United Antwerp Maritime Agencies (Unamar) NV v Navigation Maritime Bulgare.
Date: 2013-10-17
28. Secondly, despite the fact that the question of jurisdiction to hear the dispute in the main proceedings was debated before the courts at first instance and on appeal, the referring court has referred to the Court of Justice only the question of the law applicable to the contract, thus taking the view that it has jurisdiction to decide the dispute on the basis of Article II(3) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, signed in New York on 10 June 1958. In that regard, it must be recalled that, according to the settled case-law of the Court, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (Case C‑470/11 Garklans [2012] ECR I‑0000, paragraph 17 and the case-law cited). The Court therefore intends to answer the question referred without prejudice to the question of jurisdiction.
30. In that regard, it must be observed that, although the question asked by the referring court refers not to a contract for the sale or purchase of goods but to an agency contract for the operation of a shipping service, the fact remains that, when transposing the provisions of that directive into national law, the Belgian legislature decided to apply the same treatment to both types of situation (see, by analogy, Case C‑3/04  Poseidon Chartering [2006] ECR I‑2505, paragraph 17, and Case C‑203/09 Volvo Car Germany  [2010] ECR I‑10721, paragraph 26). Moreover, as mentioned in paragraph 24 of the present judgment, the Bulgarian legislature has also decided to apply the rules of the directive to commercial agents with authority to negotiate and conclude transactions, such as the agent at issue in the case in the main proceedings.
31. According to settled case-law, where domestic legislation adopts the same solutions as those adopted in Community law in order, in particular, to avoid discrimination or any distortion of competition, it is clearly in the interest of the European Union that, in order to forestall future differences of interpretation, provisions or concepts taken from European Union law should be interpreted uniformly, irrespective of the circumstances in which they are to apply (see Case C-28/95 Leur-Bloem [1997] ECR I-4161, paragraph 32, and Poseidon Chartering , paragraph 16 and the case-law cited).
36. The Court has already had occasion to hold that Directive 86/653 aims to coordinate the laws of the Member States as regards the legal relationship between the parties to a commercial agency contract (Case C‑215/97 Bellone [1998] ECR I‑2191, paragraph 10; Case C‑465/04 Honyvem Informazioni Commerciali [2006] ECR I‑2879, paragraph 18; and Case C‑348/07 Semen  [2009] ECR I‑2341, paragraph 14).
37. It is apparent from the second recital in the preamble to the Directive that the harmonising measures laid down by the Directive are intended, inter alia, to eliminate restrictions on the carrying-on of the activities of commercial agents, to make the conditions of competition within the Community uniform and to increase the security of commercial transactions (Case C‑381/98 Ingmar GB [2000] ECR I‑9305, paragraph 23).
38. It is also clear from settled case-law that, inter alia, national provisions subjecting the validity of an agency contract to a condition of entry in the register provided for that purpose are capable of significantly hindering the conclusion and operation of agency contracts between parties in different Member States and therefore from that point of view are contrary to the aims of Directive 86/653 (see, to that effect, Bellone , paragraph 17).
39. In that regard, Articles 17 and 18 of the directive are of crucial importance, as they define the level of protection which the European Union legislature considered reasonable to grant commercial agents in the course of the creation of the single market.
40. As the Court has already held, the regime established by Directive 86/653 for that purpose is mandatory in nature. Article 17 of that directive requires Member States to put in place a mechanism for providing compensation to the commercial agent after the termination of a contract. Admittedly, that article allows the Member States to choose between indemnification and compensation for damage. However, Articles 17 and 18 of the directive prescribe a precise framework within which the Member States may exercise their discretion as to the choice of methods for calculating the indemnity or compensation to be granted.  Moreover, under Article 19 of the directive, the parties may not derogate from them to the detriment of the commercial agent before the contract expires ( Ingmar GB , paragraph 21).
46. However, it must be pointed out that the possibility of pleading the existence of mandatory rules under Article 7(2) of the Rome Convention does not affect the obligation of the Member States to ensure the conformity of those rules with European Union law. According to the case-law of the Court, the fact that national rules are categorised as public order legislation does not mean that they are exempt from compliance with the provisions of the Treaty; if it did, the primacy and uniform application of European Union law would be undermined. The considerations underlying such national legislation can be taken into account by European Union law only in terms of the exceptions to European Union freedoms expressly provided for by the Treaty and, where appropriate, on the ground that they constitute overriding reasons relating to the public interest (Joined Cases C‑369/96 and C‑376/96 Arblade and Others  [1999] ECR I‑8453, paragraph 31).
47. In that connection, it must be recalled that the classification of national provisions by a Member State as public order legislation applies to national provisions compliance with which has been deemed to be so crucial for the protection of the political, social or economic order in the Member State concerned as to require compliance therewith by all persons present on the national territory of that Member State and all legal relationships within that State ( Arblade and Others , paragraph 30, and Case C-319/06 Commission v Luxembourg [1999] ECR I-4323, paragraph 29).
49. Thus, to give full effect to the principle of the freedom of contract of the parties to a contract, which is the cornerstone of the Rome Convention, reiterated in the Rome I Regulation, it must be ensured that the choice freely made by the parties as regards the law applicable to their contractual relationship is respected in accordance with Article 3(1) of the Rome Convention, so that the plea relating to the existence of a ‘mandatory rule’ within the meaning of the legislation of the Member State concerned, as referred to in Article 7(2) of that convention, must be interpreted strictly.
50. It is thus for the national court, in the course of its assessment of whether the national law which it proposes to substitute for that expressly chosen by the parties to the contract is a ‘mandatory rule’, to take account not only of the exact terms of that law, but also of its general structure and of all the circumstances in which that law was adopted in order to determine whether it is mandatory in nature in so far as it appears that the legislature adopted it in order to protect an interest judged to be essential by the Member State concerned. As the Commission pointed out, such a case might be one where the transposition in the Member State of the forum, by extending the scope of a directive or by choosing to make wider use of the discretion afforded by that directive, offers greater protection to commercial agents by virtue of the particular interest which the Member State pays to that category of nationals.