CELEX: 62001CC0397(01)
Language: en
Date: 2004-04-27 00:00:00
Title: Opinion of Mr Advocate General delivered on 27 April 2004. # Bernhard Pfeiffer (C-397/01), Wilhelm Roith (C-398/01), Albert Süß (C-399/01), Michael Winter (C-400/01), Klaus Nestvogel (C-401/01), Roswitha Zeller (C-402/01) and Matthias Döbele (C-403/01) v Deutsches Rotes Kreuz, Kreisverband Waldshut eV. # Reference for a preliminary ruling: Arbeitsgericht Lörrach - Germany. # Social policy - Protection of the health and safety of workers - Directive 93/104/EC - Scope - Emergency workers in attendance in ambulances in the framework of an emergency service run by the German Red Cross - Definition of 'road transport' - Maximum weekly working time - Principle - Direct effect - Derogation - Conditions. # Joined cases C-397/01 to C-403/01.

OPINION OF ADVOCATE GENERALRUIZ-JARABO COLOMERdelivered on 27 April 2004(1)
         Joined Cases C-397/01 to C-403/01Bernhard Pfeiffer and OthersvDeutsches Rotes Kreuz Kreisverband Waldshut eV(Reference for a preliminary ruling from the Arbeitsgericht, Lörrach (Germany))
            (Social policy  –  Health and Safety of Workers  –  Directive 93/104 EC  –  Maximum weekly working time  –  Principle  –  Direct effect  –  Exceptions  –  Requirements)
            
      
         
      I –  Background
        1.        This is the second Opinion I have delivered in these proceedings, 
         			(2)
         		 commenced in 2001 to obtain a preliminary ruling on three questions 
         			(3)
         		 referred by the Arbeitsgericht (Labour Court), Lörrach, Germany, the court which rules at first instance on employment matters.
      
      
        2.        The Court of Justice initially ruled that these cases, which address technical issues, 
         			(4)
         		 should be assigned to a Chamber of five judges 
         			(5)
         		 and should be determined without a hearing. However, although the replies to the first two questions seem obvious, the third
      presents greater difficulty.
       The last question is intended to ascertain whether, where a Member State has not properly transposed Directive 93/104/EC concerning
      certain aspects of the organisation of working time 6  –Council Directive of 23 November 1993 (OJ 1993 L 307, p. 18). into national law, Article 6(2), under which the national authorities must ensure that average weekly working time does not
      exceed 48 hours, including overtime, is sufficiently precise and unconditional to be capable of being relied on by individuals
      before national courts.
      
      
        3.        According to the order of the Grand Chamber of the Court 
         			(7)
         		 of 13 January 2004, reopening the oral procedure, that chamber took the view that, if the provision at issue fulfilled the
      criteria for direct effect, it would be called upon to determine, in a dispute between individuals, the consequences of the
      incompatibility of a national provision implementing a directive with a sufficiently precise and unconditional rule of Community
      law. The Sixth Chamber therefore referred the cases back to the full Court under Article 44(4) of the Rules of Procedure.
      
      
        4.        A hearing was arranged to discuss that point, to which the Member States, the Council and the Commission as well as the parties
      to the main proceedings were invited.
       In this Opinion I shall confine myself to addressing that question, and shall, in all other respects, treat my previous Opinion
      as being reproduced here.
      
      
        5.        The representatives of the plaintiffs in the main proceedings and the agents of the German, French, Italian and United Kingdom
      Governments and of the Commission attended the hearing of 9 March 2004.
      
      
      II –  Legal and factual context
        6.        Working time and rest periods are regulated in Germany by the Arbeitszeitgesetz (Law on working time) of 6 June 1994, adopted
      in order to transpose Directive 93/104 into national law.
      
      
        7.        Under Paragraph 2(1), working time is defined as the time between the beginning and the end of the working day, excluding
      breaks. According to Paragraph 3, that time must not exceed eight hours, although it may be increased to 10 hours, if the
      average working time over six calendar months or 24 weeks does not exceed eight hours per working day.
      
      
        8.        However, under Paragraph 7(1)(i), by way of derogation from Article 3, under a collective or works agreement:
      
      (a)
         the working day may be extended beyond 10 hours, even without compensation, where working time regularly includes a significant
            period of duty time;
         
      
      …
      
      
        9.        According to Paragraph 14(1) of the Tarifvertrag über Arbeitsbedingungen für Angestellte, Arbeiter und Auszubildende des Deutschen
      Roten Kreuzes (collective agreement on working conditions for German Red Cross employees, workers and trainees), ‘the Red
      Cross collective agreement’, based on Paragraph 7(1)(i)(a) of the German law, weekly working time, exclusive of breaks, may
      not exceed 39 hours (from 1 April 1990, 38 1/2 hours) per week. The average is, as a rule, to be calculated on the basis of
      a 26-week period. 
       According to Article 14(2), normal working time may be increased to:
      
      (a)
         an average of 10 hours per day or 49 hours per week, if it includes a period of duty time of at least two hours per day on
            average;
         
      
      
      (b)
         an average of 11 hours per day or 54 hours per week, if the period of duty time is three hours; and
      
      
      (c)
         an average of 12 hours per day or 60 hours per week, if the employee remains in the workplace but only works when asked to.
      
      
      
        10.      The plaintiffs, who are all rescue workers qualified to provide emergency medical assistance and ambulance transport and are
      employees or former employees of the German Red Cross, are claiming, in two cases, payment for overtime and, in the others,
      confirmation of their right not to work more than 48 hours per week. The defendant operates, inter alia, land-based emergency
      medical services, manages several 24-hour rescue posts and uses ambulances to carry out its work.
      
      
        11.      The contracts of employment are governed by the Red Cross collective agreement. It is common ground that the substantive requirements
      for extending working hours, which are set out in Paragraph 14(2)(b), and entail the performance of duty time (Arbeitsbereitschaft)
      of at least three hours per day, are met.
      
      
        12.      According to the wording of that agreement, which was in force at the material time, the maximum weekly working time set by
      Article 6(2) of Directive 93/104 could be exceeded on a continuous basis, since Paragraph 7(1)(i)(a) of the Arbeitszeitgesetz
      permitted extension of working time beyond 10 hours, by means of a collective agreement, without compensation, where it regularly
      included a significant period of duty time. 
         			(8)
         		
      
      III –  Analysis of the question
        13.      In my previous Opinion I expressed the view, with a number of citations from the case-law and legal writings, that this was
      a dispute between individuals, and that therefore, according to the settled case‑law of the Court of Justice on the direct
      effect of directives not properly implemented by Member States, the workers could not rely on Article 6(2) of Directive 93/104.
      
      
        14.      I also pointed out that, in such circumstances, a court, when it interprets national 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 249 EC.
      
      
        15.      I noted, lastly, that, where it is impossible to provide an ‘interpretation in conformity with a directive’, the case-law
      of this Court requires the national court to give full effect to Community law, if necessary refusing of its own motion to
      apply any conflicting provision of national legislation, and it is not necessary for the Court to request or await the prior
      setting aside of such provision by legislative or other constitutional means.
      
      
        16.      I understand and share the concern of those who perceive an obstacle to this logic in the fact that directives have not been
      recognised as having horizontal direct, but reconciling that line of case-law, which runs counter to the view of a number
      of Advocates General and much academic thinking, with the requirement for ‘interpretation in conformity with directives’ is
      one of the most complex dilemmas in Community law, not easily amenable to general resolution. It is worthwhile, none the less,
      analysing the situation further, if only to seek a solution appropriate to the particular facts of the present cases, one
      based on the primacy of Community law, the Member States’ duty of cooperation in good faith under Article 10 EC and the legislative
      nature of the directive and its effects on the legal system established by the Treaty.
       I can say at this stage that I have not found any of the arguments expounded in the course of the proceedings to be entirely
      persuasive.
      
      
        17.      The Court of Justice seeks clarification of the applicability of the notion of ‘interpretation in conformity with directives’,
      in view of the circumstances of these cases: (1) Paragraph 7(1)(i)(a) of the German law on working time is an exception to
      more general rules contained in that statute which are perfectly in line with the wording and purpose of the Community provision;
      (2) Directive 93/104 is intended to protect workers as the weaker party in the employment relationship; and (3) the action
      brought by the majority of the plaintiffs seeks confirmation of the right not to work more than 48 hours per week, a non-financial
      and not easily quantifiable claim, making it very unlikely that they will obtain reparation from the public authorities for
      breach of Community law.
      
      
        18.      The facts of these cases distinguish them from other situations previously examined by this Court, where the legislation of
      a Member State had not been amended to comply with a directive within the prescribed period or had not been properly amended.
      Here, conversely, Germany has passed a law to transpose the letter and the spirit of Directive 93/104 into its domestic law.
      I presume that it intended to act properly, since there is nothing to suggest a deliberate intention to circumvent its duty
      of good faith under Article 10 EC. Evidence of its willingness to comply is to be found in the fact that, in less than four
      months, it amended its legislation to bring it into line with this Court’s interpretation in Jaeger. 
         			(9)
         		 In addition, according to the case-law, every court must presume that the State had the intention of fulfilling entirely
      the obligations under a directive. 
         			(10)
         		
      
        19.      One must take the view, therefore, that the intention of the German Law on working time is to include the entirety of the
      provisions of Directive 93/104. It has, however, erred in one respect. It has gone beyond the limits imposed by the proper
      distinction between the principles (Articles 1 to 16) and the exceptions (Articles 17 and 18) around which the provisions
      of the directive have been structured: Paragraph 7(1)(i)(a) of the Law, is presented as an exception, since all the other
      provisions include definitions of working time and breaks which scrupulously comply with the Community rules.
      
      
        20.      That provision of the German Law, on which Paragraph 14 of the Red Cross collective agreement relies to extend weekly working
      time, has been drafted as an exception to Paragraph 3, according to which it cannot be more than eight hours per day.
      
      
        21.      If one interprets the latter provision in conjunction with Paragraph 9 of that Law, which sets aside Sunday as rest time,
      this gives weekly working time of 48 hours, consistent with the requirement in Article 6(2) of Directive 93/104. Merely by
      applying those two provisions of national law one could find in favour of the majority of the plaintiffs in the main proceedings
      since, as observed, two of the seven are seeking payment of overtime, but the other five have applied for confirmation of
      the right not to work more than 48 hours per week.
       Should the German court so find, would that mean that, contrary to established case-law, it was upholding the direct effect
      of a provision in a directive which cannot, as is well-known, of itself impose obligations on an individual? 11  –Judgments in Case 152/84 Marshall [1986] ECR 723, paragraph 48 and Case C‑106/89 Marleasing [1990] ECR I-4135, paragraph
      6.
      
      
        22.      The Member States who have taken part in these proceedings for a preliminary ruling have, quite openly, shown their dismay
      at the possibility of a change of direction in the case-law to give direct effect to a directive not incorporated into national
      law within the period prescribed or not correctly implemented. I do not share those fears, since I do not think the issue
      arises in relation to Article 6(2) of Directive 93/104, even though it does fulfil the requirements of being sufficiently
      precise and unconditional. 
         			(12)
         		 Nor do I agree with those who have contended that failure to apply in the main proceedings the German provision which is
      contrary to the Community rule in issue would amount to giving it direct effect, despite the many rulings of this Court which
      preclude direct effect between private parties.
       Rather, I agree with the Italian Government when it finds it less problematic, as well as more effective, given the objectives
      which the Treaty seeks to achieve by means of directives, to uphold the solution formulated by the Court of Justice, favouring
      the interpretation of the national provision which best conforms to Community law.
      
      
        23.      I do not need to point out that the obligation on Member States to achieve the results envisaged in directives and their duty,
      under Article 10 EC, to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation,
      are binding on all national authorities including the courts. 
         			(13)
         		
      
        24.      In order to mitigate the consequences of refusing to give direct effect to a particular provision in a directive in proceedings
      between individuals, this Court has developed a principle known as ‘the principle of interpretation in conformity with directives’,
      according to which, in applying national law, whether adopted before or after the directive, the court, is required to do
      so, so far as possible to achieve the result pursued by the latter and thereby comply with the third paragraph of Article
      249 EC. 
         			(14)
         		 The principle must be followed by a national court, in particular where a Member State has taken the view, as in the present
      instance, that the provisions it has adopted satisfied the requirements of the directive. 
         			(15)
         		
      
        25.      Indeed, in a good number of the cases in which it has recommended that type of interpretation, because the disputes are between
      individuals, this Court has not confined itself merely to so stating, but has gone further, telling the court which has referred
      the matter to it the specific outcome it should achieve on each occasion. It is useful to point to a few examples by way of
      illustration. 
         			(16)
         		
      
        26.      Interpretation of Directive 68/151/EEC, 
         			(17)
         		 which has not been implemented in Spanish law, and which is intended to limit the cases in which the nullity of public limited
      liability companies can arise in order to ensure certainty in the law as regards relations between the company and third parties,
      and also between members, led the Court of Justice to advise the national court that it was obliged to interpret its domestic
      law in the light of the wording and purpose of that directive in order to preclude a declaration of nullity of a public limited company on a ground other than those listed in Article 11
         of the directive. 
         			(18)
         		 Marleasing SA had applied for a declaration that the founders’ contract of a company was void on the ground that the establishment
      of the company lacked cause, was a sham transaction and had been carried out in order to defraud creditors. The defendant
      refuted the claim, asserting that Article 11 of the directive in question lists exhaustively the cases in which the nullity
      of a company may be ordered, which do not include lack of cause. In order to adopt the suggestion of the Court of Justice,
      Articles 1261 and 1275 of the Spanish Civil Code, according to which contracts without cause or whose cause is unlawful have
      no legal effect, should not be applied. That is exactly what the Tribunal de Primera Instancia (Court of First Instance) No
      1, Oviedo, did in its ruling of 23 February 1991, dismissing the claim, in so far as it was based on lack of cause, a ground
      for nullity not envisaged by Directive 68/151. 19  –See the DEC-NAT database of the Court of Justice, II-Cour QP/01853-P1. The judgment, which drew unanimous praise for its Community spirit, did not question whether application of the ‘interpretation
      in conformity with directives’ principle could have an effect equivalent to recognition of horizontal direct effect of directives.
      
      
        27.      The Wagner Miret 
         			(20)
         		 judgment concluded from the order for reference that the Spanish provisions could not be interpreted so as to conform with
      Directive 80/987/EEC 
         			(21)
         		 and therefore did not permit higher management staff to obtain the benefit of the guaranteesprovided by the Community provision, holding that the Member State was obliged to make good the loss caused to those affected by the failure to comply. 
       It emerged in the proceedings for a preliminary ruling that Spain had established no guarantee institution other than the
      Fondo de Garantía Salarial, which did not cover that category of employee in relation to a claim for unpaid salary as a result
      of the employer’s insolvency. In view of the discretion which Directive 80/987 allows to Member States, the Court of Justice
      held that the category of employees in question could not rely on Directive 80/987 in order to request the payment of amounts
      owing to them by way of salary from the guarantee institution established for the other categories of employee. In its judgment
      of 16 February 1994 the Tribunal Superior de Justicia (High Court of Justice), Catalonia, dismissed the claim, absolving the
      Fondo de Garantía Salarial from liability, but found that the plaintiff did have an action against the State for the loss
      suffered, which it should bring before the competent court. 22  –See the DEC-NAT database of the Court of Justice, II-Cour QP/02395-P1.
      
      
        28.      In Océano Grupo Editorialand Salvat Editores 
         			(23)
         		 it was necessary to determine whether, where national law had not been adapted within the prescribed period in line with
      Directive 93/13/EEC, 
         			(24)
         		 it was possible for the court to find, of its own motion, that a Barcelona civil court lacked jurisdiction, on the grounds
      that jurisdiction had been conferred on it in a contractual term which the same court found to be unfair within the meaning
      of the Directive. The Court of Justice, adopting the suggestion of Advocate General Saggio in his excellent Opinion, paragraphs
      27 to 37 of which exhaustively analysed this delicate issue, answered in the affirmative, holding that the requirement for
      an ‘interpretation in conformity with directives’ requires the national court, in particular, to favour the interpretation that would allow it to decline of its own motion the jurisdiction conferred on it by virtue of an
         unfair term. The term at issue gave the court where the company was domiciled exclusive jurisdiction to hear disputes relating to the enforcement
      of a sale and purchase agreement. Directive 93/13 was transposed out of time into national law and, in the meantime, the consumer
      protection provisions then in force were applied, which did not expressly regulate whether the court could of its own motion
      invoke the nullity of the unfair terms, and nor was there, in Spanish law, any legal basis for the court’s jurisdiction to
      rule on nullity, unless on application by a party. However, this Court advised the Spanish court that it should, of its own
      motion, decline jurisdiction to hear a dispute referred to it under those circumstances. 25  –Craig, P. and Búrca, G.: EU Law. Text, cases and materials, Third Edition, Oxford University Press, p. 219: ‘This ruling
      does not declare that the Spanish court must decline jurisdiction by reading national law in the light of the Directive’s
      requirements, but it certainly encourages the national court to do this, by indicating that it should “favour” that interpretation
      if it is possible. And while such an interpretation of national law would not impose any legal obligation on Océano, it would
      deprive that company of any possible existing right under national law to enforce the consumer contract before the Barcelona
      court. While the defendant would not himself or herself have to “invoke” the right (since the defendant might well not appear
      before a court outside his or her domicile) that party would benefit from the terms of the directive even though it was not
      implemented, and the plaintiff company would suffer a legal disadvantage’; and Stuyck, J.: Common Market Law Review, 38, pp.
      719 to 737, in particular, p. 737: ‘Océano means a further step in the Court’s case law on the role of the national judge
      in applying Community law, by construing a duty for the national courts to invoke of their own motion the unfair character
      … of a jurisdiction clause’. 
       In its order of 14 July 2000 the Spanish first instance court applied, to the letter, the judgment of the Court of Justice
      and exercised its powers to review of its own motion the unfair nature of a term and to find that the claim should not be
      allowed to proceed on the grounds that the term relating to submission of the action to the Barcelona courts was unfair, adding
      that such nullity conferred jurisdiction to hear the case on the courts where the defendant had its domicile. 26  –See the DEC-NAT database of the Court of Justice, II-Cour QP/03748-P1.
      
      
        29.      The obligation to interpret in conformity with directives arises not only in references for preliminary rulings, as the examples
      given might suggest. The judgment in Commission v Italy 
         			(27)
         		 made it clear that a finding that a Member State has failed to fulfil its obligations under Community law entails an automatic prohibition on the application, by both the judicial and administrative authorities of that Member State,
         of the incompatible tax exemption scheme and, secondly, an obligation on the part of those authorities to take all appropriate
         measures to facilitate the full application of Community law. 
      
        30.      In other instances, without telling the national court quite so specifically what it had to achieve, the Court of Justice
      has intimated to it the best route to achieve the purpose of the directive.
      
      
        31.      In Pafitis and Others, 
         			(28)
         		 the Court ruled that Article 25 of Directive 77/91/EEC, 
         			(29)
         		 intended to ensure a minimum degree of protection for shareholders in all Member States, precludes a national provision under
      which the capital of a bank constituted in the form of a public limited liability company which, as a result of its debt burden,
      is in exceptional circumstances, may be increased by an administrative measure, without a resolution of the general meeting.
      
       The main proceedings were between, on the one hand, a bank constituted in the form of a public limited liability company and
      its new shareholders and, on the other, the former shareholders who were challenging both the amendment of the articles of
      association which had enabled an increase in capital, claiming that it was a decision taken by the temporary administrator
      without a general meeting having been called, and the allotment of the shares. They were also applying for the three later
      capital increases to be declared void. The subsequent vicissitudes of the proceedings have made it impossible to discern what
      the outcome of the Court’s ruling might have been. 30  –On that occasion, the national court which had referred the question for a preliminary ruling rejected the interpretation
      of the Court of Justice and dismissed the action (DEC-NAT database of the Court of Justice, II-Cour QP/02610-P1). On appeal,
      the Greek court referred a new question for a preliminary ruling (II-Cour QP/03745-P1), which was withdrawn when the parties
      discontinued the case. This Court was thus denied the opportunity to rule on the refusal by the first instance court to apply
      its interpretation.
      
      
        32.      In Ruiz Bernáldez, 
         			(31)
         		 the questions arose in criminal proceedings against an intoxicated driver who had caused a road traffic accident. The national
      court ordered the driver to pay for the damage to property and personal injuries caused, but found his insurance company not
      liable to pay any indemnity whatsoever, basing its view on the national rules relating to insurance against civil liability
      in respect of the use of motor vehicles, under which loss and damage was not covered if the party causing the damage was driving
      whilst intoxicated.
       On that occasion the Court of Justice interpreted Directives 72/166/EEC 32  –Council Directive of 24 April 1972 on the approximation of the laws of Member States relating to insurance against civil
      liability in respect of the use of motor vehicles, and to the enforcement of the obligation to insure against such liability
      (OJ, English Special Edition 1972 (II), p. 360). and 84/5/EEC 33  –Second Council Directive of 30 December 1983 on the approximation of the laws of the Member States relating to insurance
      against civil liability in respect of the use of motor vehicles (OJ 1983 L 8, p. 17). as meaning that, in view of the aim of ensuring protection, compulsory motor insurance must enable third-party victims of
      accidents caused by vehicles to be compensated for all the damage to property and personal injuries sustained, and that the
      compulsory insurance contract may not provide that in certain cases, in particular where the driver of the vehicle was intoxicated,
      the insurer is absolved from paying compensation for the damage to property and personal injuries caused to third parties
      by the insured vehicle. It was, then, suggesting to the national court that the company should have to give satisfaction to
      the victims, even though the national legislation did not provide for it. 34  –Tridimas, T.: ‘Black, white and shades of grey: horizontality of directives revisited’, in Yearbook of European Law,
      21, 2001-2002, pp. 327 to 354, in particular, p. 352: ‘Bernáldez causes problems. It is clear that the insurance directives
      were relied upon to impose an obligation on a third party, i.e. the insurance company, which was not represented in the proceedings.
      The Court expressly held that Article 3(1) of the First Directive precludes an insurer from being able to rely on statutory
      provisions or contractual clauses to refuse to compensate third-party victims of an accident caused by the insured vehicle.
      How can this be distinguished from horizontal direct effect? The answer is with difficulty’. In its judgment of 30 April 1996, the Audiencia Provincial (Provincial Court), Seville, in line with the preliminary ruling
      of the Court of Justice, ordered the insurer to compensate the party injured by the accident caused by the intoxicated Mr
      Ruiz Bernáldez. 35  –See the DEC-NAT database of the Court of Justice, II-Cour QP/02722-P1.
      
      
        33.      In Draehmpaehl 
         			(36)
         		 it was held that Directive 76/207/EEC 
         			(37)
         		 precludes provisions of domestic law which, unlike other provisions of domestic civil and labour law, prescribe an upper
      limit of three months’ salary for the amount of damages which may be claimed by an applicant discriminated against on grounds
      of sex in the making of an appointment where it is shown that that applicant would otherwise have obtained the vacant position,
      or of six months’ salary where there are several applicants. The worker had responded to an employment advertisement addressed
      to women published in a newspaper, and the company had neither replied to him nor returned the documents submitted. He sought
      a judicial remedy, pleading that he was the best qualified applicant for the position and that he had suffered discrimination.
      Here again, the clarity of the preliminary ruling left the Arbeitsgericht (Labour Court), Hamburg, with few alternatives. 
         			(38)
         		
      
        34.      Ruling on Directive 86/653/EEC 
         			(39)
         		 in Bellone, 
         			(40)
         		 this Court held that it did preclude a national rule which made the validity of an agency contract conditional upon the commercial
      agent being entered in a register. The Italian legislation, in addition to requiring such registration in the Chambers of
      Commerce, made the validity of the contract conditional upon registration, with the result that any person not satisfying
      that requirement was deprived of any legal protection, in particular on termination of the relationship between the parties.
      Indeed, the dispute concerned a claim for damages by an agent, after termination of an agency contract entered into with a
      company. Advocate General Saggio, in paragraph 35 of his Opinion delivered in Océano Grupo Editorial, asserted that in Bellone the Court of Justice had identified an incurable incompatibility between the provision of national law and the directive
      in question which precluded any attempt at an ‘interpretation in conformity’, and therefore required the referring court not
      to apply the provision of its own law. 
         			(41)
         		
      
        35.      In the judgment in Centrosteel, 
         			(42)
         		 the Court determined a case regarded as a continuation of Bellone. A different Italian court, taking the view that, since directives do not have direct effect under the case‑law, it was obliged
      to apply domestic law, enquired of this Court whether the provisions of the Treaty relating to freedom of establishment and
      freedom to provide services, the direct applicability of which was not in doubt, precluded the Italian law under which it
      was compulsory to register anyone acting as a commercial agent, on pain of any contracts to which such a person was a party
      being void. This Court gave a preliminary ruling pointing the referring court to the well-known principle of the interpretation
      of national law in conformity with directives, in order to achieve the purpose of Directive 86/653, and did not address interpretation
      of the primary legislation. Advocate General Jacobs, in paragraph 5 of his Opinion, and this Court, in paragraph 17 of the
      judgment, concurred in noting that, as a result of the judgment in Bellone, the Corte di Cassazione had changed its case-law so that failure to comply with the legal obligation to be entered in the
      register no longer entailed the nullity of agency contracts.
      
      
        36.      To disregard those developments in the case-law would entail a serious set-back for respect for the principle of the primacy
      of Community law, would compromise the authority of the Court of Justice to impose a uniform interpretation of that law throughout
      the territory of the European Union and would demoralise national courts in the exercise of their function as Community courts,
      in particular those which have followed the recommendations of preliminary rulings relevant for the ‘interpretation in conformity’
      of their legal provisions.
       Because, as Cicero said, 43  –Cicero, The Republic, translation by Niall Rudd, Oxford World’s Classics, 1988, Book one, 3, p. 2. we are led by a powerful urge to increase the wealth of the human race; we are keen to make men’s lives safer and richer
      by our policies and efforts; we are spurred on by nature herself to fulfil this purpose. Therefore, let us hold that course
      which has always been followed by the best men, ignoring the bugle for retreat, which tries to recall those who have already
      advanced.
      
      
        37.      However, it was conceded in Arcaro, 
         			(44)
         		 in another Italian reference for a preliminary ruling, that Community law has no method of procedure able to eliminate a
      national provision contrary to a provision in a directive which cannot be relied upon. It was also recognised that the obligation
      on the national court to have regard for the content of the directive when interpreting the relevant rules of its own national
      law reaches a limit, where such an interpretation leads to the imposition on an individual of an obligation laid down by a
      directive which has not been transposed into domestic law or, more particularly, where it entails the liability in criminal
      law of persons who act in contravention of the provisions of the directive.
      
      
        38.      Those findings in Arcaro, nevertheless, cannot, of themselves, be extended to cover the cases now under examination, as contended by some of the Member
      States who have made representations, for several reasons:
       First, the proceedings involving Mr Arcaro were not between two individuals, since he was the defendant in criminal proceedings.
      What was sought, therefore, was to prevent the Member State, which had not complied with its obligation to adapt its legislation
      in line with Directives 76/464/EEC 45  –Council Directive of 4 May 1976 on pollution caused by certain dangerous substances discharged into the aquatic environment
      of the Community (OJ 1976 L 129, p. 23). and 83/513/EEC, 46  –Council Directive of 26 September 1983 on limit values and quality objectives for cadmium discharges (OJ 1983 L 291,
      p. 1). from deriving an advantage from its failure and from imposing a criminal penalty on a businessman who had infringed some
      of the provisions of those directives. This Court has in any event held that the obligation on the national court to refer
      to the content of the directive, when it interprets a national provision, is limited by the general principles of law which
      form part of Community law and in particular those of legal certainty and non-retroactivity, especially if that obligation
      could give rise to criminal liability. 47  –Case 14/86 Pretore de Salò [1987] ECR 2545, paragraph 20; and Case 80/86 Kolpinghuis Nijmegen [1987] ECR 3969, paragraph
      13.
       Second, the circumstances of Arcaro are very different from those of the actions brought by the Red Cross employees, since in the former the Italian legislature
      had only incompletely transposed Community law, whereas Germany has adopted a specific law to implement Directive 93/104 in
      its entirety, Article 3 of which properly reproduced the terms of Article 6(2) of the Community provision, when it set maximum
      weekly working time at 48 hours.
      
      
        39.      The position, then, is not, as the German Government argues, that if Paragraph 7(1)(i)(a) of the Law on working time were
      disregarded the domestic court would encounter a legal vacuum which would oblige it to impose penalties on an employer under
      Directive 93/104, since it could, quite simply, resort to another national rule, belonging to the same statute, adopted in
      order to transpose the Community provisions 
         			(48)
         		 and which does comply with the general requirement imposed by the European legislature 
         			(49)
         		 that working time in Member States should not exceed that number of hours. 
         			(50)
         		 In that regard I share the view of Advocate General Van Gerven in point 7, second paragraph, of his Opinion in Marleasing, 51  –Cited above. that the obligation on the part of the national courts to interpret their national law in conformity with a directive does
      not mean that the directive has direct effect as between individuals. On the contrary, it is the national provisions themselves,
      interpreted in a manner consistent with the directive, which apply. 
      
      
        40.      I should also mention two judgments abundantly cited by the parties at this stage of the proceedings, both for and against
      their various arguments. I refer to CIA Security International 
         			(52)
         		 and Unilever, 
         			(53)
         		 which may be landmarks in the development of this Court’s case-law on the application by national courts of directives not
      complied with by Member States, but are not overly useful in anwering the question now raised. 
         			(54)
         		 In both cases the reply to the national court was that, in proceedings between individuals, it should decline to apply a national
      technical regulation approved without prior notification to the Commission, in clear breach of Articles 8 and 9 of Directive
      83/189/EEC, 55  –Council Directive of 28 March 1983 laying down a procedure for the provision of information in the field of technical
      standards and regulations (OJ 1983 L 109, p. 8). but the Court of Justice took pains to point out that its case-law in Faccini Dori 56  –Cited above. was not relevant to the matter, because non-compliance with the provisions of that directive constituted a substantial procedural
      defect and its provisions created neither rights nor obligations for individuals. 57  –Unilever, also cited above, paragraphs 50 and 51.
      
      
        41.      Nor has the fact that the direct effect of a rule in a directive may affect the rights of individuals, who do not form part
      of the vertical relationship, prevented the Court of Justice from finding that there is direct effect. This is well illustrated
      in the following judgments: Fratelli Costanzo, 
         			(58)
         		 which interprets Directive 71/305/EEC 
         			(59)
         		 in proceedings for annulment of the decision to award a public works contract; 
         			(60)
         		World Wildlife Fund and Others, 
         			(61)
         		 in other proceedings for annulment brought by various individuals living near an airport and two environmental associations,
      contesting the decision to approve a project for the restructuring of the airport’s facilities; Smith & Nephew and Primecrown 
         			(62)
         		 which permitted the holder of a marketing authorisation issued under Directive 65/65/EEC 
         			(63)
         		 to rely on the provisions of that directive in proceedings before a national court, in order to challenge the validity of
      an authorisation issued by the competent authority on the basis of that directive to one of its competitors for a proprietary
      medicinal product bearing the same name; and the recent judgment in Wells, 
         			(64)
         		 in which it was stated obiter  that mere adverse repercussions on the rights of third parties, even if the repercussions are certain, do not justify preventing
      an individual from invoking the provisions of a directive against the Member State. 
      
      
        42.      I also disagree with those who have maintained that primacy can only be attributed to primary Community law or, at the very
      most, to regulations, because it was a regulation which was at issue in Simmenthal, 
         			(65)
         		 an artificial and inaccurate distinction given that, 
         			(66)
         		 in the ruling referred to, the Court of Justice confirmed the primacy of both the Treaty and of the directly applicable measures
      of the institutions. Furthermore, every time a Community provision is believed to preclude a provision of a Member State,
      the principle of primacy established nearly 40 years ago must be reiterated, irrespective of the Community source: the Treaty, 
         			(67)
         		 a regulation or a directive. 
         			(68)
         		
      
        43.      It is not my intention, at this juncture, to argue for the direct horizontal effect of untransposed directives which satisfy
      the requirements laid down by the case-law. I am not seeking, far from it, to encourage national courts to apply such rules
      and encroach on the functions of the national legislature.
       However, nor can I concur with those who argue that, in a case such as that under examination, individuals are only entitled
      to hold the State liable for loss and damage caused in breach of its obligations under Community law since, as this Court
      has held, that solution is a remedy in the alternative and would only come into operation in this situation if none of the
      other national provisions adopted to implement Directive 93/104 could be interpreted in conformity with its wording and purpose.
      
      
        44.      In the circumstances of these cases, the Court of Justice’s role as guarantor of the uniform interpretation of Community law,
      incumbent upon it particularly in its jurisdiction in preliminary rulings, means that it cannot leave the national court with
      no option but to apply a provision of domestic law 
         			(69)
         		 which is contrary to the wording of Article 6(2) of Directive 93/104 and to its purpose of improving the health and safety
      of workers. 
         			(70)
         		
      
        45.      In view, then, of the fact that Article 6(2) of Directive 93/104 is a clear, precise and unconditional provision, not requiring
      any implementation by the national legislature, 
         			(71)
         		 and that the German court can avail itself of different provisions of the Law on working time, other than Paragraph 7(1)(i)(a),
      it is inappropriate to invite the workers to bring an action for damages against the State.
      
      
        46.      I would add that the national court must, in interpreting the domestic implementing legislation, 
         			(72)
         		 take into account the concern in Directive 93/104 to protect workers, as the more vulnerable party in the employment relationship.
      This Court itself, in Unilever, 
         			(73)
         		 was at pains to distinguish between directives which create rights and obligations for individuals and those which do not.
      
      
      
        47.      It seems advisable, therefore, to recommend that the Arbeitsgericht, Lörrach should, in compliance with its responsibilities
      under Community law, follow the path mapped out by the Juzgado de Primera Instancia, Oviedo, the Tribunal Superior de Justicia,
      Catalonia, the Juzgado de Primera Instancia No 35, Barcelona, the Audiencia Provincial, Seville, the Tribunale Civile, Bologna,
      the Corte di Cassazione and the Pretore (Magistrate), Brescia.
      
      
        48.      For the reasons set out above I have to propose, provided the State has not availed itself of the option in Paragraph 18(1)(b)(i),
      that the Court of Justice should find that Article 6(2) of Directive 93/104 does preclude a provision such as Article 7(1)(i)(a)
      of the German Law on working time which, in a collective or works agreement, allows daily working time to be extended beyond
      10 hours, if working time regularly includes significant periods of duty time.
       In consequence, since it is based on Paragraph 7, Paragraph 14 of the German Red Cross collective agreement must be interpreted
      as meaning that the workers affected are not obliged to work more than an average of 48 hours per week, having regard for
      Article 16(2) and Article 17(4) of Directive 93/104 on the setting of the reference period for calculating the average.
      
       
      IV –  Conclusion
        49.      In accordance with the foregoing considerations, I again suggest to the Court of Justice that it reply as follows to the third
      question raised in this case by the Arbeitsgericht, Lörrach:
      ‘Article 6(2) of Directive 93/104 concerning certain aspects of the organisation of working time, as well as conferring rights
      on individuals, is, even where Member States lay down exceptions to the reference period set in Article 16(2), clear, precise
      and unconditional, and therefore can be relied upon before the national courts, when the Member State has failed properly
      to transpose that provision within the prescribed period. However, since the main actions are proceedings between individuals,
      the workers cannot rely on the direct effect of that provision.
       Provided the State has not availed itself of the option in Article 18(1)(b)(i), Article 6(2) of Directive 93/104 does preclude
      a provision such as Paragraph 7(1)(i)(a) of the German Law on working time which, in a collective or works agreement, allows
      daily working time to be extended beyond 10 hours if working time regularly includes significant periods of duty time. Paragraph
      14 of the collective agreement concerning working conditions for German Red Cross employees, workers and trainees, since it
      is based on Paragraph 7, must be interpreted with the effect that the workers affected are not obliged to work more than an
      average of 48 hours per week, having regard for Article 16(2) and Article 17(4) of Directive 93/104 on the setting of the
      reference period for calculating the average.’
      
      
       1 –
         
         Original language: English.
      
      2 –
         
         The first Opinion was published on 6 May 2003, on closure of the oral procedure.
            
         
      
      3 –
         
         These concern seven orders of 26 September 2001, relating to seven disputes being heard by that court. The seven cases were
            joined during the written procedure by order of 7 November 2001 of the President of the Court of Justice.
            
         
      
      4 –
         
         Only the plaintiffs in the main proceedings and the Commission filed observations during the written procedure.
            
         
      
      5 –
         
         Specifically, to the Sixth Chamber.
            
         
      
      6 –
         
         Council Directive of 23 November 1993 (OJ 1993 L 307, p. 18).
            
         
      
      7 –
         
         As stated in paragraph 6 of that Order.
            
         
      
      8 –
         
         The German Government, in its response to this Court’s question, states that, from 1 January 2004, the entry into force of
            an amendment to the Law on working time has meant that workers must be compensated for any extension of working time over
            10 hours. The Law was amended as a result of the judgment of this Court in Case C-151/02 Jaeger [2003] ECR I-0000, which holds at paragraph 71 that on-call duty performed by a doctor where he is required to be physically
            present in the hospital is in its totality working time for the purposes of Directive 93/104, with the result the Community
            provision precludes legislation of a Member State which classifies as rest periods an employee’s periods of inactivity in
            the context of such on-call duty. 
            
         
      
      9 –
         
         .Jaeger, cited above.
            
         
      
      10 –
         
         Case C-334/92 Wagner Miret [1993] ECR I-6911, paragraph 20.
            
         
      
      11 –
         
         Judgments in Case 152/84 Marshall [1986] ECR 723, paragraph 48 and Case C‑106/89 Marleasing [1990] ECR I-4135, paragraph 6.
            
         
      
      12 –
         
         Case 8/81 Becker [1982] ECR 53, paragraph 25; Case 103/88 Fratelli Costanzo [1989] ECR 1839, paragraph 29; Joined Cases C-246/94 to C-249/94 Cooperativa Agricola Zootecnica S. Antonio and Others [1996] ECR I-4373, paragraph 17; Case C-319/97 Kortas [1999] ECR I-3143, paragraph 21; and Case C-157/02 Reiser Internationale Transporte [2004] ECR I-0000, paragraph 22.
            
         
      
      13 –
         
         Case 14/83 Von Colson and Kamann [1984] ECR 1891, paragraph 26 and Case 222/84 Johnston [1986] ECR 1651, paragraph 53.
            
         
      
      14 –
         
         Judgments in Marleasing, paragraph 8 and Wagner Miret, paragraph 20; Case C‑91/92 Faccini Dori [1994] ECR I-3325, paragraph 26; and Case C-456/98 Centrosteel [2000] ECR I-6007, paragraph 16.
            
         
      
      15 –
         
         .Wagner Miret, paragraph 21. See Bernardeau, L.: ‘Clauses abusives: illicéité des clauses attributives de compétence et l’autonomie de
            leur contrôle judiciaire’, in Revue européenne de droit de la consommation, 2000, pp. 261 to 281, in particular p. 270: ‘L’obligation d’interprétation conforme qui découle du principe de la primauté
            du droit communautaire s’applique a fortiori lorsque la directive a été transposée’.
            
         
      
      16 –
         
         Some German legal thinking regards the national court as having jurisdiction, in order to comply with the aims of the Community
            directive, to overcome deficiencies in national law or even incompatibility between national and Community law, using an interpretation
            in conformity with directives. See Götz, V.: ‘Europäische Gesetzgebung durch Richtlinien – Zusammenwirken von Gemeinschaft
            und Staat’ in Neue Juristische Wochenschrift, 1992, p. 1854: ‘Über die Auslegung von Begriffen und Normen, die eine offensichtliche Kongruenz zwischen Richtlinie und
            staatlichem Umsetzungsrecht aufweisen, hinaus, kann richtlinienkonforme Auslegung in begrenztem Umfange die weitergehende
            Funktion erfüllen, Unzulänglichkeiten der staatlichen Gesetzgebung zu überbrücken oder der Richtlinie zu einem Anwendungsvorrang
            gegenüber solchen Bestimmungen des nationalen Rechts zu verhelfen, die nicht direkt umsetzungsbedingt sind, deren Anwendung
            aber im Bereich der Richtlinie mit dieser nicht zu vereinbaren wäre’. According to that line of thinking, the primacy of Community
            law extends to its interpretation, with the effect that the meaning given by the Court of Justice prevails over any other
            which may be given to the national provisions intended to implement the Community directive, which, it is argued, leads to
            a situation in which the national court could have to find national law to be contra legem, in order to ensure the effectiveness
            of the Community provision. One can cite, by way of example, Dendrinos, A.: Rechtsprobleme der Direktwirkung von EWG-Richtlinien, pp. 290-292, in particular, p. 290: ‘In diesem Punkt muss hervorgehoben werden, dass die Richtlinienbestimmungen Vorrang
            in der Auslegung haben. Dies bedeutet, dass den durch den EuGH ausgelegten Richtlinienvorschriften des Gemeinschaftsrechts
            für den Ausgangsfall Vorrang gegenüber der gegenteiligen einheimischen Interpretation einer mehrdeutigen zur Ausführung der
            Richtlinien ergangenen nationalen Norm gebührt. Hier spricht man von der unmittelbar wirkenden Auslegung. Aufgrund dieser
            Erkenntnis kommt man der Anerkennung der horizontalen unmittelbaren Wirkung ein Stück näher, da der nationale Richter wegen
            der vorrangigen Auslegung des EuGH gegebenenfalls nationales Recht contra legem auslegen muss, welches zur Umsetzung der Richtlinie
            ergangen ist und zugleich private Rechtsverhältnisse regelt’, and Brechmann, W.: Die Richtlinienkonforme Auslegung, pp. 160-166, in particular, p. 163, who refers to this view endorsed by several writers: ‘Die These von Dendrinos, dass
            eine richtlinienkonforme Auslegung auch eine Auslegung contra legem erlaube, ist jedoch keineswegs eine vereinzelte Sondermeinung,
            sondern sie wird von anderen Autoren der völkerrechtlichen Theorie vertreten’.
            
         
      
      17 –
         
         First Council Directive 68/151/EEC of 9 March 1968 on co-ordination 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
            (1), p. 41).
            
         
      
      18 –
         
         Judgment in Marleasing, cited above, paragraph 13. Curtin, D.: ‘Directives: the effectiveness of judicial protection of individual rights’, Common Market Law Review, 1990, pp. 709 to 739, in particular p. 724: ‘In Marleasing, the end result was that the Spanish tribunal was obliged to
            interpret the provisions of the Spanish Civil Code in a manner so as to preclude a declaration of nullity of a public limited
            company based on a ground different from those set out in Article 11 of the (unimplemented) first Company Directive. This
            means in effect that the obligation contained in a directive is placed on private parties, albeit after having been transformed, via judicial interpretation, into one of national law. In practice, this clever judicial
            strategy achieves, where the national law is at all open to interpretation, the same result as if a particular provision of
            that directive could be recognized as enjoying horizontal direct effects. In this manner, “horizontal” rights which are enshrined
            in directives can have the force of law as between individuals without a specific domestic legislative process and the primacy
            of Community law is assured’.
            
         
      
      19 –
         
         See the DEC-NAT database of the Court of Justice, II-Cour QP/01853-P1.
            
         
      
      20 –
         
         .Wagner Miret, cited above, paragraph 22.
            
         
      
      21 –
         
         Council Directive of 20 October 1980 on the approximation of the laws of the Member States relating to the protection of employees
            in the event of the insolvency of their employer (OJ 1987 L 283, p. 23), as amended by Council Directive 87/164/EEC of 2 March
            1987 (OJ 1980 L 66, p. 11). 
            
         
      
      22 –
         
         See the DEC-NAT database of the Court of Justice, II-Cour QP/02395-P1.
            
         
      
      23 –
         
         Judgment in Joined Cases C-240/98 to C-244/98 Océano Grupo Editorial and Salvat Editores [2000] ECR I-4941, paragraph 32.
            
         
      
      24 –
         
         Council Directive of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).
            
         
      
      25 –
         
         Craig, P. and Búrca, G.: EU Law. Text, cases and materials, Third Edition, Oxford University Press, p. 219: ‘This ruling does not declare that the Spanish court must decline jurisdiction
            by reading national law in the light of the Directive’s requirements, but it certainly encourages the national court to do
            this, by indicating that it should “favour” that interpretation if it is possible. And while such an interpretation of national
            law would not impose any legal obligation on Océano, it would deprive that company of any possible existing right under national
            law to enforce the consumer contract before the Barcelona court. While the defendant would not himself or herself have to
            “invoke” the right (since the defendant might well not appear before a court outside his or her domicile) that party would
            benefit from the terms of the directive even though it was not implemented, and the plaintiff company would suffer a legal
            disadvantage’; and Stuyck, J.: Common Market Law Review, 38, pp. 719 to 737, in particular, p. 737: ‘Océano means a further step in the Court’s case law on the role of the national
            judge in applying Community law, by construing a duty for the national courts to invoke of their own motion the unfair character
            … of a jurisdiction clause’. 
            
         
      
      26 –
         
         See the DEC-NAT database of the Court of Justice, II-Cour QP/03748-P1.
            
         
      
      27 –
         
         Case C-101/91 Commission v Italy [1993] ECR I-191, paragraph 24. See also Case 48/71 Commission v Italy [1972] ECR 529, paragraph 7.
            
         
      
      28 –
         
         Case C-441/93 Pafitis and Others [1996] ECR I-1347, paragraph 60.
            
         
      
      29 –
         
         Second Council Directive of 13 December 1976 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,
            in respect of the formation of public limited liability companies and the maintenance and alteration of their capital, with
            a view to making such safeguards equivalent (OJ 1976 L 26, p. 1).
            
         
      
      30 –
         
         On that occasion, the national court which had referred the question for a preliminary ruling rejected the interpretation
            of the Court of Justice and dismissed the action (DEC-NAT database of the Court of Justice, II-Cour QP/02610-P1). On appeal,
            the Greek court referred a new question for a preliminary ruling (II-Cour QP/03745-P1), which was withdrawn when the parties
            discontinued the case. This Court was thus denied the opportunity to rule on the refusal by the first instance court to apply
            its interpretation.
            
         
      
      31 –
         
         Case C-129/94 Ruiz Bernáldez [1996] ECR I-1829, paragraph 24.
            
         
      
      32 –
         
         Council Directive of 24 April 1972 on the approximation of the laws of Member States relating to insurance against civil liability
            in respect of the use of motor vehicles, and to the enforcement of the obligation to insure against such liability (OJ, English
            Special Edition 1972 (II), p. 360).
            
         
      
      33 –
         
         Second Council Directive of 30 December 1983 on the approximation of the laws of the Member States relating to insurance against
            civil liability in respect of the use of motor vehicles (OJ 1983 L 8, p. 17).
            
         
      
      34 –
         
         Tridimas, T.: ‘Black, white and shades of grey: horizontality of directives revisited’, in Yearbook of European Law, 21, 2001-2002, pp. 327 to 354, in particular, p. 352: ‘Bernáldez causes problems. It is clear that the insurance directives
            were relied upon to impose an obligation on a third party, i.e. the insurance company, which was not represented in the proceedings.
            The Court expressly held that Article 3(1) of the First Directive precludes an insurer from being able to rely on statutory
            provisions or contractual clauses to refuse to compensate third-party victims of an accident caused by the insured vehicle.
            How can this be distinguished from horizontal direct effect? The answer is with difficulty’.
            
         
      
      35 –
         
         See the DEC-NAT database of the Court of Justice, II-Cour QP/02722-P1.
            
         
      
      36 –
         
         Case C-180/95 Draehmpaehl [1997] ECR I-2195, paragraphs 37 and 43.
            
         
      
      37 –
         
         Council Directive of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards
            access to employment, vocational training and promotion, and working conditions (OJ 1976 L 39, p. 40).
            
         
      
      38 –
         
         See the DEC-NAT database of the Court of Justice (II-Cour QP/02961 P1). The Arbeitsgericht, Hamburg ordered the defendant
            company, in default of appearance in any stage of the proceedings, to pay the applicant DEM 11,100. Although the German decision
            of 29 April 1998 does not state reasons, as appears customary in this type of proceedings, one can assume that the amount
            relates to the three and a half months’ salary claimed by the plaintiff. According to information provided by the referring
            court, the judgment was not appealed. 
            
         
      
      39 –
         
         Council Directive of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial
            agents (OJ 1986 L 382, p. 17).
            
         
      
      40 –
         
         Case C-215/97 Bellone [1998] ECR I-2191, paragraph 18.
            
         
      
      41 –
         
         When it delivered judgment on 5 May 1999, the Tribunale Civile (District Civil Court), Bologna, took the view that the agency
            contract was valid and enforceable between the parties, upheld Mrs Bellone’s claim and ordered the company to pay her the
            amounts owing. In its statement of reasons it declared that the penalty established by the domestic regulations, consisting
            of the invalidity of the agency contract on the grounds of non-registration of the agent, was incompatible with Community
            law, that, in the event of incompatibility, the latter prevails over the law of Member States, and that judgments of the Court
            of Justice have direct effect, with the result that, in its view, the national legislation which made the validity of the
            contract conditional upon prior registration of the agent was not applicable (II-Cour QP/03475-P1).  I can point out, furthermore,
            that the DEC-NAT database of the Court of Justice contains several rulings of the Corte di Cassazione (Court of Cassation)
            which overturn decisions of the lower courts which had dismissed claims by commercial agents seeking payment of sums owed
            in performance of an agency contract on the grounds that they were not registered. See II-Cour IA/18784-A, II-Cour IA-22741-A
            and II-Cour IA/22749-A.
            
         
      
      42 –
         
         Cited above.
            
         
      
      43 –
         
         Cicero, The Republic, translation by Niall Rudd, Oxford World’s Classics, 1988, Book one, 3, p. 2.
            
         
      
      44 –
         
         Case C-168/95 Arcaro [1996] ECR I-4705, paragraphs 42 and 43.
            
         
      
      45 –
         
         Council Directive of 4 May 1976 on pollution caused by certain dangerous substances discharged into the aquatic environment
            of the Community (OJ 1976 L 129, p. 23).
            
         
      
      46 –
         
         Council Directive of 26 September 1983 on limit values and quality objectives for cadmium discharges (OJ 1983 L 291, p. 1).
            
         
      
      47 –
         
         Case 14/86 Pretore de Salò [1987] ECR 2545, paragraph 20; and Case 80/86 Kolpinghuis Nijmegen [1987] ECR 3969, paragraph 13.
            
         
      
      48 –
         
         There is a body of legal thinking which takes the same view. See, by way of example, Faro, S: ‘la Cassazione torna a pronunciarsi
            sull’efficacia diretta “orizzontale” delle direttive comunitarie’, in Rivista italiana di diritto pubblico comunitario, 1998 pp. 1398-1407, in particular, pp. 1403 and 1404: ‘la previsione di questo obbligo [interpretare la norma nazionale
            in coerenza con quella contenuta in una directiva comunitaria] comporta, di fatto, il riconoscimento di un effetto orizzonntle
            “indiretto” delle direttive, indiretto in quanto la norma che trova applicazione al rapporto tra i privati è, in ogni caso,
            la norma nazionale’; Tesauro, G.: Diritto Comunitario, terza edizione, CEDAM, 2003, pp. 162 to 184, in particular, p. 180: ‘I risultati pratici cui si previene con l’obbligo di interpretare il
            diritto nazionale in modo conforme alla norma di una directiva … non sono molto diversi da quelli che si realizzerebbero con
            l’affermazione pura e semplice dell’effetto orizzontale e verticale. Non e caso, dunque, la Corte ha talvolta trasformato
            il problema della portata dell’effetto directto della directiva in un problema di interpretazione conforme’; Rodiere, P.:
            ‘Sur les effets directifs du droit (social) communautaire’, in Revue trimestrielle de droit européen, 27 (4), 1994, pp. 565-586, in particular, p. 577: ‘L’opération consiste, donc, à substituer une norme de droit national
            conforme au droit communautaire à celle qui ne l’était pas. La norme à appliquer a un caractère national, le rôle du droit
            communautaire se borne à en opérer la désignation. Double avantage: peu importe qu’une directive communautaire ne puisse créer
            directement des obligations pesant sur les particuliers, puisque on le demande au droit national’; Timmermans, C.W.A.: ‘Directives:
            their effect within the national legal systems’, in Common Market Law Review, 16, 1979, pp. 533 to 555, in particular, p. 551: ‘I do not exclude the possibility that, once the process of legal review
            of national law with regard to directives has become common practice, the Court of Justice will accept and even require such
            review also with regard to directives relating to horizontal relationships’; and Bach, A.: Juristenzeitung, 1990, p. 1113: ‘Die richtlinienkonforme Auslegung ebenso wie die Nichtanwendung gemeinschaftswidriger Normen können dabei
            erhebliche Auswirkungen auf die Rechte und Pflichten einzelner haben. Objektive Wirkungen sind durchaus auch zu Lasten Privater
            möglich’.
            
         
      
      49 –
         
         Advocate General Alber favoured a solution of this nature in paragraphs 25 to 31 of his Opinion in Collino and Chiappero (Case C-343/98 Collino and Chiappero [2000] ECR I-6659), were the national court to take the view that the dispute was between private persons. In replying to
            the questions referred for a preliminary ruling, the Court of Justice left it to the national court to determine whether the
            workers could rely on the provisions of Council Directive 77/187/EEC of 14 February 1977 on the approximation of the laws
            of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses
            or parts of businesses (OJ 1977 L 61, p. 26), against a company which had been charged, by concession, with providing public
            telecommunications services, as successor to a public body which had previously provided those services.
            
         
      
      50 –
         
         See also the Opinion of Advocate General Jacobs in Centrosteel, cited above, paragraph 35, and that of Advocate General Geelhoed in Case C-62/00 Marks & Spencer [2002] ECR I-6325, paragraph 42.
            
         
      
      51 –
         
         Cited above.
            
         
      
      52 –
         
         Case C‑194/94 CIA Security International [1996] ECR I-2201.
            
         
      
      53 –
         
         Case C‑443/98 Unilever [2000] ECR I-7535.
            
         
      
      54 –
         
         López Escudero, M.: ‘Efectos del incumplimiento del procedimiento de información aplicable a las reglamentaciones técnicas
            (Directiva 83/189/CEE)’, in Revista de Instituciones Europeas, 1996, pp 839 to 861, in particular, p. 861: ‘los particulares no pueden deducir derecho alguno de actos normativos comunitarios
            que, como la Directiva 83/189, establecen un procedimiento de información en el seno del cual las Instituciones comunitarias
            carecen de poder para determinar la compatibilidad con el derecho comunitario de las reglamentaciones nacionales notificadas.
            Por ello, considero que la utilización del principio del efecto directo para garantizar la efectividad de este tipo de normas
            comunitarias no es conveniente. El efecto directo no debe ser utilizado jurisprudencialmente para “enmendar” las deficiencias
            surgidas en la aplicación de cualquier tipo de normativa comunitaria’.
            
         
      
      55 –
         
         Council Directive of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards
            and regulations (OJ 1983 L 109, p. 8).
            
         
      
      56 –
         
         Cited above.
            
         
      
      57 –
         
         .Unilever, also cited above, paragraphs 50 and 51.
            
         
      
      58 –
         
         Cited above.
            
         
      
      59 –
         
         Council Directive of 26 July 1971 concerning the coordination of procedures for the award of public works contracts (OJ, English
            Special Edition 1971 (II), p. 682). 
            
         
      
      60 –
         
         Tridimas, T., op. cit., p. 334: ‘Although [the Court] did not examine specifically the implications of allowing reliance on
            the directive, it did not consider as impermissible horizontal effect the adverse legal implications that would inevitably
            flow for the successful tenderer by the annulment of the tendering authority’s decision’.
            
         
      
      61 –
         
         Case C-435/97 World Wildlife Fund and Others [1999] ECR I-5613, paragraphs 69 to 71.
            
         
      
      62 –
         
         Case C-201/94 Smith & Nephew and Primecrown [1996] ECR I-5819, paragraph 39.
            
         
      
      63 –
         
         Council Directive of 26 January 1965 on the approximation of provisions laid down by Law, Regulation or Administrative Action
            relating to proprietary medicinal products (OJ, English Special Edition, 1965-1966 p. 24).
            
         
      
      64 –
         
         Case C-201/02 Wells [2004] ECR I-0000, paragraph 57.
            
         
      
      65 –
         
         Case 106/77 Simmenthal [1978] ECR 629, paragraph 17.
            
         
      
      66 –
         
         See Simon, D. ‘La directive européenne’, Dalloz 1997, p. 95: ‘l’obligation d’écarter les règles nationales contraires au droit
            communautaire s’impose au juge national en vertu du principe de primauté, y compris si la norme en cause est dépourvue d’effet
            direct’.
            
         
      
      67 –
         
         See Case 6/64 Costa v ENEL [1964] ECR 1141, in particular pp. 1158 to 1160.
            
         
      
      68 –
         
         Case 148/78 Ratti [1979] ECR 1629, paragraphs 20 to 24. In paragraph 9 of his Opinion in Marleasing, Advocate General Van Gerven stated that: ‘Furthermore, as part of Community law, the directive … in principle takes precedence
            over all provisions of national law. That is true in particular in the case of national provisions which … relate to the branch
            of the law covered by the directive’. 
            
         
      
      69 –
         
         Prechal, S.: Directives in European Community Law. A Study of Directives and Their Enforcement in National Courts, Clarendon Press Oxford, 1995, p. 229: ‘The domestic courts are here operating within the context of Community law. For this
            very reason Community law and, specially Article 5 of the Treaty, may not only require them to do something positive but may
            also stop them if they should transcend the limits of what is considered as acceptable under Community law’. 
            
         
      
      70 –
         
         Lenaerts, K.: ‘L’égalité de traitement en droit communautaire. Un principe unique aux apparences multiples’, in Cahiers de droit européen, 1991, pp. 3 to  41, in particular, p. 38: ‘Le juge aura généralement tendance à interpréter la norme nationale concernée
            dans le sens de la directive et de garantir de la sorte l’effet utile de la directive dans les relations entre particuliers’;
            Morris, P.E.: ‘The direct effect of directives —some recent developments in the European Court— ‘in The journal of business law, 1989, May, pp. 233 to 245, in particular, p. 241: ‘if national judiciaries respond positively to this exhortation something
            approaching horizontal direct effect may be achieved by a circuitous route. The substantive contents of directives could gradually
            percolate into private legal relationships without the problems which investing directives with horizontal direct effect would
            bring in its train, most notably the erosion of legal certainty, the risk of a national judicial revolt and the distortion
            of article 189’.
            
         
      
      71 –
         
         Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur and Factortame and Others [1996] ECR I-1029, paragraph 22.
            
         
      
      72 –
         
         A number of writers stress that certain areas of law, including employment and consumer law, which govern relations between
            individuals, display a degree of flexibility such as to allow, without difficulty, an interpretation of national provisions
            in the light of Community law which can contribute to their development. See Rodríguez Iglesias, G. C. and Riechenberg, K.:
            ‘Zur richtlinienkonformen Auslegung (Ein Ersatz für die fehlende horizontale Wirkung?)’, Festschrift für Ulrich Everling, vol. II, p. 1229: ‘Es gibt Rechtsgebiete, die so flexibel ausgestaltet sind, dass eine Auslegung der einschlägigen innerstaatlichen
            Vorschriften im Lichte des Gemeinschaftsrechts ohne größere Schwierigkeiten möglich ist. Ein gutes Beispiel für eine Rechtsgebiet,
            das in allen Mitgliedstaaten in den letzten Jahren tiefgreifende Änderungen erfahren hat, ist das Arbeitsrecht. Auch jüngere
            Rechtsgebiete, wie das Verbraucherschutzrecht, dürften für eine solche Rechtsfortbildung offen sein’.
            
         
      
      73 –
         
         Cited above.