# C_2005093EN.01001502.xml

| 16.4.2005 | EN | Official Journal of the European Union | C 93/15 |
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16.4.2005

EN

Official Journal of the European Union

C 93/15

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Reference for a preliminary ruling from the Tribunale di Livorno by order of that court of 22 December 2004 in Gentilini unberto v Dal Colle Industria Dolciaria S.p.A.

(Case C-78/05)

(2005/C 93/28)

Language of the case: Italian

Reference has been made to the Court of Justice of the European Communities by order of the Tribunale di Livorno (Italy) of 22 December 2004, received at the Court Registry on 17 February 2005, for a preliminary ruling in the proceedings between Gentilini unberto and Dal Colle Industria Dolciaria S.p.A.on the following questions:

| (a) | Given the content of Article 17 of Council Directive 86/653 of 18 December 1986 (1) on the coordination of the laws of the Member States relating to self-employed commercial agents, can Article 19 be interpreted as meaning that it is permissible for the national implementing legislation to provide that the indemnity owed to an agent is payable under a collective agreement binding on its signatories, without regard to the conditions set out in the two indents of paragraph 2(a) of Article 17 and is calculated not in accordance with the criteria to be found in the directive but in accordance with the criteria set in the collective economic agreement itself, with the result that, in many cases, the level of the indemnity to be paid would have to be significantly lower than the ceiling provided for in the directive. |
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(a)

Given the content of Article 17 of Council Directive 86/653 of 18 December 1986 (1) on the coordination of the laws of the Member States relating to self-employed commercial agents, can Article 19 be interpreted as meaning that it is permissible for the national implementing legislation to provide that the indemnity owed to an agent is payable under a collective agreement binding on its signatories, without regard to the conditions set out in the two indents of paragraph 2(a) of Article 17 and is calculated not in accordance with the criteria to be found in the directive but in accordance with the criteria set in the collective economic agreement itself, with the result that, in many cases, the level of the indemnity to be paid would have to be significantly lower than the ceiling provided for in the directive.

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| (b) | Should the indemnity be calculated individually by estimating the further commissions that the agent could have earned in the years following termination of the contract on the basis of the new customers he has brought or the growth in business that he has generated, using the criterion of equity only to adjust the amount, or are other, composite, methods of calculation permitted, which make greater use of the criterion of equity. |
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(b)

Should the indemnity be calculated individually by estimating the further commissions that the agent could have earned in the years following termination of the contract on the basis of the new customers he has brought or the growth in business that he has generated, using the criterion of equity only to adjust the amount, or are other, composite, methods of calculation permitted, which make greater use of the criterion of equity.

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(1)  OJ L 382 of 31.12.1986, p. 17.

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