Opinion of the Advocate General — ECLI:EU:C:2000:137
Date: 2000-03-16
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Italy

summary, I am of the opinion that the Court's case-law establishes two rules: (1) a directive cannot of itself impose obligations on individuals in the absence of proper implementation in national law; (34) (2) the national courts must nevertheless interpret national law, as far as possible, in the light of the wording and purpose of relevant directives. While that process of interpretation cannot, of itself and independently of a national law implementing the directive, have the effect of determining or aggravating criminal liability, it may well lead to the imposition upon an individual of civil liability or a civil obligation which would not otherwise have existed. 36. Those two rules have implications for the case now before the Court. The Pretore di Brescia is under an obligation, when interpreting the provisions of Article 9 of Law No 204 and Article 1418 of the Italian Civil Code, to have regard to Directive 86/653. He is not required to reach a result which is contrary to express provisions of Italian law, but that does not appear to be the case here. According to the Italian Government, there are no legislative rules in Italian law which explicitly provide 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 appears, therefore, that the Pretore di Brescia is obliged to resolve the dispute in the main proceedings on the basis of a different interpretation of Italian law which is in conformity with Directive 86/653. That conclusion is supported by the fact that, as already mentioned, the Corte di Cassazione has, after this reference was submitted to theCourt, changed its case-law so that a failure to register in accordance with Law No 204 no longer entails as a matter of Italian law the nullity of agency contracts. (35) 37. In the light of that conclusion, it is not necessary for the Court to answer the Pretore di Brescia's questions concerning the Treaty provisions on free movement. I therefore do not consider it necessary to express an opinion on those questions. Conclusion 38. I am accordingly of the opinion that the Court should rule that: (1) 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 precludes a national rule which makes the validity of an agency contract conditional upon the commercial agent being entered in the appropriate register. (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. 1: Original language: English. 2: - Case C-215/97 [1998] ECR I-2191. 3: - OJ 1986 L 382, p. 17. 4: - GURI No 119 of 22 May 1985, p. 3623. 5: - In the Italian, that provision reads 'il contratto è nullo quando è contrario a norme imperative. 6: - According to Article 1(2), a commercial agent is 'a self-employed intermediary who has continuing 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 principal. 7: - Paragraph 11 of the judgment. 8: - Paragraph 18 of the judgment. 9: - Joined Cases C-297/88 and C-197/89 Dzodzi [1990] ECR I-3763, paragraph 39 of the judgment. See also Case C-352/95 Phytheron International v Bourdon [1997] ECR I-1729, paragraphs 11 to 14. 10: - See Case C-39/94 SFEI and Others [1996] ECR I-3547, paragraph 24 of the judgment. See also Case 65/81 Reina v Landeskreditbank Baden-Württemberg [1982] ECR 33, paragraphs 7 and 8, and Case C-10/92 Balocchi v Ministero delle Finanze [1993] ECR I-5105, paragraphs 16 and 17. 11: - Documents produced by the defendant show that the manager of Centrosteel has dual German and Italian nationality. 12: - See Case C-83/91 Meilicke v ADV/ORGA [1992] ECR I-4871. 13: - See, for example, Case 126/80 Salonia v Poidomani and Giglio [1981] ECR 1563, paragraph 6 of the judgment, and Case C-446/93 SEIM v Subdirector-Geral das Alfândegas [1996] ECR I-73, paragraph 28. 14: - See Case C-343/90 Lourenço Dias v Director da Alfândegas do Porto [1992] ECR I-4673, Case C-18/93 Corsica Ferries [1994] ECR I-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 I-5025, paragraphs 33 and 34. 15: - Joined Cases 98/85, 162/85 and 258/85 Bertini v Regione Lazio [1986] ECR 1885, paragraph 8 of the judgment. 16: - Joined Cases C-304/94, C-330/94, C-342/94 and C-224/95 [1997] ECR I-3561. 17: - Council Directive 91/156/EEC of 18 March 1991 amending Directive 75/442/EEC on waste, OJ 1991 L 78, p. 32; Council Directive 91/689/EEC of 12 December 1991 on hazardous waste, OJ 1991 L 377, p. 20. 18: - Paragraph 40 of the judgment. 19: - See also, in support of this view, Case C-105/94 Celestini v Saar-Sektkellerei Faber [1997] ECR I-2971, paragraph 22 of the judgment, and Advocate General Fennelly's Opinion in Case C-266/96 Corsica Ferries France v Gruppo Antichi Ormeggiatori del Porto di Genova and Others [1998] ECR I-3949, paragraph 20. 20: - Case C-286/88 [1990] ECR I-191. 21: - See also Case C-428/93 Monin Automobiles [1994] ECR I-1707 and Joined Cases C-422/93, C-423/93 and C-424/93 Zabala Erasun and Others [1995] ECR I-1567 concerning the necessity of replying to questions where the main proceedings have become moot. 22: - Case 152/84 Marshall v Southampton and South-West Hampshire Area Health Authority [1986] ECR 723, and Case C-91/92 Faccini Dori v Recreb [1994] ECR I-3325, paragraph 26 of the judgment. 23: - See, for example, Case 14/83 Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891, and Case C-131/97 Carbonari and Others [1999] ECR I-1103, paragraph 48 of the judgment. 24: - See, for example, Case 79/83 Harz v Deutsche Tradax [1984] ECR 1921, and Case C-334/92 Wagner Miret [1993] ECR I-6911. 25: - Case C-106/89 [1990] ECR I-4135. 26: - First Council Directive 68/151/EEC of 9 March 1968 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies 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(I), p. 41. 27: - Case 14/86 Pretore di Salò v Persons Unknown [1987] ECR 2545. See also Case 80/86 Kolpinghuis Nijmegen [1987] ECR 3969. 28: - See, for example, Wagner Miret, cited in note 23, paragraph 22 of the judgment. See also the Opinion of Advocate General Van Gerven in Case C-262/88 Barber [1990] ECR I-1889, p. I-1937, stating that Community law does not compel national courts to give a contra legem interpretation, and the Opinion of Advocate General Saggio in Joined Cases C-240/98 and C-244/98 Océano Grupo v Rocío Murciano Quintero, delivered on 16 December 1999, paragraph 28. 29: - Case C-168/95 [1996] ECR I-4705. 30: - Paragraph 41. 31: - Paragraph 42, emphasis added. 32: - See P. Craig, 'Directives: Direct Effect, Indirect Effect and the Construction of National Legislation, 1997, E.L.Rev., p. 519, at p. 527. 33: - See, for example, Joined Cases C-74/95 and C-129/95 X [1996] ECR I-6609, paragraphs 23 and 24 of the judgment. 34: - See similarly my Opinion in Joined Cases C-304/94, C-330/94, C-342/94 and C-224/95 Tombesi and Others, cited in note 15, paragraph 37. 35: - See above at paragraph 5.