8 Colum. J. Eur. L. 293 (2002)
Tim Corthaut. Assistant, Institute for European Law, KU Leuven.
The ECJ has still not granted horizontal direct effect to directives. The following analysis of the recent cases of Océano,i Bellone and Centrosteel will try to shed some light on several difficulties that arise when judges nonetheless try to give some effect to a directive, which has not been transposed in a timely manner, governing the relation between individuals.
I. JOINED CASES C-240/98 TO C-244/98 OCÉANO GRUPO EDITORIAL SA V. ROCÍO MURCIANO QUINTERO AND SALVAT EDITORE SA V. JOSÉ M.SÀNCHEZ ALCON PRADES ET AL.
This case is the result of a request for a preliminary ruling by the Juzgado de Primera Instancia (Court of First Instance) from Barcelona. The judge was confronted with several cases initiated by two companies, Octano Grupo Editorial SA and Salvat Editores SA, against several consumers regarding the deferred payment terms of encyclopedias. Under Spanish procedural law, those cases can be dealt with through summary proceedings. The plaintiffs initiate their case with the judge and the court will subsequently alert the defendants and invite them to appear.
In this case however, notice of the claims was not served on the defendants since the national court had doubts as to whether it had jurisdiction over the actions in question.
Reason for this doubt was the fact that its jurisdiction was based on a clause in the contract directing all actions at the seat of the plaintiff companies. The judge was of the opinion that such a jurisdiction clause was unjust and unfair. Therefore, he referred the question whether he could refuse to apply this provision of his own motion on the basis of Council Directive 93/13/EEC on unfair terms in consumer contracts to the ECJ. This Directive had not yet been transposed into Spanish law at the time of the contract. Though there was some earlier Spanish consumer protection law, it was far from obvious that this law could be read as requiring judges to refuse to apply jurisdiction clauses of their own motion. The referring judge however noted that at least part of the case law in Spain had found such jurisdiction clauses unjust. The Directive was finally transposed in 1998 at a time when the proceeding was already pending.
The facts of both cases are nearly identical. The plaintiffs had been active as a commercial agent for the defendant companies. At the termination of their contract, they sued the defendant companies for various indemnities under the contract. The defendant companies, however, objected on the basis that according to Italian law such contracts should have been registered, which they were not. The Italian jurisprudence considered this procedural requirement to be of a fundamental nature. Any agency contract not registered is therefore void and the unregistered agent barred from bringing proceedings.
The referring judges, however, wanted to know whether this interpretation was not in breach of Directive 86/653/EEC on the coordination of the laws of the Member States relating to self-employed commercial agents, in which there was no mention of this requirement, and how such an inconsistency should be dealt with.
Opinions and Judgments
Advocate General Cosmas in Bellone was of the opinion that the Directive at issue contained all constituent elements of the agency contract, prohibiting the Member States of adding additional criteria. He considered that interpreting national law in a way consistent with the directive could solve the issue.40 The Italian judge should, in his view, be instructed – in line with the Marleasing case – to adopt a new interpretation of Italian law that would not prevent the plaintiffs from bringing their action. The ECJ, on the other hand, limited itself to an interpretation of the Directive consistent with the approach by the Advocate General, but without any reference to the Marleasing reasoning. The Court concluded, “the Directive precludes a national rule which makes the validity of an agency contract conditional upon the commercial agent being entered in the appropriate register.”43 In this way it appeared as if the Court wanted to have the Directive itself directly applied in the relationship between the parties, thus actually giving horizontal direct effect to a directive. This result would have been quite revolutionary. The ECJ had the opportunity to clarify its position in a similar case in Centrosteel. The national court, confronted with the blunt statement by the Court in Bellone, did not see how this judgment could be reconciled with the non-horizontal effect of non-implemented directives. The judge therefore suggested an approach based on the provisions on the freedom of establishment in the Treaty itself.
Neither Advocate General Jacobs nor the ECJ took up his suggestion. However, they spelled out the reasoning in Marleasing – as reaffirmed in Océano – again, on the basis that, in the meantime, the Italian Corte Suprema di Cassazione (the Italian Supreme Court of Cassation) had changed its interpretation of Italian law, bringing it in line with the judgment in Bellone. As a result, the national judge was instructed to follow such an interpretation of Italian law as is consistent with the Directive. This time the Court carefully avoided anything that could have been read as allowing for horizontal direct effect.