Judgment of the Court (Second Chamber) of 17 December 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



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

++++

APPROXIMATION OF LAWS - CREDIT INSTITUTIONS - DIRECTIVE 77/780 - SCOPE - DETERMINATION OF THE STATUS OF CREDIT INSTITUTIONS AND THE CRIMINAL LIABILITY OF THEIR EMPLOYEES - POWER OF MEMBER STATES

( DIRECTIVE 77/780 )

Summary

DIRECTIVE 77/780 DOES NOT DETRACT FROM THE POWER OF THE MEMBER STATES TO LAY DOWN RULES ON THE LEGAL STATUS OF CREDIT INSTITUTIONS . THE CLASSIFICATION OF EMPLOYEES OF CREDIT INSTITUTIONS AS "PUBLIC OFFICIALS" OR 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 OBJECTIVE OF THAT DIRECTIVE .

Parties

IN CASE 422/85

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE PRETORE DI MONTAGNANA ( MAGISTRATE, MONTAGNANA ) FOR A PRELIMINARY RULING IN THE CRIMINAL PROCEEDINGS PENDING BEFORE HIM AGAINST

GRAZIANO MATTIAZZO

ON THE INTERPRETATION OF COUNCIL DIRECTIVE 77/780/EEC OF 12 DECEMBER 1977 ON THE COORDINATION OF THE LAWS, REGULATIONS AND ADMINISTRATIVE PROVISIONS RELATING TO THE TAKING UP AND PURSUIT OF THE BUSINESS OF CREDIT INSTITUTIONS ( OFFICIAL JOURNAL 1977, L 322, P . 30 ),

THE COURT ( SECOND CHAMBER )

COMPOSED OF : O . DUE, PRESIDENT OF CHAMBER, K . BAHLMANN AND T.F . O' HIGGINS, JUDGES,

ADVOCATE GENERAL : G.F . MANCINI

REGISTRAR : P . HEIM

AFTER CONSIDERING THE OBSERVATIONS SUBMITTED ON BEHALF OF :

THE ITALIAN GOVERNMENT, BY LUIGI FERRARI BRAVO, HEAD OF THE DEPARTMENT FOR CONTENTIOUS DIPLOMATIC AFFAIRS, ASSISTED BY PIER GIORGIO FERRI, AVVOCATO DELLO STATO,

THE COMMISSION OF THE EUROPEAN COMMUNITIES, BY GUIDO BERARDIS, A MEMBER OF ITS LEGAL DEPARTMENT, ASSISTED BY SILVIO PIERI, AN ITALIAN CIVIL SERVANT SECONDED TO THE COMMISSION OF THE EUROPEAN COMMUNITIES UNDER THE EXCHANGE SCHEME FOR COMMUNITY AND NATIONAL CIVIL SERVANTS,

HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 28 OCTOBER 1987,

AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 19 NOVEMBER 1987,

GIVES THE FOLLOWING

JUDGMENT

Grounds

1 BY AN ORDER OF 25 OCTOBER 1985, WHICH WAS RECEIVED AT THE COURT ON 16 DECEMBER 1985, THE PRETORE DI MONTAGNANA REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY THREE QUESTIONS ON THE INTERPRETATION OF COUNCIL DIRECTIVE 77/780/EEC OF 12 DECEMBER 1977 ON THE COORDINATION OF THE LAWS, REGULATIONS AND ADMINISTRATIVE PROVISIONS RELATING TO THE TAKING UP AND PURSUIT OF THE BUSINESS OF CREDIT INSTITUTIONS ( OFFICIAL JOURNAL 1977, L 322, P . 30 ).

2 THOSE QUESTIONS WERE RAISED IN THE COURSE OF CRIMINAL PROCEEDINGS BROUGHT AGAINST GRAZIANO MATTIAZZO, WHO IS ACCUSED, IN HIS CAPACITY AS MANAGER OF A BRANCH OF THE BANCA POPOLARE DI PADOVA E TREVISO AND THEREFORE AS A PERSON RESPONSIBLE FOR A PUBLIC SERVICE WITHIN THE MEANING OF ARTICLE 358 OF THE ITALIAN PENAL CODE, OF HAVING FAILED, CONTRARY TO ARTICLE 362 OF THE PENAL CODE, TO NOTIFY THE JUDICIAL AUTHORITIES OF THE FACT THAT A BANK CHEQUE HAD BEEN ISSUED WITHOUT PROVISION, ALTHOUGH THAT FACT HAD COME TO HIS ATTENTION IN THE EXERCISE OF HIS DUTIES OR AS A RESULT THEREOF . THAT CHARGE PRESUPPOSES THAT THE PROVISION OF BANKING FACILITIES CONSTITUTES A PUBLIC SERVICE ACTIVITY IN ITALY .

3 THE PRETORE CONSIDERED THAT THE PROCEEDINGS RAISED QUESTIONS OF INTERPRETATION OF COMMUNITY LAW; HE THEREFORE STAYED THE PROCEEDINGS UNTIL THE COURT SHOULD HAVE GIVEN A PRELIMINARY RULING ON 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 INSTITUITION 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?"

4 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A FULLER ACCOUNT OF THE FACTS OF THE CASE, THE PROCEDURE AND THE OBSERVATIONS SUBMITTED TO THE COURT, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .

5 A QUESTION REFERRED BY THE CORTE D' APPELLO, VENICE, CONCERNING THE SAME NATIONAL LEGISLATION AND RAISING ISSUES SIMILAR TO THOSE IN THIS CASE WAS DEALT WITH IN THE JUDGMENT OF THE COURT OF 7 APRIL 1987 IN CASE 166/85 BULLO AND BONIVENTO (( 1987 )) ECR 1583 ).

6 IN THAT JUDGMENT THE COURT POINTED OUT THAT DIRECTIVE 77/780 CONTAINS NO PROVISION GOVERNING THE STATUS WHICH IS TO BE GIVEN TO CREDIT INSTITUTIONS UNDER THE NATIONAL LAW OF THE MEMBER STATES AND THEREFORE DOES NOT DETRACT FROM THE MEMBER STATES' POWER TO LAY DOWN RULES ON THE LEGAL STATUS OF SUCH INSTITUTIONS . THE COURT HELD THAT THE CLASSIFICATION OF EMPLOYEES OF CREDIT INSTITUTIONS AS "PUBLIC OFFICIALS" OR 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 OBJECTIVE OF DIRECTIVE 77/780 .

7 THE PRETORE DI MONTAGNANA WAS INFORMED OF THAT JUDGMENT, BUT STATED TO THE COURT THAT HE DID NOT WISH TO WITHDRAW HIS REQUEST FOR A PRELIMINARY RULING .

8 CONSIDERATION OF THIS CASE HAS NOT DISCLOSED ANY FACTOR NOT PRESENT IN CASE 166/85 . CONSEQUENTLY, IT IS SUFFICIENT TO REFER TO THE JUDGMENT OF 7 APRIL 1987, A COPY OF WHICH IS ATTACHED TO THIS JUDGMENT .

9 THE ANSWER TO THE QUESTIONS REFERRED BY THE PRETORE DI MONTAGNANA MUST THEREFORE BE THAT DIRECTIVE 77/780 DOES NOT DETRACT FROM THE POWER OF THE MEMBER STATES TO LAY DOWN RULES ON THE LEGAL STATUS OF CREDIT INSTITUTIONS . THE CLASSIFICATION OF EMPLOYEES OF CREDIT INSTITUTIONS AS "PUBLIC OFFICIALS" OR 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 OBJECTIVE OF DIRECTIVE 77/780 .

Decision on costs

COSTS

10 THE COSTS INCURRED BY THE ITALIAN GOVERNMENT AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE . SINCE THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED, IN THE NATURE OF A STEP IN THE ACTION BEFORE THE NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

Operative part

ON THOSE GROUNDS,

THE COURT ( SECOND CHAMBER ),

IN ANSWER TO THE QUESTIONS SUBMITTED TO IT BY THE PRETORE DI MONTAGNANA BY ORDER OF 25 OCTOBER 1985, HEREBY RULES :

DIRECTIVE 77/780 DOES NOT DETRACT FROM THE POWER OF THE MEMBER STATES TO LAY DOWN RULES ON THE LEGAL STATUS OF CREDIT INSTITUTIONS . THE CLASSIFICATION OF EMPLOYEES OF CREDIT INSTITUTIONS AS "PUBLIC OFFICIALS" OR 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 OBJECTIVE OF DIRECTIVE 77/780 .