Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. On 12 December 1977 the Council of the European Communities issued, pursuant to Article 57 of the EEC Treaty, Directive 77/780/EEC on the coordination of laws, regulations and administrative provisions relating to the taking up and the pursuit of the business of credit institutions (Official Journal 1977, L 322, p. 30). The directive constituted the first stage towards achieving freedom of establishment of credit institutions and the liberalization of banking services and set out (a) to eliminate the most obstructive differences between the laws of the Member States as regards the rules to which these institutions are subject (second recital in the preamble) and (b) to introduce common requirements for the grant of authorization to pursue the business of ą credit institution (eighth recital in the preamble). Once those objectives have been attained each State should be in a position to provide for Overall supervision of the activities of the credit institutions no matter where they are operating in the Community (third recital in the preamble; see also the Court's judgment of 11 December 1985 in Case 110/84 Municipality of Hillegom v Cornelius Hillenius [1985] ECR 3947 at p. 3962, paragraph 23 et seq.).

2. The facts are as follows. Italo Bullo and Francesco Bonivento, employees of the Banca Agricola Popolare of Cavarzere (province of Venice), were charged with the offence of misappropriating private funds (Article 315 of the Italian Criminal Code) for having granted loans of an amount higher than that laid down in the relevant rules of the Banca d'Italia (Italian central bank) and of the Italian Treasury Ministry. Article 315 of the Italian Criminal Code provides that a public official or a person responsible for a public service who appropriates for himself or, in any way, diverts for the profit of himself or a third party money... not belonging to the public administration of which he was in possession by virtue of his office or service shall be punished by a term of imprisonment of from three to eight years ... .

3. In thé course of the proceedings before the Court of Justice written observations have been submitted by the accused, the Italian Government and the Commission of the European Communities. The accused consider that to classify employees of private banks as persons responsible for a public service gives the courts the power directly to supervise the activities of those institutions and precludes any discretion in their administration because it assigns criminal-law importance to contracts which should be regarded as lawful in so far as they take place in the context of a private undertaking. Indeed, in their view such checks and constraints are incompatible with the entrepreneurial nature of the business of a credit institution; hence they impede the implementation of the objectives pursued by the directive and conflict with the freedom of establishment and freedom of competition guaranteed by the Treaty.

4. As has been seen, the approximation of legislation effected by the directive is concerned with the credit institution, that is to say an undertaking whose business is to receive deposits or other repayable funds from the public and to grant credits for its own account (first indent of Article 1). Power to carry out such activities is conditional on an instrument issued ... by the authorities of the Member States (second indent of Article 1), the issue of which is dependent on a series of requirements (Article 3). The paramount consideration of the directive as a whole is the prohibition of any discriminatory treatment vis-à-vis credit institutions on the basis of nationality or of the fact that an undertaking is not established in a Member State where the services are provided (first recital in the preamble).

5. In the light of the foregoing considerations I propose that the Court should answer the question referred to the Court of Justice for a preliminary ruling by the Corte d'Appello, Venice, by order of 15 April 1985 in the criminal proceedings against Italo Bullo and Francesco Bonivento as follows:

1 Translated from the Italian.