C-485/01
ECLI:EU:C:2002:710
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- Súdny dvor Európskej únie
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- 62001CC0485
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- eur-lex.europa.eu ↗
CAPRINI
O P I N I O N O F ADVOCATE GENERAL JACOBS delivered on 21 November 2002 1
1. In this case, the Tribunale civile e penale their principals, to promote the security of di Trento (Italy) asks the Court of Justice commercial transactions, and to facilitate whether Council Directive 86/653/EEC of trade in goods between Member States by 18 December 1986 on the coordination of approximating the legal systems of the the laws of the Member States relating to Member States in the matter of commercial self-employed commercial agents (the representation. 5 To those ends, the Direc- Directive) 2 precludes a rule of national tive provides rules concerning the rights law which makes the enrolment of a and obligations of commercial agents and commercial agent in the register of under- principals (Articles 3 to 5), remuneration of takings conditional on that agent's name commercial agents (Articles 6 to 12), and having first been entered in a register of conclusion and termination of agency commercial agents. contracts (Articles 13 to 20).
3. Italian Law No 204 of 3 May 1985 Legal background provides for the establishment of a register of commercial agents and representatives in each Italian Chamber of Commerce. Article 2 of Law No 204 requires 'those acting or intending to act as a commercial 2. The Directive coordinates the laws of the agent or representative' to enrol on the Member States as regards the legal relation- register. Article 9 of Law No 204 prohibits ship between commercial agents 3 and their 'any person not enrolled on the register principals. 4 As the recitals to the Directive from pursuing the activity of commercial make clear, it is intended to protect the agent or representative', under pain of an interests of commercial agents vis-à-vis administrative penalty.
1 — Original language: English 2 — OJ 1986 L 382, p. 17. 3 — By Article 1(2) of the Directive, a commercial agent is defined as 'a self-employed intermediary who has continu- ing authority to negotiate the sale or the purchase of goods on behalf of another person... or to negotiate and conclude such transactions on behalf of and in the name of that 4. Article 2188 of the Italian Civil Code principal'. provides for the establishment of a register 4 — Article 1(1) of the Directive provides that 'the harmon- isation measures prescribed by this Directive shall apply to the laws, regulations and administrative provisions of the Member States governing the relations between commercial agents and their principals'. 5 — Recitals two and three in the preamble to the Directive.
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of undertakings which is to be maintained Italian Civil Code was to be interpreted as by the office of the register of undertakings. requiring that contracts concluded by Certain types of undertaking are required agents not registered in accordance with to be entered on this register by virtue of Law No 204 be treated as void. Following Article 2195 of the code. For other types of the Court's judgment in Bellone, the Corte undertaking, of which commercial agents di cassazione revised its case-law so that a are one, entry is optional under the terms of failure to register in accordance with Law Article 2083 of the code. Article 2084 of No 204 now no longer entails as a matter the code stipulates that the conditions of Italian law the nullity of agency governing the operation of various cat- contracts. 8 egories of undertaking are to be laid down by legislation. By Article 2189, the regis- trar's office must verify that 'the legal requirements for entry in the register are met'.
The facts and question referred 5. In the case of Bellone, 6the Court of Justice was called upon to consider whether it is compatible with the Directive for a national law to make the validity of a commercial agency contract contingent upon the commercial agent having been 7. The facts, as set out in the order for entered on a register of commercial agents. reference, are as follows. The claimant, Ms The Court held that, while the Directive Caprini, is an Italian national. The defend- does not prevent Member States from ant is the registrar of undertakings in maintaining a register of commercial Trento. Ms Caprini applied to the defend- agents, 7it does preclude a national legal ant on 10 April 2001 for her name to be rule requiring a commercial agent to be entered in the register of undertakings as a entered on the register as a condition of the commercial agent for the sale of advertising validity of a commercial agency contract. space. The defendant refused Ms Caprini's request on the ground that she had not been entered in the register of commercial agents and representatives, established by Italian Law No 204. Because inclusion in that latter register was, according to the defend- 6. The judgment in Bellone brought into ant, a condition governing the operation of question the validity of the prior case-law an undertaking within the meaning of of the Italian Corte di cassazione, which Article 2084 of the Civil Code, being had from 1989 held that Article 1418 of the required by Articles 2 and 9 of Law No 204, it was also to be regarded as a legal requirement for the purposes of 6 — Case C-215/97 [1998] ECR I-2191. 7 — Paragraph 11 of the judgment. Several Member States have established registers of this nature. For a comparative analysis of national practice, see footnote 17 of the Opinion 8 — See paragraph 17 of the Court's judgment in the subsequent of Advocate General Cosmas. Case C-456/98 Centrosteel [2000] ECR I-6007.
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Article 2189, the fulfilment of which the 11. The first proposition is that there is registrar must verify before an entry could nothing in the Directive which prevents a be made in the register of undertakings. Member State from requiring commercial agents to be entered in an appropriate register if that Member State considers it expedient to do so in order to satisfy certain administrative needs. 9 8. Ms Caprini appealed against the defen- dant's decision, first to the Giudice del registro, the court responsible for supervis- ing the defendant, which dismissed her action on 2 November 2001, and then to the Tribunale di Trento, seeking either an order securing her entry on the register of 12. However, that first proposition is undertakings or a declaration that she was limited by a second proposition, which under no obligation to have her name explains the Court's decision in Bellone, entered on that register. namely that a Member State cannot make the legal protection afforded by the Direc- tive to commercial agents vis-à-vis their principals conditional upon inclusion in any register which it chooses to establish or 9. The Tribunale di Trento, noting the upon any basis which is not explicitly difference between the situation before it provided for under the terms of the Direc- and that which gave rise to the reference for tive. 10 a preliminary ruling in Bellone, has stayed the main proceedings and has asked the Court whether the Directive precludes a rule of national law which makes the enrolment of the commercial agent in the register of undertakings conditional on that agent's name having been entered in an 13. The national legal requirement at issue appropriate register. in Bellone, whereby an agency contract would not be valid unless the agent was entered in the register of commercial agents, clearly curtailed the legal protection afforded by the Directive. The consequence for the commercial agent of the invalidity Assessment of her agency contract under domestic law was that she was unable to obtain from the principal either the remuneration guaran- teed to her by chapter III of the Directive or 10. In order to address the question referred by the Tribunale di Trento, it is useful to revisit the reasoning underlying 9 — Paragraph 11 of the judgment. the Court's judgment in Bellone. In my 10 — Paragraphs 13 and 14 of the judgment. An example of a restriction which Member States may permissibly make to opinion, two propositions of relevance to the protection afforded under the Directive is the imposi- the present case can be derived from that tion of a requirement that, in order to be valid, an agency contract must be evidenced in writing. That requirement is judgment. explicitly permitted by Article 13(2) of the Directive.
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the indemnities provided for under chapter entered on the register of undertakings does IV of the Directive. in practice adversely affect the legal pro- tection available to agents under the Direc- tive. In the absence of such registration, Italian chambers of commerce will not grant to agents the certification which they need in order to be able to comply with the fiscal and social regulations applicable to 14. Turning to the present case, the ques- them. She submits that the ability of agents tion referred describes a national measure to enter into valid agency contracts is of no providing that an agent who is not entered on a register of commercial agents may not assistance to them if they are then unable to obtain entry on the register of undertak- carry out the contracts which they have ings. concluded.
15. The Commission maintains in its sub- 18. I am not convinced by that argument. missions to the Court that such a measure is not incompatible with the Directive given that it does not curtail the legal protection which the Directive affords to commercial agents vis-à-vis their principals. Such a rule would not of itself prevent commercial agents who had not been entered on either of the registers in question from concluding 19. It seems clear from the Court's judg- agency contracts which were valid and ment in Bellone that Member States are enforceable in the national courts, the permitted, consistent with the terms of the application of which would be governed Directive, to attach administrative con- by the terms of the Directive. sequences to inclusion in a register of commercial agents, provided always that the legal protection afforded by the Direc- tive is not curtailed.
16. I agree with that analysis.
20. It is not clear to me that the con- sequences which Ms Caprini describes as flowing from non-inclusion in the register 17. Ms Caprini maintains, however, that of commercial agents, namely that unregis- the Italian legal rule requiring commercial tered commercial agents will be unable to agents to be entered on the register of obtain entry on the register of undertak- commercial agents before they can be ings, with repercussions for the regulation I - 2376
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of their fiscal and social affairs, could be to be entered in a register of such agents said to curtail the protection which the before they can be included in a register of Directive provides to commercial agents in companies is compatible with the Directive, legal relations with their principals. provided always that the consequence is not in any way to curtail the legal pro- tection afforded by the Directive to com- mercial agents. Such would be the case, for example, if the validity of agency contracts were made subject to the entry of a 21. It is therefore my opinion that a commercial agent on either or both of the national law requiring commercial agents registers in question.
Conclusion
22. I am accordingly of the opinion that the Court should rule that:
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 does not preclude a national law which makes the enrolment of a commercial agent in the register of undertakings conditional on that agent's name having been entered in a register of commercial agents, provided that the inclusion or otherwise of a commercial agent in either register does not affect the validity of agency contracts entered into by that agent or otherwise weaken the legal protection afforded to that agent by the aforementioned Directive.
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