Opinion of the Advocate General — ECLI:EU:C:2013:301
Date: 2013-05-15
Language of the case: Dutch
Subject matter: Right of establishment;Freedom to provide services;Rome Convention of 19 June 1980
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary — Judgment of the Court (Third Chamber), 17 October 2013 1. Questions referred for a preliminary ruling — Jurisdiction of the national court — Assessment of the necessity and relevance of the questions referred (Art. 267 TFEU) 2. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Interpretation sought because of the applicability of provisions of EU law arising from a reference made by national law — Jurisdiction to give that interpretation (Art. 267 TFEU) 3. Judicial cooperation in civil matters – Convention on the law applicable to contractual obligations — Freedom of choice — Limits — Mandatory rules — Meaning — Restrictive interpretation — Assessment by the national court (Rome Convention of 19 June 1980, Arts 3(1) and 7(2)) 4. Judicial cooperation in civil matters – Convention on the law applicable to contractual obligations — Freedom of choice — Limits — Mandatory rules — Non-application of the law of a Member State, which is chosen by the parties to a contract and transposes Directive 86/653 — Application of the national implementing legislation of the State of the forum providing for protection going beyond the requirements of that directive — Lawfulness — Conditions (Rome Convention of 19 June 1980, Arts 3 and 7(2); Council Directive 86/653) 1. See the text of the decision. (see para. 28) 2. See the text of the decision. (see paras 30, 31) 3. To give full effect to the principle of the freedom of contract of the parties to a contract, which is the cornerstone of the Rome Convention, reiterated in the Rome I Regulation, it must be ensured that the choice freely made by the parties as regards the law applicable to their contractual relationship is respected in accordance with Article 3(1) of the Rome Convention, so that the plea relating to the existence of a ‘mandatory rule’ within the meaning of the legislation of the Member State concerned, as referred to in Article 7(2) of that convention, must be interpreted strictly. The classification of national provisions as ‘public-order legislation’ applies to national provisions compliance with which has been deemed to be so crucial for the protection of the political, social or economic order in the Member State concerned as to require compliance therewith by all persons present on the national territory of that Member State and all legal relationships within that State. It is thus for the national court, in the course of its assessment of whether the national law which it proposes to substitute for that expressly chosen by the parties to the contract is a ‘mandatory rule’, to take account not only of the exact terms of that law, but also of its general structure and of all the circumstances in which that law was adopted in order to determine whether it is mandatory in nature in so far as it appears that the legislature adopted it in order to protect an interest judged to be essential by the Member State concerned. (see paras 47, 49, 50) 4. Articles 3 and 7(2) of the Rome Convention of 19 June 1980 on the law applicable to contractual obligations must be interpreted as meaning that the law of a Member State of the European Union which meets the minimum protection requirements laid down by Directive 86/653 on the coordination of the laws of the Member States relating to self-employed commercial agents and which has been chosen by the parties to a commercial agency contract may be rejected by the court of another Member State before which the case has been brought in favour of the law of the forum, owing to the mandatory nature, in the legal order of that Member State, of the rules governing the situation of self-employed commercial agents, only if the court before which the case has been brought finds, on the basis of a detailed assessment, that, in the course of that transposition, the legislature of the State of the forum held it to be crucial, in the legal order concerned, to grant the commercial agent protection going beyond that provided for by that directive, taking account in that regard of the nature and of the objective of such mandatory provisions. (see para. 52, operative part)