within the meaning of the second proceedings between individuals. Hence paragraph of Article 58 of the Treaty, with a view to making such safeguards equivalent throughout the Com- the reference to provisions of the Treaty. munity, OJ, English Special Edition 1968(1), p. 41.

opposed to its object as stated in its had doubts about the conformity of the constitutional document), the national Italian law, under which he was charged, court could not as a matter of Community with two directives which it was designed law order the nullity of the defendant to implement. Consequently, it asked the company, La Comercial, for lack of lawful Court of Justice whether a procedure could purpose even if, as alleged by Marleasing, it be adopted to 'achieve the elimination from had been created solely to defraud cred- national legislation of provisions which are itors. incompatible with Community law'.

33. Those well established principles con- (see the judgment in Kolpinghuis Nijme- cerning the interpretation of national law gen, cited above, paragraphs 13 and 14).' are not affected by the Court's ruling in Arcavo. 28 The defendant in that case faced criminal prosecution in an Italian court for having discharged dangerous substances into the environment without being in 34. That statement might appear to impose possession of a licence. The Italian court drastic limitations on the principle of inter- pretation of national law in accordance with Community directives. 31 I do not 26 — Case 14/86 Pretore di Salò v Persons Unknown [1987] consider, however, that the statement ECR 2545. See also Case 80/86 Kolpinghuis Nijmegen [1987] ECR 3969. should be read in that way.

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the Kolpinghuis case cited by the Court reach a result which is contrary to express also concerned criminal liability. In so far provisions of Italian law, but that does not as the wording might appear to apply appear to be the case here. According to the outside the criminal context, it is difficult Italian Government, there are no legislative to reconcile both with the Court's prior and rules in Italian law which explicitly provide subsequent case-law. 32 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 35. In summary, I am of the opinion that appears, therefore, that the Pretore di the Court's case-law establishes two rules: Brescia is obliged to resolve the dispute in (1) a directive cannot of itself impose the main proceedings on the basis of a obligations on individuals in the absence different interpretation of Italian law which of proper implementation in national is in conformity with Directive 86/653. law; 33 (2) the national courts must never- That conclusion is supported by the fact theless interpret national law, as far as that, as already mentioned, the Corte di possible, in the light of the wording and Cassazione has, after this reference was purpose of relevant directives. While that submitted to the Court, changed its case- process of interpretation cannot, of itself law so that a failure to register in accor- and independently of a national law imple- dance with Law No 204 no longer entails menting the directive, have the effect of as a matter of Italian law the nullity of determining or aggravating criminal liabi- agency contracts. 34 lity, it may well lead to the imposition upon an individual of civil liability or a civil obligation which would not otherwise have existed.

(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.

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