CJEC, 5th chamber, March 6, 2003, No C-485/01

THE COURT (Fifth Chamber)

1. By order of 6 December 2001, received at the Court on 14 December 2001, the Tribunale civile e penale di Trento (Civil and Criminal Court, Trento) referred to the Court for a preliminary ruling under Article 234 EC a question on the interpretation of Council Directive 86-653-EEC 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) ('the Directive').

2. That question has arisen in a dispute between Ms Caprini and the Conservatore del registro delle imprese di Trento (Registrar of undertakings in Trento) (Italy) concerning the obligation on commercial agents to enrol in that register.

Legal framework

3. Article 1(1) of the Directive provides for harmonisation measures which are to apply to the laws, regulations and administrative provisions of the Member States governing the relations between commercial agents and their principals.

4. According to the second and third recitals in its preamble, the Directive seeks to protect commercial agents in their relations with their principals, to promote the security of commercial transactions, and to facilitate trade in goods between Member States by harmonising their legal systems within the area of commercial representation. To those ends, the Directive establishes, inter alia, rules governing the rights and obligations of the parties (Articles 3 to 5), the remuneration of commercial agents (Articles 6 to 12) and the conclusion and termination of agency contracts (Articles 13 to 20).

5. Italian Law No 204 of 3 May 1985 (GURI No 119 of 22 May 1985, p. 3623) provides for the establishment of a register of commercial agents and representatives in which all persons wishing to pursue such an activity are obliged to enrol under pain of an administrative penalty. Having been asked by an Italian court whether the Directive precludes the provisions of that Law which make the validity of agency contracts subject to enrolment of commercial agents in a register provided for that purpose, the Court ruled, in paragraph 14 of its judgment in Case C-215-97 Bellone [1998] ECR I-2191, that it follows from Article 13(2) of the Directive - which permits Member States to 'provide that an agency contract shall not be valid unless evidenced in writing' - that the Directive starts from the principle that such a contract is not subject to any formal requirement, while leaving it open to the Member States to require it to be in writing, and that, by referring only to the requirement that the contract be in writing in order to be valid, the Community legislature dealt exhaustively with the matter in that provision. Member States may therefore not impose any condition other than requiring that a written document be drawn up. From this the Court concluded, in paragraph 15 of its judgment in Bellone, that entry of the agent in a register cannot be accepted as a condition for the validity of the contract.

6. Article 2188 of the Italian Civil Code ('the Civil Code') provides for the establishment of a register of undertakings. Certain types of undertakings must be entered in that register. Under Article 2083 of the Civil Code, however, registration is optional for other types of undertakings, including commercial agents and representatives. It appears from the documents in the main proceedings that, in the case of the latter, registration is in particular in response to a need for documentation and publicity. Article 2084 of the Civil Code states that the conditions governing the operation of various categories of undertakings must be laid down by law. Article 2189 of the Civil Code provides that the registrar's office must verify that 'the legal requirements for entry in the register are met'.

The dispute in the main proceedings and the question submitted for preliminary ruling

7. According to the documents relating to the main proceedings, Ms Caprini submitted a request on 10 April 2001 to the office of the registrar of undertakings in Trento for enrolment in the register of undertakings as a commercial agent for the sale of advertising space, in the category of 'small-scale commercial operators'. Ms Caprini was not at that time registered in the register of commercial agents and representatives.

8. By decision of 18 October 2001, the registrar of undertakings turned down Ms Caprini's request for registration on the ground that she was not enrolled in the register of commercial agents and representatives. Inasmuch as, according to the registrar, enrolment in the latter register was a condition governing the exercise of an activity as an undertaking within the meaning of Article 2084 of the Civil Code, such enrolment also had to be treated as being a legal condition of registration in the register of undertakings for the purposes of Article 2189 of the Civil Code, compliance with which the registrar must verify before an entry can be made in that register.

9. The Giudice del registro (the court responsible for supervising the register), to which Ms Caprini appealed against that decision, dismissed her action by decision of 2 November 2001. Ms Caprini appealed against that latter decision to the Tribunale civile e penale di Trento.

10. Citing the above judgment in Bellone, the Tribunale raises the question of the indirect effect which that judgment may have on registration in the register of undertakings. It states that the Court ruled in that judgment on the incompatibility of the provisions of Law No 204 with the Directive in regard to the invalidity of agency contracts on the ground that those national provisions infringed a mandatory provision of the Directive. In the dispute at present before the Tribunale, that court takes the view that it is necessary to establish whether there is also such an incompatibility with regard to the same national provisions where, by requiring any person engaged in, or proposing to engage in, the activity of a commercial agent to enrol in the register of commercial agents and representatives, those provisions indirectly make registration in the register of undertakings subject to that condition.

11. In those circumstances, the Tribunale civile e penale di Trento decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

'Does Council Directive 86-653-EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents preclude a rule of national law which makes the enrolment of a commercial agent in the register of undertakings conditional on that agent's name having been entered in an appropriate register?'

The question submitted for preliminary ruling

Arguments of the parties

12. Ms Caprini argues that this question should be answered in the affirmative. She submits that, in the absence of registration in the register of undertakings, Italian chambers of commerce will refuse to issue the certification enabling commercial agents to comply with the fiscal and social regulations which require presentation of such certification for the commencement and proper conduct of their activity. An agent cannot therefore validly perform the contract concluded within the framework of that activity with his principal if he does not have the certification in question and the national provisions relating to the register of undertakings are for that reason at variance with the Directive.

13. Regard being had to the fact that registration in the registration of undertakings has merely a declaratory function, the registrar is under an obligation to declare, in regard to third persons, the independent status of a person as a commercial agent, subject to evidence, which the latter is required to provide, that the activity of commercial agent is being exercised on the basis of a written contract. In the case in the main proceedings, such evidence was fully provided by submission of the agency contract, with the result that the registrar ought not to have refused the registration requested.

14. According to the Commission, the Directive does not preclude the national rules in issue in the main proceedings inasmuch as the fact that the optional registration of a commercial agent in the register of undertakings is made subject to that commercial agent's enrolment in the register of commercial agents and representatives does not compromise the validity of agency contracts and does not weaken the legal protection which the agent enjoys under the Directive.

15. In the Commission's view, the question submitted touches on a problem which is not directly connected to the validity of the actions performed by commercial agents. In so far as entry in the register of undertakings is optional for commercial agents, the latter can validly sign agency contracts without being registered in the register of undertakings. The only mandatory condition that follows from the Directive is the guarantee that national rules must not compromise the validity of agency contracts and, more generally, that such rules must not weaken the legal protection which the commercial agent enjoys by virtue of the Directive itself.

Findings of the Court

16. It is true that the Court held, in paragraphs 14 to 18 of Bellone, that, in view of the protection provided by the Directive, as set out in the second and third recitals in its preamble, the registration of a commercial agent in a register provided for that purpose cannot be accepted as a condition governing the validity of the contract which that agent concludes with his principal.

17. In paragraph 11 of Bellone, however, the Court held that the Directive does not deal with the question, as such, of registration of commercial agents but that it is left to the Member States to require entry in the appropriate register if they consider it expedient so to do in order to satisfy certain administrative needs.

18. The Directive does not therefore, in principle, preclude Member States from maintaining registers in which commercial agents must or may register, including a register of undertakings such as that in issue in the main proceedings.

19. It is only when the consequences of non-registration have an adverse effect on the protection which the Directive confers on commercial agents in relations with their principals that such non-registration becomes relevant. National provisions such as those in issue in the main proceedings, which state that an agent who is not enrolled in the register of commercial agents and representatives cannot be registered in the register of undertakings do not, according to the information provided by the national court, appear to affect the validity of the agency contract or otherwise have a bearing on the relations between the parties to that contract. It is a matter for the national court to determine, in the light of the specific circumstances, whether that is indeed the case.

20. The answer to the question submitted must therefore be that, on a proper reading, the Directive does not preclude national legislation from making registration of a commercial agent in the register of undertakings subject to that agent's enrolment in a register provided for that purpose, on condition that non-registration in the register of undertakings does not affect the validity of an agency contract which that agent has concluded with his principal or that the consequences of such non-registration do not adversely affect in any other way the protection which that directive confers on commercial agents in their relations with their principals.

Costs

21. The costs incurred by the Commission, which has submitted observations to the Court, are not recoverable. As these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Fifth Chamber),

in answer to the question referred to it by the Tribunale civile e penale di Trento by order of 6 December 2001, hereby rules:

On a proper reading, Council Directive 86-653-EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents does not preclude national legislation from making registration of a commercial agent in the register of undertakings subject to that agent's enrolment in a register provided for that purpose, on condition that non-registration in the register of undertakings does not affect the validity of an agency contract which that agent has concluded with his principal or that the consequences of such non-registration do not adversely affect in any other way the protection which that directive confers on commercial agents in their relations with their principals.