61997CC0215_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1 In this case, the Court of Justice is being asked to answer a question referred to it for a preliminary ruling by order of the Tribunale Civile - Sezione Lavoro (District Civil Court, Employment Division), Bologna, concerning the interpretation of 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 (1) (hereinafter the `Directive').
I - Legal background
A - The Community provisions
2 The aim of the Community legislature in adopting the Directive was to coordinate the laws of the Member States relating to commercial agents and to regulate the legal relationship between commercial agents and their principals. (2) According to the second recital in the preamble to the Directive: `the differences in national laws concerning commercial representation substantially affect the conditions of competition and the carrying-on of that activity within the Community and are detrimental both to the protection available to commercial agents vis-à-vis their principals and to the security of commercial transactions'. It is further emphasised (in the third recital) that it is necessary to approximate the legal systems of the Member States to the extent required for the proper functioning of the common market and that `in this regard the rules concerning conflict of laws do not, in the matter of "commercial representation", remove the inconsistencies referred to above, nor would they even if they were made uniform, and accordingly the proposed harmonisation is necessary notwithstanding the existence of those rules'. Those recitals clearly indicate that the Community legislature views the need to coordinate the laws of the Member States on commercial agents, and thus eliminate the existing disparities, as a fundamental objective which has to be achieved by the competent national bodies.
3 Article 1(2) of the Directive defines the concept of `commercial agent' as follows:
`2. For the purposes of this Directive, "commercial agent" shall mean a self-employed intermediary who has continuing authority to negotiate the sale or the purchase of goods on behalf of another person, hereinafter called the "principal", or to negotiate or conclude such transactions on behalf of and in the name of that principal.' (3)
4 Chapter II of the Directive (Articles 3 to 5) sets out the rights and obligations of commercial agents and their principals.
5 Chapter III of the Directive (Articles 6 to 12) regulates the question of remunerating commercial agents for the commercial transactions they have performed and specifies those cases in which commercial agents are entitled to commission.
6 Chapter IV of the Directive is entitled `Conclusion and termination of the agency contract' (Articles 13 to 20). Article 13 provides as follows:
`1. Each party shall be entitled to receive from the other on request a signed written document setting out the terms of the agency contract including any terms subsequently agreed. Waiver of this right shall not be permitted.
2. Notwithstanding paragraph 1 a Member State may provide that an agency contract shall not be valid unless evidenced in writing.'
7 According to Article 16, the Directive does not affect the application of the law of the Member State where the latter provides for the immediate termination of the agency contract: (a) because of the failure of one party to carry out all or part of his obligations; or (b) where exceptional circumstances arise.
8 Article 17 provides that:
`1. Member States shall take the measures necessary to ensure that the commercial agent is, after termination of the agency contract, indemnified in accordance with paragraph 2 or compensated for damage in accordance with paragraph 3.
2. (a) The commercial agent shall be entitled to an indemnity if and to the extent that:
- he has brought the principal new customers or has significantly increased the volume of business with existing customers and the principal continues to derive substantial benefits from the business with such customers, and
- the payment of this indemnity is equitable having regard to all the circumstances and, in particular, the commission lost by the commercial agent on the business transacted with such customers. Member States may provide for such circumstances also to include the application or otherwise of a restraint of trade clause, within the meaning of Article 20;
(b) The amount of the indemnity may not exceed a figure equivalent to an indemnity for one year calculated from the commercial agent's average annual remuneration over the preceding 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;
(c) The grant of such an indemnity shall not prevent the commercial agent from seeking damages.
3. The commercial agent shall be entitled to compensation for the damage he suffers as a result of the termination of his relations with the principal.
Such damage shall be deemed to occur particularly when the termination takes place in circumstances:
- depriving the commercial agent of the commission which the proper performance of the agency contract would have procured him whilst providing the principal with substantial benefits linked to the commercial agent's activities,
- and/or which have not enabled the commercial agent to amortise the costs and expenses that he had incurred for the performance of the agency contract on the principal's advice.
...'
9 Finally, in accordance with Article 18 of the Directive, the indemnity or compensation referred to in Article 17 is not payable: (a) where the principal has terminated the agency contract because of default attributable to the commercial agent which would justify immediate termination of the agency contract under national law; (b) where the commercial agent has terminated the agency contract, unless such termination is justified by circumstances attributable to the principal or on grounds of age, infirmity or illness of the commercial agent in consequence of which he cannot reasonably be required to continue his activities; (c) where, with the agreement of the principal, the commercial agent assigns his rights and duties under the agency contract to another person.
B - The national provisions in issue and the relevant case-law
10 Article 1 of Italian Law No 204 of 3 May 1985 (4) provides that the activity of commercial agents (agenti di commercio) or representatives (rappresentanti di commercio) may be exercised by any person who has been given continuing authority, by one or more undertakings, to promote the conclusion of contacts in one or more specific sectors.
11 Article 2 of that same Law provides that in each Chamber of Commerce a register of commercial agents and representatives is to be established in which `all persons pursuing or intending to pursue the activity of commercial agent or representative are to be registered'.
12 Article 9 of the Law `prohibits any person not so registered from pursuing the activity of commercial agent or representative'. It further stipulates that any person failing to comply with its provisions will be subject to an administrative penalty, namely a fine of between LIT 1 000 000 and LIT 4 000 000. The same penalty applies to principals who enter into an agency contract with persons not entered in the register. (5)
13 Article 1742 of the Italian Civil Code defines an agency contract. According to that article, an agency contract accords one party continuing authority to promote, on behalf of the other party and for remuneration, the conclusion of contracts in a specific sector. Each party has the right to obtain from the other a copy of the signed contract.
14 The Directive itself was implemented by Italian Legislative Decree No 303 of 10 September 1991 (6) which contains no provisions relating to Articles 2 and 9 of Law No 204 of 1985. (7)
15 Article 1751 of the Italian Civil Code, comprehensively amended by Article 4 of Legislative Decree No 303 of 1991, regulates the question of indemnity should the contract be terminated. It provides that, at the time the contract is terminated, the principal must pay the commercial agent an indemnity 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 substantial benefits from the business with such customers. Payment of the indemnity is equitable having regard to all the circumstances, in particular, the commission lost by the commercial agent on the business transacted with such customers.
16 Pursuant to that same article, no indemnity is payable: (a) where the principal has terminated the agency contract because of default attributable to the commercial agent and so serious that he cannot be allowed even temporarily to continue his activities; (b) where the commercial agent has terminated the agency contract, unless the termination is justified by circumstances attributable to the principal or on grounds of age, infirmity or illness of the commercial agent in consequence of which he cannot reasonably be required to continue his activities; or, where, with the agreement of the principal, the commercial agent assigns his rights and duties under the agency contract to another person.
17 Furthermore, under Article 1418 of the Italian Civil Code, which is part of Chapter XI on the invalidity of contracts, a contract is void if it is incompatible with a mandatory provision (norma imperativa) unless the law provides otherwise.
18 The national court points out that, according to Italian case-law, an agency contract entered into by an unregistered person is void because it infringes the mandatory provision laid down in the abovementioned Article 9 of Law No 204 of 1985, (8) and an unregistered agent cannot bring an action to recover commission for the activities he has performed. (9)
II - Facts
19 On 1 February 1993 an agency contract was concluded between Barbara Bellone and Yokohama Italia SpA (hereinafter `Yokohama') but was dissolved by that company on 13 May of the same year.
20 Ms Bellone then brought an action before the Pretore (Magistrate) competent to hear employment disputes at first instance, claiming payment of various indemnities. (10) The Pretore dismissed Ms Bellone's claims on the ground that, pursuant to Article 1418 of the Italian Civil Code, the agency contract was void because she was not entered in the register of commercial agents and representatives at the time when the contract was concluded, as required by Article 2 of Italian Law No 204 of 3 May 1985.
21 Ms Bellone appealed against the judgment of the Pretore to the Tribunale Civile - Sezione Lavoro (District Civil Court, Employment Division), Bologna, arguing that the ban on concluding an agency contract with persons not entered in the register was incompatible with Article 1(1) of the Directive.
22 The national court points out that the Directive, which is designed to harmonise the laws of the Member States governing relationships between commercial agents and principals, makes no provision for the establishment of a register. Article 1 defines a commercial agent by reference to the activity performed but does not lay down any specific administrative formalities.
III - The question submitted for a preliminary ruling
23 Considering that a question arises as to whether the national legislation in issue is compatible with the Directive, the Tribunale Civile - Sezione Lavoro, Bologna, has referred the following question to the Court of Justice for a preliminary ruling:
`Is Directive 86/653/EEC compatible with Articles 2 and 9 of Italian Law No 204 of 3 May 1985, which make the validity of an agency contract conditional upon the commercial agent being entered in the appropriate register.'
IV - The answer to the question submitted by the national court
24 The national court is asking the Court of 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, (11) the Court cannot, in proceedings under Article 177 of the Treaty, rule whether a measure of national law is valid from the point of view of Community law. It is, however, competent to provide the national court with all criteria for the interpretation of Community law which may enable that court to determine the issue of compatibility for the purposes of the decision in the case before it.
25 In the light of the foregoing, it seems to me that the national court is essentially asking the Court of Justice to determine whether the provisions of the Directive must be interpreted as being compatible or incompatible with a national provision under which an agency contract is valid only provided the commercial agent is entered in the appropriate register, failure to register rendering the contract void.
26 I must make a preliminary point here. In 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 against an individual.
27 However, the Court of Justice has repeatedly held that: `... the Member States' obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the Treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of the Member States including, for matters within their jurisdiction, the courts. It follows that, when applying national law, whether
adopted before or after the directive, the national court called upon to interpret that law must do so, as far as possible, in the light of the wording and the purpose of the directive so as to achieve the result it has in view and thereby comply with the third paragraph of Article 189 of the Treaty'. (13)
28 In this case, given the case-law of the national courts in regard to the requirement that a commercial agent be registered, failing which the contract is void, problems of interpretation arise for the national court because of the need to interpret the provisions of national law governing the subject-matter in issue in a manner compatible with the Directive.
29 It seems to me helpful, for the purposes of resolving this dispute, to apply the arguments developed by the Court of Justice in its judgment of 13 November 1990, Marleasing, (14) in so far as the similarities between the two cases permit - a view endorsed by the Commission. In Marleasing, under the (Spanish) national legislation in force, lack of cause was deemed a ground for declaring the constitution of a public limited company void, even though Article 11 of Council Directive 68/151/EEC, (15) which lists exhaustively the cases in which the nullity of a company may be ordered, does not include lack of cause among them. In its judgment, (16) the Court ruled that: `the requirement that national law must be interpreted in conformity with Article 11 of Directive 68/151 precludes the interpretation of provisions of national law relating to public limited companies in such a manner that the nullity of a public limited company may be ordered on grounds other than those comprehensively listed in Article 11 of the directive in question'.
30 It must be pointed out, first, that the purpose of the Directive is to protect those persons who fall within its definition of commercial agent. Consequently, in order to examine whether a person may benefit from the protection guaranteed by the Directive and enjoy the rights conferred on him by its provisions, it is necessary to examine whether that person legally qualifies as a commercial agent. To do that, it is necessary to ascertain whether making the acquisition 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 and thus in practice remove the protection that the provisions of the Directive are intended to guarantee. In other words, in this case, it is necessary to ascertain whether the provisions of the Directive are to be construed as precluding an agency contract concluded with a commercial agent who is not entered in the register being declared void, as provided for in Articles 2 and 9 of Law No 204 of 1985, that declaration of nullity following from the application of Article 1418 of the Italian Civil Code, as interpreted by the Italian courts, inasmuch as the registration requirement is considered to be a mandatory provision of Italian law.
31 According to Article 1(2) of the Directive, all that is required for a person to be considered a commercial agent and thus able to benefit from the protection guaranteed by the Directive, is that the three necessary and sufficient (substantive) conditions laid down therein are met, namely: that he is a self-employed intermediary; (b) that the contractual relationship is of a continuing character; and (c) that he exercises, on behalf of and in the name of the principal, an activity which may consist either simply in being an intermediary for the sale or purchase of goods or in both acting as intermediary and concluding sales or purchases of goods.
32 It therefore follows that Article 1(2) does not require a commercial agent to be entered in a register or list set up for that purpose before he can enjoy the protection provided under the Directive. I do not, however, consider that in itself sufficient basis for concluding that the Member States are expressly prohibited from establishing a register of that kind in which commercial agents have to be listed. (17) In other words, the establishment of a special register is not of itself incompatible with the Directive. Issues of compatibility with the provisions of the Directive arise solely because of the penalties provided for under the national legislation in the event of failure to register. In this case, the penalty is that the contract is rendered void, with the result that the commercial agent is deprived of the protection afforded by the Directive.
33 The interpretation of other provisions of the Directive leads me to that same conclusion. Article 13, the only provision of the Directive to mention the form of the contract and, therefore, to refer to the validity of the agency contract, provides that, on the one hand, each party is entitled to request and obtain from the other party a signed document setting out the content of the agency contract, including any terms subsequently agreed and, on the other, that notwithstanding paragraph 1 of that article, a Member State may provide that an agency contract is valid only if evidenced in writing.
34 However, in accordance with Article 16, the Directive is not to affect the application of the law of the Member States where the latter provides for the immediate termination of the agency contract: (a) because of the failure of one party to carry out all or part of his obligations; or (b) where exceptional circumstances arise. Furthermore, pursuant to Article 18 of the Directive, the indemnity or compensation referred to in Article 17 is not payable: (a) where the principal has terminated the agency contract because of default attributable to the commercial agent which would justify immediate termination of the agency contract under national law; (b) where the commercial agent has terminated the agency contract, unless such termination is justified by circumstances attributable to the principal or on grounds of age, infirmity or illness of the commercial agent in consequence of which he cannot reasonably be required to continue his activities; and (c) where, with the agreement of the principal, the commercial agent assigns his rights and duties under the agency contract to another person.
35 Consequently, it is apparent from the abovementioned provisions of Articles 13 and 16 to 18 that, where the Community legislature wished to refer to the conditions governing the validity of agency contracts (Article 13), it did so exhaustively and expressly. Furthermore, where it wished to regulate the conditions governing the continuance of an agency contract, which presupposes that the contract in question is valid from the outset, it again did so expressly, referring, where necessary, to the laws of the individual Member States (Articles 16 to 18).
36 Finally, analysis of the preparatory work that resulted in the adoption of the Directive yields a further argument in support of the solution set out above, namely that registration should not be considered a necessary and obligatory condition that a commercial agent has to fulfil before he can benefit from the protection afforded by the Directive. In its opinion on the proposal for a directive, (18) the Economic and Social Committee took the view that a `register' or `list' or `roll' should be drawn up to ensure certainty as to the law in respect of the professional qualifications of commercial agents. In the amended proposal for a directive which it submitted to the Council, the Commission did not, however, adopt the view of the Economic and Social Committee and did not change the wording of Article 4, clearly considering it unnecessary to require the Member States to establish a register or list in which commercial agents had to be entered before they could benefit from protection under the Directive. As the Commission rightly points out, we can infer from that that the requirement that a commercial agent be registered on a national list cannot have the effect of diminishing the rights commercial agents derive from the Directive or denying commercial agents the benefit of those rights.
37 If then we apply to this case the solution provided by the Court of Justice in Marleasing, mutatis mutandis, I consider that, since the Directive refers only to a single condition as regards validity of contracts (namely, that the Member States may require contracts to be in writing), it was the intention of the Community legislature to stipulate exhaustively in that provision the conditions governing the validity of contracts. In other words, since the provisions of the Directive do not list among the grounds of nullity of a contract failure of the commercial agent to be entered in a register, it is sufficient, in order for the contract to be considered valid within the meaning of the Directive, that the conditions laid down by the Directive itself - in Article 1(2) - be met. Therefore, as the Commission correctly points out, those provisions of the Directive preclude national rules which, albeit on the basis of the interpretation adopted by the national courts, include among the grounds for nullity of an agency contract the failure of a commercial agent to be registered.
38 In the light of the foregoing, the national court must interpret the national legislation by reference to the wording and purpose of the Directive, (19) which, in this case, does not require commercial agents to be entered in a register either as a condition for the exercise of their occupation or as an essential formal condition determining the validity of the contract. The national court must therefore, having regard to the usual methods of interpretation in its legal system, give precedence to the method which enables it to construe the national provision concerned in a manner consistent with the Directive (20) or ignore domestic rules of interpretation and the favoured interpretation in domestic case-law if they produce a result contrary to Community law. (21)
39 In my view, that is the only interpretation consistent with the spirit and the letter of the Directive. Consequently, it is irrelevant whether, in accordance with Italian legal literature and case-law, the registration requirement should be construed as applying exclusively to Italian commercial agents resident in Italy and to agency contracts to be performed in Italy and not to commercial agents who carry on their activity abroad. (22) In point of fact, even if a principal who is established in another Member State concludes with an Italian commercial agent who is not registered pursuant to Law No 204 of 1985 a contract that is to be performed in Italy, it seems to me that the security of commercial transactions which, according to the second recital, is one of the aims of the Directive, would be jeopardised, and the rights conferred on the commercial agent by the Directive prejudiced, if the contract were declared void. Therefore, in order to ensure that the provisions of the Directive are effective, that is to say that the rights conferred on commercial agents by Community law are given the best protection possible, the Directive must be construed as meaning that registration should not be deemed a prerequisite for the validity of an agency contract, (23) and cannot have the effect of precluding, diminishing or prejudicing in any way the rights commercial agents enjoy by virtue of the provisions of the Directive.
V - Conclusion
40 In the light of the foregoing, I propose that the Court give the following answer to the question referred to it by the Tribunale Civile, Bologna - Sezione Lavoro:
The provisions of 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 must be interpreted as precluding national rules the effect of which, albeit on the basis of the interpretation adopted by the national courts, is to render void agency contracts where the commercial agents are not entered in the appropriate register.
(1) - OJ 1986 L 382, p. 17.
(2) - See, on that point, the analysis by Jean-Marie Leloup: `La directive européenne sur les agents commerciaux', in La semaine juridique, Édition générale, No 48 (1987), p. I-3308, and by the same author: `La directive européenne sur les agents commerciaux', in La Semaine juridique, Édition entreprise (Études et commentaires), No 15024 (1987), pp. 491-499.
(3) - Article 1(3) provides that a commercial agent within the meaning of the Directive does not include: (a) a person who, in his capacity as an officer, is empowered to enter into commitments binding on a company or association; (b) a partner who is lawfully authorised to enter into commitments binding on his partners; (c) a receiver, a receiver and manager, a liquidator or a trustee in bankruptcy. In accordance with Article 2(1), the Directive does not apply to: (a) commercial agents whose activities are unpaid; (b) commercial agents when they operate on commodity exchanges or in the commodity market; (c) the body known as the Crown Agents for Overseas Governments and Administrations, as set up under the Crown Agents Act 1979 in the United Kingdom, or its subsidiaries. Furthermore, in accordance with Article 2(2), each of the Member States is to have the right to provide that the Directive will not apply to those persons whose activities as commercial agents are considered secondary by the law of that Member State.
(4) - Gazzetta ufficiale della Repubblica italiana (GURI) No 119 of 22 May 1985, p. 3623. For an analysis of that legislation, see, for instance, Roberto Baldi, Il contratto di agenzia, Milan, Giuffré, 1997 (No 601), p. 313 et seq.
(5) - As the Commission pointed out in paragraph 52 of its written observations, by providing merely for administrative penalties in cases of failure to register, Law No 204 of 1985 on the compulsory registration of commercial agents has abrogated the provision of Law No 326 of 12 March 1968 which specifically prohibited the conclusion of an agency contract with an agent not entered in the register and also provided for criminal sanctions. See, on that point, R. Baldi, op. cit., p. 321 et seq.
(6) - Supplemento ordinario alla GURI, Serie generale, No 221 of 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 covering 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 representatives as compared with the professional registers provided for in Article 2231 of the Italian Civil Code. The former is intended to protect commercial agents and representatives and provide economic operators with a guarantee that they are dealing with persons who possess the technical and moral qualities necessary for the exercise of an activity based on trust; it has no social objective or function (unlike the case of registers for the traditional professions (lawyers, doctors and engineers, 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 termination; alternatively, in the event that the latter claim was dismissed, Ms Bellone claimed LIT 16 000 000 by way of compensation in lieu of notice.
(11) - See, in particular, Joined Cases C-74/95 and C-129/95 X [1996] ECR I-6609, paragraph 21, and Case 223/78 Grosoli [1979] ECR 2621, paragraph 3.
(12) - See, in particular, Case 152/84 Marshall v Southampton and South-West Hampshire Area Health Authority [1986] ECR 723, paragraph 48, and Case C-91/92 Faccini Dori v Recreb [1994] ECR I-3325, paragraph 20.
(13) - See, for instance, Case C-106/89 Marleasing v La Comercial Internacional de Alimentacion [1990] ECR I-4135, paragraph 8; Case C-421/92 Habermann-Beltermann v Arbeiterwohlfahrt, Bezirksverband Ndb./Opf. [1994] ECR I-1657, paragraph 10; Case C-472/93 Spano and Others v Fiat Geotech and Fiat Hitachi [1995] ECR I-4321, paragraph 17; and Case C-91/92 Faccini Dori, cited in footnote 12, paragraph 26.
(14) - Case C-106/89 Marleasing, cited in footnote 13 above (paragraph 9).
(15) - Council Directive 68/151/EEC 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).
(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 commercial 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 Handelsgesetzbuch (German Commercial Code)). In Greece, self-employed commercial agents are required to be registered with the chamber of commerce and the tax authorities and to belong to the social security fund for traders (Article 1 of Presidential Decree No 249 of 23-28 June 1993, FEK, Series A, No 108), but the law does not prohibit persons who have not registered with the chamber of commerce from exercising the activity of commercial agent. In France, every commercial agent is required to be entered in a special register (Article 4(2) of Decree No 58-1345 of 23 December 1958, as subsequently amended on several occasions) which is normally kept by the registry of the commercial court (tribunal de commerce) for the area in which the commercial agent is resident. A commercial agent may not engage in his activity without first registering. However, failure to register does not result in the agency contract being void; registration is an administrative measure (mesure de police administrative) rather than a condition governing status as a commercial agent (see the article by J.-M. Leloup in La semaine juridique, Edition Générale, No 48 (paragraph 14), cited in footnote 2, as well as the comments of Professor J. Hémard, in Revue trimestrielle de droit commercial et de droit économique, 1959, No 37, p. 596, and 1966, No 10, p. 108). However, failure to register in the special register of commercial agents may result in imprisonment or a fine and the agency contract (contrat d'agent commercial) may be redesignated a commercial representation contract (contrat de représentant commercial). In Spain too, commercial agents and representatives are required to register with the relevant professional body, though failure to register does not result in the contract being void. In the Netherlands, a self-employed commercial agent or representative is considered to be an undertaking and has, as such, to be entered in the commercial register (Article 1(1) of the Handelsregisterwet (Law on the commercial register)). Failure to register may result in a fine or imprisonment, but that does not affect the validity of the contract between the commercial agent and the principal. In Austria, the United Kingdom, Ireland, Finland and Denmark, commercial agents and representatives do not have to be entered in any kind of register. In Sweden, the obligation to register applies only to commercial agents and representatives involved in buying and selling immovable property, and failure to register may result in imprisonment or a fine. Portugal has a public register in which certain activities and certain documents or contracts, such as, for example, agency or commercial representation contracts, have to be recorded if they are in writing. Failure to register does not affect the validity of the contract which remains fully effective.
(18) - Opinion of 23 and 24 November 1977 on the proposal for a Council Directive to coordinate the laws of the Member States relating to (self-employed) commercial agents (OJ 1978 C 59, p. 31), paragraph 2.3.6.
(19) - See, for example, Case C-106/89 Marleasing, cited in footnote 13, paragraph 8; Case C-421/92 Habermann-Beltermann, cited in footnote 13, paragraph 10; Case C-472/93 Spano, cited in footnote 13, paragraph 17; and Case C-91/92 Faccini Dori, cited in footnote 12, paragraph 26.
(20) - See point 8 of the Opinion of Advocate General Van Gerven in Case C-106/89 Marleasing, cited in footnote 13 above.
(21) - See Sofia Koukouli-Spiliotopoulou: `Apotelesmatikí dikastikí prostasía kai kirósis giá tis paravásis tou kinotikoú dikaíou' (Effective legal protection and sanctions for infringement of Community law), an article that appeared in the periodical Ellinikí Dikaiosíni, February 1997 (pp. 351-389), § 28, p. 328 et seq.
(22) - As pointed out by the Commission in its written observations, that was the argument put forward by Yokohama in its defence before the national court on 1 October 1996.
(23) - The Commission also points out that it would not appear difficult to interpret the Italian law in a manner compatible with the Directive in so far as the Italian legal system recognises the occupation of `procacciatori di affari' (commercial travellers) who are not required to be entered in any register, even though theirs is an occupation that bears clear similarities to that of commercial agents, the main difference being that the relationship with the principal is not stable as it is in agency contracts. The Commission also points out that Italian legal literature recognises that since Law No 204 of 1985 did not incorporate the provisions of Article 2 of Law No 326 of 1968, in which reference is made to the prohibition against concluding an agency contract with a commercial agent who is not registered, and abrogated the provisions relating to the imposition of criminal sanctions if that prohibition was infringed, it was intended to make the system provided for under the earlier legislation less severe.