Judgment of the Court (Second Chamber) of 7 April 1987. - Criminal proceedings against Italo Bullo and Francesco Bonivento. - Reference for a preliminary ruling: Corte d'appello di Venezia - Italy. - Interpretation of a directive - Concept of "public officials" and "persons responsible for a public service". - Case 166/85.



European Court reports 1987 Page 01583



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

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

( COUNCIL DIRECTIVE 77/780 )

Summary

COUNCIL 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 OR THE EXTENT OF ANY CRIMINAL LIABILITY ON THE PART OF THEIR EMPLOYEES . CONSEQUENTLY THE DIRECTIVE 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 .

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 THEREFORE NOT CONTRARY TO THE PROVISIONS OR THE OBJECTIVE OF DIRECTIVE 77/780 .

Parties

IN CASE 166/85

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE CORTE D' APPELLO DI VENEZIA ( COURT OF APPEAL, VENICE ) FOR A PRELIMINARY RULING IN THE CRIMINAL PROCEEDINGS PENDING BEFORE THAT COURT AGAINST

ITALO BULLO AND FRANCESCO BONIVENTO

ON THE INTERPRETATION OF THE FIRST 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 1977, L*322, P . 30 ),

THE COURT ( SECOND CHAMBER )

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

ADVOCATE GENERAL : G.*F . MANCINI

REGISTRAR : S . HACKSPIEL, ADMINISTRATOR,

HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 23 OCTOBER 1986,

AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 22 JANUARY 1987,

GIVES THE FOLLOWING

JUDGMENT

Grounds

1 BY ORDER DATED 15 APRIL 1985, WHICH WAS RECEIVED AT THE COURT ON 31 MAY 1985, THE CORTE D' APPELLO DI VENEZIA ( COURT OF APPEAL OF VENICE ) REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE INTERPRETATION OF THE FIRST 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 1977, L*322, P . 30 ).

2 THE QUESTION WAS RAISED IN CONNECTION WITH CRIMINAL PROCEEDINGS BROUGHT AGAINST MR BULLO AND MR BONIVENTO ( HEREINAFTER REFERRED TO AS "THE ACCUSED "), EMPLOYEES OF BANCA AGRICOLA POPOLARE, A CREDIT INSTITUTION TAKING THE FORM OF A COOPERATIVE SOCIETY WITH LIMITED LIABILITY, AT CAVARZERE ( VENICE ). THE ACCUSED, WHO ARE DESCRIBED AS "PERSONS RESPONSIBLE FOR A PUBLIC SERVICE", WERE FOUND GUILTY BY THE FIRST-INSTANCE CRIMINAL COURT ON A CHARGE OF MISAPPROPRIATING PRIVATE FUNDS, AN OFFENCE UNDER ARTICLE 315 OF THE ITALIAN CRIMINAL CODE . A PUBLIC OFFICIAL OR PERSON RESPONSIBLE FOR A PUBLIC SERVICE WHO COMMITS SUCH AN OFFENCE MAY BE LIABLE FOR AN INCREASED PENALTY .

3 THE ACCUSED APPEALED TO THE CORTE D' APPELLO DI VENEZIA, WHICH HELD THAT THE CREDIT INSTITUTION IN QUESTION FELL WITHIN THE SCOPE OF DIRECTIVE 77/780/EEC AND THAT IT WAS NECESSARY TO ESTABLISH WHETHER THE CLASSIFICATION "PERSONS RESPONSIBLE FOR A PUBLIC SERVICE OR PUBLIC OFFICIALS" APPLIED TO EMPLOYEES OF THAT INSTITUTION WAS COMPATIBLE WITH THE DIRECTIVE . IT THEREFORE SUBMITTED THE FOLLOWING QUESTION TO THE COURT OF JUSTICE :

"ACCOUNT BEING TAKEN OF THE CONTENT, CONSIDERED AS A WHOLE, OF THE DIRECTIVE ADOPTED ON 12 DECEMBER 1977 ( 77/780/EEC ) BY THE COUNCIL OF THE EUROPEAN COMMUNITIES, MAY THERE LAWFULLY BE INCLUDED IN OR, INSTEAD, MUST THERE BE EXCLUDED FROM, THE 'RESULT TO BE ACHIEVED' ( AN OBLIGATION IMPOSED UPON THE ITALIAN REPUBLIC BY THE THIRD PARAGRAPH OF ARTICLE 189 OF THE EEC TREATY ), AS REGARDS THE RULES ON THE STRUCTURAL ORGANIZATION OF THE CREDIT INSTITUTION ( ARTICLE 3*(4 ) OF THE ABOVEMENTIONED DIRECTIVE ) TO BE ADOPTED BY THE MEMBER STATE, THE CLASSIFICATION OF THE EMPLOYEES OF 'CREDIT INSTITUTIONS' ( FIRST INDENT OF ARTICLE 1 OF THE DIRECTIVE ) ( BY VIRTUE OF THE DISCHARGE OF SUCH EMPLOYEES OF THE DUTIES ASSIGNED TO THEM ) AS 'PUBLIC OFFICIALS' OR AS 'PERSONS RESPONSIBLE FOR A PUBLIC SERVICE' AS DEFINED IN ARTICLES 357 AND 358 RESPECTIVELY OF THE ITALIAN CODICE PENALE ( PENAL CODE ) NOW IN FORCE?"

4 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR THE FACTS OF THE CASE, THE COURSE OF THE PROCEDURE AND THE OBSERVATIONS SUBMITTED BY THE ACCUSED, THE COMMISSION AND THE ITALIAN GOVERNMENT, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .

5 THE NATIONAL COURT' S QUESTION ESSENTIALLY SEEKS TO ESTABLISH WHETHER IT IS CONTRARY TO THE PROVISIONS AND THE OBJECTIVE OF DIRECTIVE 77/780/EEC TO CLASSIFY EMPLOYEES OF CREDIT INSTITUTIONS AS "PUBLIC OFFICIALS" OR "PERSONS RESPONSIBLE FOR A PUBLIC SERVICE" FOR THE PURPOSES OF THE APPLICATION OF THE CRIMINAL LAW OF A MEMBER STATE .

6 IN ORDER TO ANSWER THAT QUESTION IT MUST BE OBSERVED IN THE FIRST PLACE THAT, AS THE COMMISSION AND THE ITALIAN GOVERNMENT HAVE RIGHTLY POINTED OUT, THE DIRECTIVE CONTAINS NO PROVISION GOVERNING THE STATUS WHICH IS TO BE GIVEN TO CREDIT INSTITUTIONS UNDER THE NATIONAL LAW OF THE MEMBER STATES OR THE EXTENT OF ANY CRIMINAL LIABILITY ON THE PART OF EMPLOYEES OF SUCH INSTITUTIONS, SUCH AS THAT FOR WHICH PROVISION IS MADE IN THE CASE IN POINT HERE, UNDER ITALIAN LAW . CONSEQUENTLY THE DIRECTIVE 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 .

7 FIRSTLY, THE DIRECTIVE STATES THAT, PURSUANT TO THE TREATY, ANY DISCRIMINATORY TREATMENT WITH REGARD TO ESTABLISHMENT AND THE PROVISION OF SERVICES, BASED EITHER ON NATIONALITY OR ON THE FACT THAT AN UNDERTAKING IS NOT ESTABLISHED IN THE MEMBER STATE WHERE THE SERVICES ARE PROVIDED, IS PROHIBITED . SECONDLY, IT MERELY SEEKS TO MAKE IT EASIER TO TAKE UP AND PURSUE THE BUSINESS OF CREDIT INSTITUTIONS BY ELIMINATING THE MOST OBSTRUCTIVE DIFFERENCES BETWEEN THE LAWS OF THE MEMBER STATES AS REGARDS THE RULES TO WHICH THOSE INSTITUTIONS ARE SUBJECT ( FIRST AND SECOND RECITALS IN THE PREAMBLE ). IN THAT CONNECTION, THE DIRECTIVE CONSTITUTES NO MORE THAN A FIRST STEP TOWARDS THE ACHIEVEMENT OF A COMMON MARKET FOR CREDIT INSTITUTIONS, DESIGNED, IN PARTICULAR, TO ACHIEVE OVERALL SUPERVISION OF A CREDIT INSTITUTION OPERATING IN SEVERAL MEMBER STATES . IN PRINCIPLE, THERE IS THEREFORE NO REQUIREMENT UNDER THE DIRECTIVE FOR MEMBER STATES NOT TO APPLY THEIR DOMESTIC LAW AND, IN PARTICULAR, THEIR CRIMINAL LAW, TO CREDIT INSTITUTIONS, AND THEREFORE TO THE EMPLOYEES OF THOSE INSTITUTIONS, IN SO FAR AS THE RELEVANT LEGISLATION DOES NOT CONSTITUTE DISCRIMINATION AGAINST CREDIT INSTITUTIONS FROM OTHER MEMBER STATES OR A RESTRICTION ON FREE ACCESS TO BANKING BUSINESS .

8 IN THAT CONNECTION, IT MUST BE HELD THAT THE CLASSIFICATION OF EMPLOYEES OF CREDIT INSTITUTIONS AS PUBLIC OFFICIALS OR PERSONS RESPONSIBLE FOR A PUBLIC SERVICE FOR THE PURPOSES SOLELY OF THE APPLICATION OF THE CRIMINAL LAW DOES NOT CONSTITUTE DISCRIMINATION BASED ON NATIONALITY OR ON THE REGISTERED OFFICE OF THE INSTITUTION, OR A RESTRICTION ON FREE ACCESS TO BANKING BUSINESS . FREE ACCESS TO BANKING BUSINESS AND THE FREE EXERCISE OF THAT ACTIVITY IS GUARANTEED ONLY UNDER THE CONDITIONS LAID DOWN BY THE LEGISLATION OF THE COUNTRY OF ESTABLISHMENT FOR ITS OWN NATIONALS AND CREDIT INSTITUTIONS .

9 AS REGARDS THE REFERENCE MADE BY THE NATIONAL COURT TO ARTICLE 3*(4 ) OF THE DIRECTIVE, IT MUST BE NOTED THAT THE REQUIREMENT LAID DOWN BY THAT PROVISION, TO THE EFFECT THAT CREDIT INSTITUTIONS MUST APPEND TO THEIR APPLICATIONS FOR AUTHORIZATION A PROGRAMME OF OPERATIONS SETTING OUT THE TYPES OF BUSINESS ENVISAGED AND THE STRUCTURAL ORGANIZATION OF THE INSTITUTION, IS FORMAL IN NATURE AND IS DESIGNED TO SECURE EFFECTIVE SUPERVISION OF THE ACTIVITIES OF THOSE INSTITUTIONS WITH A VIEW TO THE PROTECTION OF THEIR CUSTOMERS . THAT REQUIREMENT CANNOT BE UNDERSTOOD AS PRECLUDING A PARTICULAR STRUCTURE OF CREDIT INSTITUTIONS OR A SPECIFIC CLASSIFICATION OF BANK EMPLOYEES FOR THE PURPOSES OF THE APPLICATION OF THE CRIMINAL LAW .

10 AS FOR THE ARGUMENT OF THE PERSONS ACCUSED TO THE EFFECT THAT THE CLASSIFICATIONS IN QUESTION WOULD LEAD TO BINDING OBLIGATIONS AND SUPERVISION BY THE COURTS, IT MUST BE STATED IN THE FIRST PLACE THAT THE DIRECTIVE DOES NOT PRECLUDE SUPERVISION OF CREDIT INSTITUTIONS . SINCE SUCH SUPERVISION DOES NOT RESTRICT FREE ACCESS TO BANKING BUSINESS UNDER CONDITIONS OTHER THAN THOSE APPLYING TO CREDIT INSTITUTIONS IN THE MEMBER STATE CONCERNED, IT CANNOT BE REGARDED AS BEING CONTRARY TO THE PROVISIONS OR THE OBJECTIVE OF THE DIRECTIVE .

11 AS REGARDS THEIR ARGUMENTS TO THE EFFECT THAT THE DIRECTIVE ATTRIBUTES A PARTICULAR NATURE TO BANKING BUSINESSES, IT MUST BE HELD THAT THE DIRECTIVE EXCLUDES FROM ITS SCOPE CERTAIN INSTITUTIONS PURSUING CERTAIN OBJECTIVES, IN PARTICULAR OF PUBLIC INTEREST . HOWEVER, IT MUST BE HELD, ON THE ONE HAND, THAT THAT EXEMPTION DOES NOT MEAN THAT BANKS AND THEIR EMPLOYEES MUST NECESSARILY HAVE PRIVATE STATUS AND, SECONDLY, THAT THE DIRECTIVE DOES NOT PREVENT THE MEMBER STATES FROM GIVING PRIVATE BANKS AND THEIR EMPLOYEES SPECIAL STATUS WITH REGARD TO THE APPLICATION OF THE CRIMINAL LAW .

12 IT FOLLOWS FROM THE WHOLE OF THE FOREGOING THAT THE ANSWER TO THE QUESTION REFERRED BY THE NATIONAL COURT MUST BE 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 .

Decision on costs

COSTS

13 THE COSTS INCURRED BY THE ITALIAN GOVERNMENT AND BY THE COMMISSION ARE NOT RECOVERABLE . AS 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 QUESTION SUBMITTED TO IT BY THE CORTE D' APPELLO DI VENEZIA BY ORDER OF 15 APRIL 1985, HEREBY RULES :

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 .