Opinion of Mr Advocate General Mancini delivered on 19 November 1987. - Criminal proceedings against Graziano Mattiazzo. - Reference for a preliminary ruling: Pretura di Montagnana - Italy. - Interpretation of a directive - Concept of "public officials" and "persons responsible for a public service". - Case 422/85.



European Court reports 1987 Page 05413



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . In a judgment of 7 April 1987 in Case 166/85 Bullo and Bonivento (( 1987 )) ECR 1583, the Second Chamber of the Court gave a preliminary ruling to the effect that "the classification of employees of credit institutions as 'public officials' or as 'persons responsible for the public service' for the purposes of the application of the criminal law of a Member State is not contrary to the provisions or the objective of Council Directive 77/780/EEC of 12 December 1977 on the coordination of laws, regulations and administrative provisions relating to the taking up and pursuit of the business of credit institutions" ( Official Journal, L 322, 17.12.1977, p . 30 ).

It will be recalled that the Member State in question was Italy and that the Court had been requested to interpret the aforesaid Community directive by the Corte d' Appello ( Court of Appeal ), Venice . However, before the judgment of the Court was given, the Pretore ( Magistrate ), Montagnana, had referred to the Court, by order of 25 October 1985 in criminal proceedings brought against Graziano Mattiazzo, the manager of a bank in that place, the following questions :

"( 1 ) Under Directive 77/780/EEC regulating the taking up of the business of credit institutions, was the receipt of savings intended to constitute merely a business activity, governed as such by the fundamental freedoms guaranteed by the Treaties, or were the requirements of the protection of savings and of individual savers regarded as being of paramount importance and the activity of credit institutions thus treated as an activity pursued in the public interest of the Community, with all the consequences attaching thereto in terms of the differences in the classification of that activity in the legal systems of the Member States?

( 2 ) Is the concept of authorization defined in Article 1 of the directive intended to refer to an instrument which is issued in any form by the authorities of the Member States but which in any event establishes the legal status of, or confers a legal status upon, the credit institution concerned ( precisely on account of the fact that the activity carried on by that institution is in the public interest ) or is that concept intended to refer to any instrument authorizing in general terms the pursuit of a business activity, which - as a reflection of the freedom to engage in economic activity - already forms an integral part of the body of rights vested in every individual under the legal systems of the Member States .

( 3 ) In the light of the objectives of the directive set out in the preamble thereto, is national legislation compatible with the aims pursued by the Community where it limits, restricts or confers a particular status on anybody carrying on business as a credit institution on account of the fact that the activity carried on constitutes a public service?"

In view of the close analogy between the issues thus raised and that referred to by the Corte d' Appello, Venice, the Court' s Registry requested the Pretore to inform it whether, after judgment had been given in Case 166/85 ( cited above ), he intended to maintain his request for a preliminary ruling . The reply, dated 14 April 1987, was affirmative . The Pretore stated that "Since the arguments on which the reference is based are in part different from those ( already ) examined by the Court ..., it is conceivable that the decision in this case may be different" from the judgment in Bullo and Bonivento .

2 . In my view, the possibility referred to by the Italian magistrate cannot come about . First of all, I would recall that in the opinion which I delivered on 22 January 1987 in Case 166/85, I stated as follows : Directive 77/780 "contains no provision relating, even remotely or indirectly, to the employment relationship and the status of employees of credit institutions; nor does the result intended to be achieved by the directive - the free pursuit of the business of credit institutions throughout the Community - entail the exemption of those institutions from the duty to comply with the criminal-law provisions in force in the Member State of establishment, at least unless those provisions are drafted or applied in a discriminatory manner . ... I am aware that the classification of employees of private banks as persons responsible for a public service is the subject of lively debate in the banking industry and in Italian legal circles and I personally regard as persuasive the arguments of those who consider it to be anachronistic or, in any event, excessive in the light of today' s requirements for the protection of credit . However, the fact remains that the issue is purely one of domestic law and its resolution is a matter solely for the national legislature ."

Those views were confirmed no less unequivocally by the judgment of 7 April 1987 . The Court stated that Directive 77/780 does not detract from "the Member States' power to lay down rules on the legal status of credit institutions and, in particular, does not put them under a duty to require that the duties and powers given by credit institutions to their employees should be of a private nature ".

That is not all . On the basis of the Court' s interpretation, the Joint Criminal Chambers of the Italian Court of Cassation recently confirmed that the status of bank employees is determined solely by reference to national law and that for that purpose "the correct approach is to undertake a far-reaching review of the law so as to reconcile ... the requirements of the protection of the public interest in the credit sector with the requirements connected with the entrepreneurial nature of any type of credit institution" ( judgment of 23 May 1987 in Tuzet and Borgatti, pp . 27 and 28 of the typescript supplied to the Court by the Italian avvocato dello Stato at the hearing on 28 October 1987 ). That being said, the Court of Cassation decided that - as a result of the recent Presidential Decree, No 350 of 26 June 1985, by which Directive 77/780 was implemented - bank employees could not, when carrying out their normal activities concerned the receipt of savings and the management of credit, be regarded for the purposes of the application of the criminal law as "persons responsible for a public service" ( p . 24 ).

It may therefore be concluded that the doubts raised by the Pretore, Montagnana, are no longer justified even as regards domestic law . At Community level, however, what he wants to know is whether the provisions and purposes of Directive 77/780 prohibit the attribution to bank employees under the law of a Member State of certain legal classification; and that is an issue to which the Court has already provided a solution which remains satisfactory even in connection with different arguments advanced by the Pretore .

On the basis of the foregoing considerations and in the light of the judgment of 7 April 1987 in Case 166/85 Bullo and Bonivento, I propose that the Court should reply to the questions referred to it for a preliminary ruling by the Pretore, Montagnana, by order of 25 October 1985 in criminal proceedings against Graziano Mattiazzo, as follows :

"Council Directive 77/780 of 12 December 1977 does not detract from the Member States' power to lay down rules on the legal status of credit institutions and does not put them under a duty to require that the duties and powers given by credit institutions to their employees should be of a private nature . In particular, the classification of employees of credit institutions as 'persons responsible for a public service' for the purposes of the application of the criminal law of a Member State is not contrary to the provisions or the objectives of Directive 77/780 . "

(*) Translated from the Italian .