OPINION OF ADVOCATE GENERAL

WAHL

delivered on 15 May 2013 ( 1 )

Case C‑184/12

United Antwerp Maritime Agencies (Unamar) NV

v

Navigation Maritime Bulgare

(Request for a preliminary ruling from the Hof van Cassatie (Belgium))

‛Convention on the law applicable to contractual obligations — Freedom of contract — Limits — Interference of the special mandatory rules of law of the forum — Commercial agency contract’

I – Introduction

1. This case concerns the interpretation of Articles 3 and 7(2) of the Convention on the law applicable to contractual obligations opened for signature in Rome on 19 June 1980 ( 2 ) (‘the Rome Convention’), in conjunction with 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. ( 3 )

2. The request for a preliminary ruling in this case has been made by the Hof van Cassatie in proceedings between United Antwerp Maritime Agencies (Unamar) NV (‘Unamar’), a company incorporated in Belgium, and Navigation Maritime Bulgare (‘NMB’), a company incorporated in Bulgaria, concerning payment of various forms of compensation owed as a consequence of the termination, by NMB, of the commercial agency contract which until then had bound the two companies. In the subsequent legal proceedings, the question was raised, inter alia, whether the Belgian court could apply to the contract the mandatory provisions of the forum despite the existence of an arbitration clause designating the Chamber of commerce and industry in Sofia (Bulgaria) and expressly providing that Bulgarian law was to be applied to the contract.

3. The Court is more particularly requested to specify the circumstances in which the national court may, pursuant to Article 7(2) of the Rome Convention, disapply the relevant provisions of the law of a Member State applicable to a contract in accordance with the intentions of the parties (lex contractus) in favour of the mandatory provisions of the law of the forum. It is more specifically asked for guidance for the purpose of determining whether the law of a Member State of the European Union, which, while correctly transposing a European directive, goes beyond the protection offered by the directive, may impose that wider protection if the lex contractus is the law of another Member State of the European Union which has also transposed that directive correctly.

II – Legal framework

A – Rome Convention

4. Article 3 of the Convention, entitled ‘Freedom of choice’, provides: ‘1. A contract shall be governed by the law chosen by the parties. The choice must be expressed or demonstrated with reasonable certainty by the terms of the contract or the circumstances of the case. By their choice the parties can select the law applicable to the whole or to part only of the contract. …’

5. Article 7(2) of the Convention, entitled ‘Mandatory rules’, provides that ‘[n]othing in this Convention shall restrict the application of the rules of the law of the forum in a situation where they are mandatory irrespective of the law otherwise applicable to the contract’.

B – Directive 86/653

6. In the second recital of the preamble to Directive 86/653 it is stated that the Directive was adopted in the light of the fact that ‘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 ...’.

7. Article 1(2) of that directive states: ‘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 and conclude such transactions on behalf of and in the name of that principal.’

8. Article 17(1) of the directive provides: ‘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.’

C – Belgian law

9. Article 1 of the Law of 13 April 1995 on commercial agency contracts ( 4 ) (‘the Law on commercial agency contracts’) provides inter alia that ‘[a]n agency contract is an agreement by which one of the parties, the commercial agent, has the continuing authority, in return for remuneration, of the other party, the principal, without being subject to the control of the latter, to negotiate and possibly conclude transactions in the name and on behalf of the principal’.

10. Article 18(1) and (3) of the Law on commercial agency contracts is worded as follows: ‘1. Where a commercial agency contract is concluded for an indefinite period or for a fixed term with the possibility of early termination, either party shall be entitled to terminate the contract by notice. … 3. A party terminating the contract without referring to one of the grounds set out in Article 19(1), or without giving the notice laid down in the second subparagraph of paragraph 1, shall be obliged to pay to the other party compensation equivalent to the payment that would ordinarily be made for the duration of the notice period or for the remainder thereof. ...’ .

11. Article 20 of the Law on commercial agency contracts provides as follows: ‘After termination of the contract the commercial agent shall be entitled to a goodwill indemnity if he has brought the principal new customers or if he has significantly increased the volume of business with existing customers, in so far as the principal can continue to derive substantial benefits therefrom.’

12. Article 21 of the Law on commercial agency contracts provides: ‘In so far as the commercial agent is entitled to the indemnity referred to in Article 20 and the amount of such indemnity does not fully indemnify the agent for the loss actually incurred, the commercial agent may, subject to proof of the actual extent of the loss claimed, obtain damages, in addition to that indemnity, in the sum of the difference between the amount of the loss actually incurred and the amount of that indemnity.’

13. Article 27 of the Law on commercial agency contracts states: ‘Without prejudice to the application of international conventions to which Belgium is a party, any activity of a commercial agent whose principal place of business is in Belgium shall be governed by Belgian law and shall be subject to the jurisdiction of the Belgian courts.’

III – Facts, procedure and the question referred

14. In 2005, Unamar and NMB concluded a commercial agency contract for the operation of NMB’s container liner shipping service. The contract provided that it was to be governed by Bulgarian law and that any dispute relating to the contract was to be resolved by the arbitration chamber of the Chamber of commerce and industry in Sofia.

15. By a contract of 22 December 2008, that commercial agency contract was extended for a final time until 31 March 2009. Unamar then took the view that the contract had been unlawfully terminated and, on 25 February 2009, brought an action before the Rechtbank van koophandel te Antwerpen for payment of various forms of compensation provided for under the Law on commercial agency contracts.

16. On 13 March 2009, NMB in turn brought an action against Unamar before the Rechtbank van koophandel te Antwerpen for payment of outstanding freight in the amount of EUR 327 207.87.

17. After joining the two cases, the rechtbank van koophandel te Antwerpen, by judgment of 12 May 2009, ruled that NMB’s plea regarding lack of jurisdiction on the ground of an arbitration clause was unfounded. That court considered, in essence, first, that Article 27 of the Law on commercial agency contracts was a directly applicable unilateral conflict-of-laws rule, which precluded the choice of foreign law, second, that that law must be applied even though it did not form part of Belgian international public policy, third, that any disputes falling within the scope of that law are consequently not subject to arbitration unless Belgian law or an equivalent foreign law has been declared applicable by the agency contract, and, finally, that, since the contract at issue was governed by Bulgarian law, and it was not apparent that, under Bulgarian law, the provisions of Directive 86/653 also applied to commercial agents who had arranged contracts for the provision of services, NMB’s pleas regarding lack of jurisdiction had no legal basis.

18. On 24 June 2009, NMB appealed against that decision to the hof van beroep te Antwerpen. By judgment of 23 December 2010, that court ordered Unamar to pay the balance in respect of freight in the amount of EUR 77 207,87 plus interest for late payment and costs. The Hof van beroep te Antwerpen also held that NMB’s plea regarding lack of jurisdiction was well founded and declared that it had no jurisdiction to rule on Unamar’s claim for payment of compensation. According to that court, the Law on commercial agency contracts did not form part of public policy or of Belgian international public policy. That court also held that, under Article 7 of the Rome Convention, no effect was to be given to the special mandatory provisions of that law. It declared that the Bulgarian law chosen by the parties also gives Unamar, as NMB’s shipping agent, the minimum protection provided by Directive 86/653. In those circumstances, the principle of freedom of contract must take precedence over the law of another Member State of the European Union, in this case the Kingdom of Belgium.

19. On 27 May 2011, Unamar brought an appeal in cassation against that judgment before the Hof van Cassatie which decided to stay the proceedings and refer the following question to the Court for a preliminary ruling: ‘Having regard ... to the classification under Belgian law of the provisions at issue in this case (Articles 18, 20 and 21 of the Belgian Law [on commercial agency contracts]) as special mandatory rules of law within the terms of Article 7(2) of the Rome Convention, must Articles 3 and 7(2) of [that Convention], read, as appropriate, in conjunction with [Directive 86/653], be interpreted as meaning that special mandatory rules of law of the forum that offer wider protection than the minimum laid down by Directive [86/653] may be applied to the contract, even if it appears that the law applicable to the contract is the law of another Member State of the European Union in which the minimum protection provided by Directive 86/653 has also been implemented?’

20. Written observations have been submitted by NMB, the Belgian Government and by the European Commission. No request for a hearing has been lodged.

IV – Analysis

A – Introductory remarks

21. Before addressing the substance of the question referred for a preliminary ruling, I would like to provide some clarification which I consider necessary in order to restate the subject-matter of the dispute and to remove any uncertainties as regards the scope of this reference for a preliminary ruling.

22. I would point out that, although, in the main proceedings, there had been discussion not only regarding the law applicable to the contract but also as to whether the Belgian courts actually had jurisdiction to hear the case between Unamar and NMB, the Court is requested only to determine the law applicable under the Rome Convention. That limitation of the subject-matter of the question, surprising as it may seem prima facie, ( 5 ) none the less does not render this request for a preliminary ruling irrelevant, ( 6 ) since the problem of determining, in accordance with the Rome Convention, the law applicable to the commercial agency contract concluded between Unamar and NMB lies at the heart of the main proceedings.

23. In the present case, the question of the applicable law and that of the validity of the arbitration clause designating the Chamber of commerce and industry in Sofia are closely linked. The national court thus referred to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, signed in New York on 10 June 1958, ( 7 ) Article II(3) of which provides that ‘[i]t is the court of a Contracting State, when seised of an action in a matter in respect of which the parties have made an arbitration agreement, that will, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed’. ( 8 ) It concluded that an arbitration clause which is valid under a foreign law may be rejected on the basis of a provision of the law of the forum under which the dispute is not subject to arbitration. The referring court states that it is apparent from the legislative history of the Law on commercial agency contracts that Articles 18, 20 and 21 of that law must be regarded as mandatory rules of law. It is therefore clear from the court’s reasoning that there is a close link between the determination of the law applicable to the contract and the possibility the court has of rejecting the clause and, accordingly, declaring that it has jurisdiction.

B – Response to the question referred

24. The Court is called upon, in essence, to determine whether the law of a Member State of the European Union, which transposes an EU directive while offering the opportunity to ensure wider protection than that provided for by the directive, may impose that wider protection in accordance with Article 7(2) of the Rome Convention, even where the lex contractus is the law of another Member State of the European Union which has also correctly transposed that directive.

25. In the present case, it is apparent from the information submitted to the Court that the Kingdom of Belgium and the Republic of Bulgaria both transposed Directive 86/653 correctly. In contrast to what has been stated with regard to the Law on commercial agency contracts, very little information has been provided concerning the wording of the implementing measures adopted in Bulgaria. ( 9 ) However, I think that the parties before the Court both mention that the protection offered by the Belgian legislation goes beyond that provided by that directive, not only because it has a wider scope but also because it provides that, if a contract is terminated, the commercial agent is entitled, cumulatively, to an indemnity and to compensation for the loss incurred.

26. It is therefore necessary to provide some clarification as to the circumstances in which the provisions of Belgian law, which constitutes the lex contractus, may, in the context of the main proceedings, be rejected in favour of the mandatory rules of the Law on commercial agency contracts.

27. For that purpose, I think it is appropriate, first, to clarify a number of details concerning the scope of Article 7(2) of the Rome Convention, interpreted in the light of the conclusions which, in my view, must be drawn from the Court’s case-law. Second, I will examine whether and to what extent the harmonisation of national laws under the secondary legislation of the European Union has an impact on the implementation of that same provision.

1. The scope of Article 7(2) of the Rome Convention in the light of case-law

28. It should be pointed out, first of all, that, in a situation such as that in the main proceedings, in which the parties have expressed their choice for the application of a given law to the contract as provided in Article 3(1) of the Rome Convention, that law should, as a rule, in accordance with the principle of freedom of contract laid down in that article, be applied.

29. In the process of determining the applicable law, as laid down by the Rome Convention, the principle of freedom of contract may, however, be qualified in two ways: on the one hand, by the development of rules specific to certain contracts where it appears necessary to protect the weaker party (consumer agreements, contracts of employment) – a factor which is irrelevant in the present case – and, on the other hand, by the interference, under principles traditionally recognised in private international law, but also in the law of the Member States, of specific provisions. These include the intervention, in accordance with the heading ( 10 ) of Article 7 of the Rome Convention, of mandatory rules. This latter intervention varies according to whether it is mandatory rules contained in a foreign law with which the present situation has a close connection (paragraph 1) or, as in the present case, mandatory rules of the law of the forum (paragraph 2) which are at issue.

30. As regards the mandatory rules of the forum, I would point out that Article 7(2) of the Rome Convention, although it implies, from a functional point of view, that the mandatory rules of the forum must take precedence over any other provisions, ( 11 ) gives no meaningful definition of what is meant by mandatory rules. That provision merely states, without laying down further conditions, that the application of the rules of the law of the forum cannot be restricted ‘in a situation where they are mandatory irrespective of the law otherwise applicable to the contract’. The Giuliano and Lagarde Report on the Rome Convention does not give much more guidance on this point. ( 12 )

31. In my view, it is apparent from these few facts that, according to the principles generally enshrined in private international law, the national authorities have a wide discretion to decide in which areas and on what grounds a provision of the law of the forum is considered mandatory, justifying the rejection of the relevant provisions of the law chosen by the parties. Article 7(2) of the Rome Convention excludes, in principle, any power of the court over the possibility of applying the mandatory rules of the forum, since the contract on which it has to give a ruling, even if it is subject to another law, falls within the scope which the mandatory rules have themselves defined. ( 13 )

32. That conclusion is not affected by the definition of mandatory provisions used by the Court in Arblade and Others ( 14 ) or in Commission v Luxembourg, ( 15 ) a definition which has to a large extent been reproduced in Article 9 of the Rome I Regulation, entitled ‘Overriding mandatory provisions’ ( 16 ) and it must be stated that that provision corresponds, in essence, to Article 7 of the Rome Convention.

33. I would recall that, in Arblade and Others, the Court held that the expression ‘public-order legislation’ must be understood as applying 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’. ( 17 ) To the same effect, I would point out that, in Commission v Luxembourg, it was in connection with the examination of the public policy exception, as a derogation from the fundamental principle of freedom to provide services, that the concept of public-order legislation identified in Arblade and Others was reproduced. ( 18 )

34. Even if the Court, by those judgments, intended to identify an autonomous European concept of overriding mandatory provisions, which, in spite of doubts which may have been expressed in that regard, ( 19 ) seems to me to be confirmed by the definition of overriding mandatory provisions adopted thereafter in the Rome I Regulation, the fact remains that the classification of a given national provision as an overriding mandatory provision must be made on a case-by-case basis according to the considerations of public interest which prompted its adoption.

35. In my view, it should to a large extent be left to the national legislature to accord a mandatory nature to national provisions: these are rules enacted by the State with the declared or undeclared aim of protecting interests which it deems essential. To put it another way, the Member States have the power to determine specifically when public interests, understood in the broad sense, ( 20 ) are affected, which justifies according certain provisions a mandatory nature. In order to classify a national provision as an overriding mandatory rule, the national court will have to take into account both the wording and the general scheme of the act of which it forms part. ( 21 )

36. However, in the light of the obligations imposed on the Member States under the principle of the primacy of EU law, the opportunity given to the national authorities to reject the lex contractus in favour of the lex fori, in accordance with Article 7(2) of the Rome Convention, is still not unlimited.

37. I think it should be pointed out that relying on the mandatory rules of the forum, pursuant to Article 7(2) of the Rome Convention, does not exempt the Member States from their obligation to ensure compliance with the provisions of the Treaty; if it did, the primacy and uniform application of EU law would be undermined. ( 22 ) In particular, those rules must not have the effect of constituting an unjustified impediment to the rights and freedoms arising under the Treaties.

2. Examination of the impact of the harmonisation of national legislation deriving from the adoption of Directive 86/653 on the possibility, under Article 7(2) of the Rome Convention, of applying the special mandatory rules of the forum

38. As I have mentioned in the previous section, subject to observance of the principle of the primacy of EU law, the national authorities enjoy a wide discretion to determine for what reasons and in what areas they wish to make certain rules mandatory, thus justifying the fact that the court of the forum is able to apply them, pursuant to Article 7(2) of the Rome Convention, irrespective of the law applicable to the contract.

39. However, the question arises whether the harmonisation of national legislation brought about by an EU directive may have an impact on the effectiveness of the mandatory provisions of the forum in relation to the laws of other Member States where, as in the present case, national laws adopted to implement that directive are at issue.

40. I consider that the reply to be given to this question will not necessarily be the same, depending on whether one is faced with a minimum or full harmonisation measure.

41. If the coordination of national laws resulting from the directive provides minimum protection, the Member States may accordingly maintain or adopt stricter measures in that regard. ( 23 ) The national authorities may therefore, having regard to the discretion left to them, extend both the scope and the level of the protection provided for by that directive in order to protect interests which they consider to be fundamental. In such a situation, there may be significant differences between the national laws adopted to implement an EU directive. In my view, we cannot rule out the granting of mandatory status to the national provisions extending both the scope and the level of minimum protection laid down by the directive or the possibility that they may therefore supplant, pursuant to Article 7(2) of the Rome Convention, the provisions of the law designated by the parties, even if that law is the law of a Member State which has correctly implemented the directive. I would recall that the Rome Convention allows the Member States, a priori and subject, of course, to observance of the primacy of EU law, a wide discretion to determine the provisions of their respective legislations which must be categorised as mandatory.

42. On the other hand, if the directive introduces full harmonisation of national legislation, it must result in the adoption of national laws laying down a scope and level of protection which, if not identical, are equivalent. Such harmonisation means, by its very nature, that situations on which the court has to rule must be assessed only in the light of the criteria laid down by the European Union legislature. ( 24 ) In those circumstances, it cannot therefore be accepted that the mandatory provisions of one Member State may oust, by application of Article 7(2) of the Rome Convention, the provisions of the law of another Member State.

43. Moreover, from the point of view of the principles recognised in private international law, it may be assumed that the protective aim of mandatory provisions is, after all, achieved by the comprehensive harmonisation resulting from the EU directive. As I have pointed out above, the power of the competent authorities to apply the rules of the law of the forum, pursuant to Article 7(2) of the Rome Convention, read inter alia in the light of Arblade and Others, and of the definition given in Article 9(1) of the Rome I Regulation, is, to a large extent, subject to the intention of the national legislature to protect interests which it considers important. In the case of national legislation transposing a directive which has introduced full harmonisation, the interests for which protection is sought are, in effect, covered by the resulting harmonisation of laws. Therefore, it should not be possible in such a situation to reject the lex contractus in favour of the law of the forum.

44. As I will explain below, Directive 86/653 provides for minimum harmonisation ( 25 ) of the national legislation of the Member States which excludes inter alia from its scope self-employed commercial agents operating in the field of the provision of services and affords agents only minimum protection in the event of termination of the agency contract (a). It follows that, if the national provisions adopted by the Member State of the forum, in order to implement that directive, go beyond the scope and minimum protection laid down in the directive – a situation which appears to correspond to that of the main proceedings – they may be applied instead of the law of another Member State designated by the parties to the contract (b).

(a) Directive 86/653 provides for minimum harmonisation which, first, excludes inter alia from its scope self-employed commercial agents operating in the field of the provision of services and, second, affords only minimum protection to commercial agents in the event of termination of an agency contract

45. It is apparent both from the order for reference and from the observations submitted to the Court that the commercial agency contract which is the subject of the main proceedings was a contract concluded between Unamar and NMB, which related to shipping operations using container liners belonging to NMB, that is, a contract for the provision of services. It is also apparent from the order for reference that the cause of the dispute in the main proceedings was the termination of the agency contract between those two companies and Unamar’s subsequent action for payment of compensation provided for under the Law on commercial agency contracts.

46. As regards, first, the scope of the area of activities covered by the protection offered, under Directive 86/653, to commercial agents, I would observe that the Belgian Government, without formally contesting the applicability of that directive to the present case, which concerns an agency contract for the operation of a shipping service, stated that the Law on commercial agency contracts had a broader scope than Directive 86/653, since the directive only refers, in Article 1(2), to the activities of an intermediary in the sale or purchase of goods.

47. To the same effect, the Commission stated that the Belgian legislature had chosen to apply the protection regime for self-employed commercial agents laid down by that directive not only to self-employed intermediaries entrusted with ‘the sale or purchase of goods’ (Article 1(2) of Directive 86/653), but also to self-employed commercial agents entrusted with the negotiation and possible conclusion of transactions (Article 1 of the Law on commercial agency contracts), which may include the provision of services. However, the Commission states that in all probability the Bulgarian legislation does not apply to the provision of services. The Commission nevertheless considers that the order for reference does not permit any definitive conclusion to be drawn concerning the nature of the contract to which this case refers and that it is working based on the assumption that it related mainly to the negotiation of the sale and purchase of goods.

48. I, for my part, consider that the Law on commercial agency contracts goes beyond the mere implementation of Directive 86/653. A comparison of their provisions clearly shows, in my view, that the Belgian legislature intended to extend the protection afforded by that directive to all self-employed commercial agents, including those who take part in operations relating to services. ( 26 ) That intention to extend the substantive scope of the protection afforded by Directive 86/653 can probably be explained by the fact that the Belgian legislature wished, as well as to implement that directive, to create a relatively comprehensive status for self-employed commercial agents on the basis inter alia of the Benelux Convention and the rules hitherto applicable to employed commercial representatives. ( 27 )

49. In my view, there is hardly any doubt that Directive 86/653 is to be interpreted as meaning that its scope does not include intermediaries entrusted with negotiating service contracts. As the Court has already held, Article 1(2) of Directive 86/653 specifies the concept of ‘commercial agent’ by limiting it to clearly defined situations. ( 28 ) That provision classifies as a commercial agent 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 the principal. That directive does not apply therefore to self-employed intermediaries entrusted with negotiating service contracts. Moreover, and as the Court has also mentioned, ( 29 ) I would point out that references to ‘goods’ which are the subject of agency contracts are also contained in Article 4(2)(a), Article 6(1) and Article 20(2)(b) of Directive 86/653.

50. This interpretation derived from the wording of Directive 86/653 is confirmed by an examination of the legislative history of the directive. The Commission’s first proposal for a directive in that area ( 30 ) covers all ‘commercial transactions’, namely goods and services (see Articles 2, 7(1) and (2), 8 and 10(2) of that proposal). It is clear from a comparison of that proposal for a directive with the text of Directive 86/653 ultimately adopted by the Council that significant amendments were made, consisting in limiting the activities of the agents concerned to transactions involving the sale or purchase of goods, removing inter alia any reference to services. ( 31 )

51. The extension by the national legislation, in this case the Law on commercial agency contracts, of the scope of Directive 86/653 to agents operating in the area of the provision of services has, in my view, a significant consequence. The national provision, in so far as it extends the scope of the directive to services, can no longer be regarded merely as an implementing measure, but becomes a strictly national measure. ( 32 ) Only if the scope of the directive is the same as that of the national legislation may the latter be regarded as an implementing measure.

52. Secondly, as regards the level of protection granted to the commercial agent in the event of termination of the contract which binds him to the principal, Article 17 of Directive 86/653 requires the Member States inter alia to set up a mechanism for compensating the commercial agent after the termination of the contract. That mechanism is designed only to ensure that the commercial agent receives minimum compensation and does not preclude the Member States from providing for additional compensation in their legislations. Although, like most Member States, ( 33 ) the Kingdom of Belgium, when implementing Directive 86/653, expressed a preference for the system of goodwill indemnity, designated in Articles 20 to 23 of the Law on commercial agency contracts by the term ‘indemnité d’éviction’, Article 21 of that Law does not preclude the agent, in certain circumstances, from obtaining damages where the indemnity does not cover all the losses incurred.

(b) The national implementing measures which extend the scope and/or the level of protection under the directive may be regarded as mandatory

53. As regards a law of the forum which, as seems to be the case in the main proceedings, extends not only the scope but also the level of protection afforded to the agent under Directive 86/653, I consider that the court may, theoretically, apply that law, pursuant to Article 7(2) of the Rome Convention, instead of the foreign law designated by the parties to the contract.

54. Although, in the end, it is for the court of the forum alone to determine the provisions of its law which must be considered mandatory in the light of the general scheme and wording of the act of which they form part, I take the view that, in a situation such as the one in the main proceedings, the conditions for applying the mandatory provisions of the forum are fulfilled.

55. In the first place, as regards the assessment of the mandatory nature of a rule of law, I would point out that it must be carried out in the light of its wording and of the general scheme of the act of which it forms part. ( 34 ) The court may therefore recognise a provision as mandatory on the basis of the intention of the legislature ( 35 ) and of the content of the legislation at issue. ( 36 )

56. As is apparent from Article 27 of the Law on commercial agency contracts, the Belgian legislature, going beyond the mere implementation into national law of the provisions of Directive 86/653, which, I would recall, the Court has recognised as mandatory, ( 37 ) expressly stated that, ‘[w]ithout prejudice to the application of international conventions to which Belgium is a party, any activity of a commercial agent whose principal place of business is in Belgium shall be governed by Belgian law and shall be subject to the jurisdiction of the Belgian courts’. Furthermore, all the provisions of the Law on commercial agency contracts may be construed as the expression of the intention of the Belgian legislature to protect an important interest.

57. In the second place, in a case such as that in the main proceedings, in which the law of the forum extends the scope and level of protection of self-employed commercial agents as provided in Directive 86/653, I think it is difficult to detect a restriction or impediment to the rights and freedoms deriving from the Treaties, which would constitute a change in the obligation imposed on the Member States to comply with the provisions of the Treaty. With regard, in particular, to the compensation provided for in the event of termination of the agency contract, I would observe that the Court, while pointing out that the scheme put in place by Article 17 of Directive 86/653 was mandatory, stated that it established only a minimum level of protection. Therefore, although the national legislations cannot introduce rules having the effect that commercial agents are granted a level of indemnity lower than that provided for by that article, they must not be prohibited from providing for a higher level of indemnity. ( 38 ) The national court may therefore, as a rule, apply the mandatory provisions of the law of the forum instead of the provisions of the law of another Member State designated by the parties to the contract.

58. I think it is apparent from these considerations that, if the Member States have decided to draw up national legislation with a more extensive substantive scope and level of protection than that provided for by Directive 86/653, as appears to be the case in the main proceedings, the mandatory provisions of the forum may be applied instead of the foreign law, in accordance with Article 7(2) of the Rome Convention.

59. Furthermore, this conclusion seems to me to be consistent with the approach taken in Ingmar. In that regard, it should be pointed out that that case concerned a dispute in which the parties had expressly chosen to submit the commercial agency contract between them to the law of a non-member country, rather than to the national law transposing Directive 86/653. ( 39 ) In that context, derogation from the principle of freedom of contract, which must usually prevail in contractual matters, was justified by the need to make the contract subject to the provisions of that directive protecting the commercial agent. The Court in fact pointed out that it was essential ‘for the Community legal order that a principal established in a non-member country, whose commercial agent carries on his activity within the Community, cannot evade those provisions by the simple expedient of a choice-of-law clause. The purpose served by the provisions in question requires that they be applied where the situation is closely connected with the Community, in particular where the commercial agent carries on his activity in the territory of a Member State, irrespective of the law by which the parties intended the contract to be governed’. ( 40 )

60. Although it is true, as was pointed out by the Commission and NMB in their observations, that the facts in that case related to a very different situation, in that they concerned a situation in which the parties to the agency contract had opted for the law of a non-member country in which, by definition, the scheme to protect the commercial agent under Directive 86/653 was not applicable, the fact remains that the question raised was set in the context of a significant difference with regard to the conditions which a legal rule must satisfy in order to be classified as a mandatory rule for the purposes of private international law. ( 41 ) In order to reply to it, the Court based its assessment, when examining the purpose and wording of the act at issue, on the premiss that the relevant provisions were necessary for attaining the objectives of the Treaty, ( 42 ) but also on the fact that the purpose of the act was to protect commercial agents. ( 43 ) It may be inferred, by analogy, that, for the purpose of classifying a provision as mandatory, the protective aim of a given rule may be taken into account in the light not only of strictly public interests, but also of the need to take into consideration the particular circumstances of a group of persons.

V – Conclusion

61. In the light of all the foregoing considerations, I propose that the following reply be given to the question referred by the Hof van Cassatie: Articles 3 and 7(2) of the Convention on the law applicable to contractual obligations opened for signature in Rome on 19 June 1980, read in conjunction with 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, are to be interpreted as permitting the application to a contract of the mandatory provisions of the law of the forum which afford commercial agents greater protection than the protection imposed by that directive by virtue of the special interest which the Member State accords to those provisions, even if it appears that the law applicable to the contract is the law of another Member State of the European Union in which that minimum protection provided for by the directive has been implemented.

( 1 ) Original language: French.

( 2 ) OJ 1980 L 266, p. 1. Under Article 1 of the first protocol of 19 December 1988 on the interpretation of the 1980 Convention by the Court of Justice (OJ 1998 C 27, p. 47), which entered into force on 1 August 2004, the Court has jurisdiction to give rulings on references for a preliminary ruling concerning the interpretation of the provisions of that Convention. Furthermore, under Article 2(a) of that Protocol, the Hof van Cassatie (Belgium) may request the Court to give a preliminary ruling on a question raised in a case pending before it and concerning the interpretation of those provisions. As regards the applicability ratione temporis of the Rome Convention, it need only be pointed out that Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ 2008 L 177, p. 6, ‘the Rome I Regulation’), which replaced the Rome Convention, applies only to contracts concluded after 17 December 2009 (see Article 28 of that Regulation). It is clear from the order for reference that the contract at issue in the main proceedings was concluded during 2005 and renewed for a final time on 22 December 2008.

( 3 ) OJ 1986 L 382, p. 17.

( 4 ) Moniteur Belge of 2 June 1995, p. 15621.

( 5 ) It is apparent from the order for reference that the question regarding jurisdiction of the Belgian courts over the main proceedings was fiercely debated by the parties to the main proceedings. More specifically at issue were the validity and effectiveness of the arbitration clause inserted into the agency contract concerned.

( 6 ) In accordance with settled case-law, the Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Case C‑500/10 Belvedere Costruzioni [2012] ECR, paragraph 16, and Case C‑599/10 SAG ELV Slovensko and Others [2012] ECR, paragraph 15 and case-law cited).

( 7 ) United Nations Treaty Series, Volume 330, p. 3.

( 8 ) Emphasis added.

( 9 ) The particulars provided in the observations do not refer specifically to those provisions. According to the information available to me, that implementation was effected by an act adopted and published during 2006, the entry into force of which was determined to be 1 January 2007.

( 10 ) The concept of mandatory rules, which is used to designate the mandatory rules both of foreign law and of the law of the forum, appears only in the title of Article 7 of the Rome Convention and is not, as such, contained in the body of the provision.

( 11 ) Reference to the wording of Article 7 of the Rome Convention shows that the interference of the mandatory rules of the forum, unlike the mandatory rules of a foreign country, is prima facie unconditional. With regard to the mandatory rules of the foreign law, Article 7(1) of that Convention provides that they may intervene only in strictly defined circumstances. Under that provision, ‘effect may be given to the mandatory rules of the law of another country with which the situation has a close connection, if and in so far as, under the law of the latter country, those rules must be applied whatever the law applicable to the contract. In considering whether to give effect to these mandatory rules, regard shall be had to their nature and purpose and to the consequences of their application or non-application’.

( 12 ) In the Report on the Convention on the law applicable to contractual obligations by Mario Giuliano, Professor, University of Milan, and Paul Lagarde, Professor, University of Paris I (OJ 1980 C 282, p. 1), especially pp. 27 and 28, it is merely stated that ‘[t]he origin of this paragraph is found in the concern of certain delegations to safeguard the rules of the law of the forum (notably rules on cartels, competition and restrictive practices, consumer protection and certain rules concerning carriage) which are mandatory in the situation whatever the law applicable to the contract may be. Thus the paragraph merely deals with the application of mandatory rules (lois d’application immediate; leggi di applicazione necessaria. etc) in a different way from paragraph 1’.

( 13 ) See Lagarde, P., ‘Convention de Rome’, Répertoire de droit communautaire, Dalloz, paragraph 106.

( 14 ) Joined Cases C-369/96 and C-376/96 [1999] ECR I-8453.

( 15 ) Case C-319/06 [2008] ECR I-4323.

( 16 ) It is apparent from the Proposal for a Regulation presented by the Commission on 15 December 2005 [COM(2005) 650 final] that the definition of overriding mandatory provisions finally adopted in Article 9 of the Rome I Regulation is actually based on the rule in Arblade and Others. Under Article 9(1), ‘[o]verriding mandatory provisions are provisions the respect for which is regarded as crucial by a country for safeguarding its public interests, such as its political, social or economic organisation, to such an extent that they are applicable to any situation falling within their scope, irrespective of the law otherwise applicable to the contract under this Regulation’.

( 17 ) Arblade and Others, paragraph 30.

( 18 ) Commission v Luxembourg, paragraph 29.

( 19 ) It might be reasonable to take the view that it was only in connection with the assessment of the existence of ‘public-order legislation’, within the meaning of Article 3(1) of the Belgian Civil Code, that the Court had intended to explain, as a preliminary, (see paragraph 30 of the judgment), the meaning of that expression (see, inter alia, Kuipers, J.-J., and Migliorini, S., ‘Qu’est-ce que sont les lois de police ? une querelle franco-allemande après la communautarisation de la Convention de Rome’, European Review of Private Law, 2(2011), p. 199).

( 20 ) In my view, those interests should not be confined only to purely State interests, but may cover any rule considered necessary in order to protect the social, political and economic order. In support of that view, I would point out that, in Case C-381/98 Ingmar [2000] ECR I-9305, paragraph 23, the mandatory nature of the national provisions transposing Directive 86/653 was inferred from the aims of the directive, namely ‘to eliminate restrictions on the carrying-on of the activities of commercial agents, to make the conditions of competition within the Community uniform and to increase the security of commercial transactions’.

( 21 ) See, by analogy, point 73 of the Opinion of Advocate General Léger in Ingmar.

( 22 ) Arblade and Others, paragraph 31.

( 23 ) See in particular, to that effect, Case C‑467/10 Akyüz [2012] ECR, paragraph 53.

( 24 ) See, in particular, Case C-44/01 Pippig Augenoptik [2003] ECR I-3095, paragraph 44, and Case C-159/09 Lidl [2010] ECR I-11761, paragraph 22.

( 25 ) The assessment of the level of harmonisation provided for by a directive must be based on the wording and also the meaning and purpose of the relevant provisions (see, to that effect, Case C-52/00 Commission v France [2002] ECR I-3827, paragraph 16, and Case C-192/04 Lagardère Active Broadcast [2005] ECR I-7199, paragraph 46.

( 26 ) A similar finding had been made, in Case C-3/04 Poseidon Chartering [2006] ECR I-2505, regarding the transposition of that directive into Netherlands law (paragraphs 6 and 12 of the judgment, and also points 5, 11 and 12 of the Opinion of Advocate General Geelhoed in that case). That extension is also enshrined in many Member States, inter alia in the Belgian, German, Spanish, French Italian, Austrian, Luxembourg, Netherlands and Portuguese legislations. On the other hand, in the Danish, Greek, Irish, Finnish, Swedish and British legislations, the subject-matter of agency contracts was initially limited to the sale and purchase of goods (see, for a study of these, Steinmann, T., Kenel, P., and Billotte, I., ‘Le contrat d’agence commerciale en Europe’, LGDJ, 2005, especially pp. 22 to 54).

( 27 ) See, inter alia, Verbraeken, C., and Schoutheete, A., ‘La loi du 13 avril 1995 relative au contrat d’agence commerciale’, Journal des tribunaux, no 5764 (1995), p. 461-469. The authors point out that, by stating that the commercial agent negotiates or concludes ‘transactions’, ‘the legislature has deliberately used a vague term ... so as to give the law as wide a scope as possible and to maintain the parallelism with the status of commercial representative (see, inter alia, documents parlementaires, session ordinaire, 1994-1995, 1750-2, pp. 2 and 3’. Whereas the directive applied only to the sale and purchase of goods, the law also applies to the sale, purchase or rental of real property, to the provision of services or to certain works contracts’. It should be noted that the scope of the Law on commercial agency contracts has been the subject of two further extensions, in 1999 (to cover the insurance, credit institution and regulated securities markets sectors), and subsequently in 2005 (in order to protect the candidates and members of joint consultative bodies).

( 28 ) See, to that effect, the order in Case C-85/03 Mavrona [2004] ECR I-1573, paragraph 15.

( 29 ) See the order in Case C‑449/01 Abbey Life Assurance [2003], paragraphs 4 and 14.

( 30 ) OJ 1977 C 13, p. 2.

( 31 ) See the order in Abbey Life Assurance, paragraph 15.

( 32 ) See, to that effect, Bergé, J.-S., ‘Au-delà du droit communautaire, le droit national’, Revue des contrats, 2006, pp. 873 to 878. Commenting on the judgment in Poseidon, and wondering about the legal nature of the national rule extending the scope of an EU directive, the author considers that a national rule which takes over an EU rule, outside its scope of application, is a strictly national rule. That rule cannot therefore be compared with a classic implementing measure, which has a dual nature:, national, as regards its form, and Community, as regards its purpose. It is therefore only if the directive is meant to be applicable that the national legislation must be regarded as a national implementing measure.

( 33 ) See Steinmann, T., Kenel, P., and Billotte, I., ‘Le contrat d’agence commerciale en Europe’, op. cit., pp. 566 to 611.

( 34 ) See point 35 above.

( 35 ) As regards the Law of 1995, that intention was clearly expressed in the legislative history. Accordingly, it was noted that ‘t]he working group therefore concludes that all the provisions are mandatory except those in which it is expressly mentioned that derogations are possible’ (see documents parlementaires, Sénat, 355-3, S.E. 1991-1992, 14).

( 36 ) See, in particular, Articles 18, 20 and 21 of the Law of 1995.

( 37 ) See Ingmar, paragraphs 20 to 25, and Case C-465/04 Honyvem Informazioni Commerciali [2006] ECR I-2879, paragraph 22.

( 38 ) See, to that effect, Honyvem Informazioni Commerciali, paragraph 28.

( 39 ) Ingmar, paragraph 10.

( 40 ) Ibid., paragraph 25.

( 41 ) Ibid., inter alia paragraphs 16 to 19.

( 42 ) Ibid., paragraphs 23 to 25.

( 43 ) Ibid., paragraph 20.