Judges M Safjan, N Piçarra, N Jääskinen, M Gavalec
Advocate General T Ćapeta
The applicant, a commercial agent, concluded a commercial agency contract in 1998 with the principal, the legal predecessor of the defendant, a Czech company (hereinafter “the principal”), whereby the agent received one-off commission payments for each of the contracts he concluded for the principal. Although the contract was terminated in March 2010, that date was exceeded in respect of 155 new subscriptions and 276 amendments to existing subscriptions for contracts concluded in 2008 and 2009, for which the agent received payment of the corresponding commission from the principal. The agent was of the view, however, that he was owed an indemnity by the principal due to him under Czech law transposing article 17(2)(a) of Council Directive 86/653/EEC since he had it brought in new customers or significantly increased the volume of business with existing customers and the principal continued to derive substantial benefits from the business with such customers. Under the second indent of article 17(2)(a) the payment of an indemnity had to be equitable having regard to all the circumstances and, in particular, the “ commission lost by the commercial agent on the business transacted with such customers”. The agent’s claim before a Prague district court was dismissed. On the agent’s subsequent appeal, the Supreme Court, Czech Republic, stayed the proceedings and referred questions for preliminary ruling to the Court of Justice of the European Union asking, in essence, whether article 17(2)(a) of Directive 86/653 meant that: (i) the commission which the agent would have received in the event of a hypothetical continuation of the agency contract, in respect of transactions which would have been concluded after the termination of that contract with new customers which were transferred to the principal before that termination, or with customers with whom the agent significantly increased the volume of business before that termination, had to be taken into account in determining the indemnity; and (ii) the payment of one-off commissions excluded, from the calculation of the indemnity, the commission lost by the agent resulting from transactions carried out by the principal, after the termination of the agency contract, with new customers which that agent brought to the principal before that termination, or with customers with whom the agent significantly increased the volume of business before that termination.
On the reference—
Held, (1) the “commission lost by the commercial agent”, within the meaning of the second indent of article 17(2)(a) of Directive 86/653, was that which the commercial agent should have received if the agency contract had continued and corresponded to the benefits accruing to the principal which persisted after termination of the contract and which resulted from commercial relations established or developed significantly by that agent before the termination. Therefore, the commission which the commercial agent would have received in the event of a hypothetical continuation of the agency contract, in respect of transactions which would have been concluded after the termination of that contract with new customers which that agent brought to the principal before that termination, or with customers with whom it significantly increased the volume of business before that termination, had to be taken into account in determining the indemnity provided for in article 17(2). Such an interpretation was supported by the context of article 17(2)(a) and the objectives pursued by Directive 86/653 (judgment, paras 46–48, 56, 60, operative part, para 1).
(2) Since the second indent of article 17(2)(a) of Directive 86/653 required that the amount of the indemnity be calculated equitably taking into account all the circumstances, the “commission lost by the commercial agent”, within the meaning of that provision, was only one factor among others to be taken into account in assessing the equitable nature of the indemnity. The choice of a certain type of commission, such as, for example, one-off commission payments, could not therefore call into question the right to indemnity provided for in that provision. Accordingly, article 17(2)(a) of Directive 86/653 meant that the payment of one-off commissions did not exclude from the calculation of the indemnity the commission lost by the commercial agent resulting from transactions carried out by the principal, after the termination of the commercial agency contract, with new customers which it brought to the principal before that termination, or with customers with which it significantly increased the volume of business before that termination, where those commissions corresponded to flat-rate remuneration under any new contract concluded with those new customers or with existing customers of the principal, through the commercial agent (see, paras 62–63, 66, operative part, para 2).
D Rašovský for the agent.
L Duffek and M Olík for the principal.
T Machovičová, O Serdula, M Smolek and J Vláčil, agents, for the Czech Government.
J Möller, U Bartl, J Heitz and M Hellmann, agents, for the German Government.
L Armati, M Mataija and P Němečková, agents, for the European Commission.