Judgment — ECLI:EU:C:2026:338
Date: 2026-04-23
Language of the case: Dutch

summary appeal decisions’, dated 18 May 2021, the 
appellants argued on pp. 30-31: 
‘Pursuant to the agreement dated 27 October 2016, the appellants were urged to 
repay the sum of EUR 8 314.99 by 28 March 2017 (exhibit 22). 
At that point, the respondent had still not given its consent to the sale of the 
property in W (see above), and continued to put pressure on the appellants. 
As mentioned, the respondent will link its claim for repayment of ‘prepaid’ 
commissions amounting to EUR 8 314.99 to its consent with a view to the sale. 
This is evident from the fact that on 1 June 2017, CP (the defendant) had still not 
drawn up an agreement (although it was promised on 29 March 2017, see above) 
but in which he did announce this. It was made clear as follows in an email dated 
1 June 2017: 
‘OL, 
FYI. I am now working on the rest. 
Can you please remember to make the payment in good time, as well as the 
payment for the refundable credit commissions?’ (exhibit 23) 
The appellants were thus pressured into paying both the compensation of 
EUR 100 000 and the ‘refundable credit commissions’ of EUR 8 314.99. Without 
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both payments, a transfer would not have been possible. This was clearly already 
apparent, and only the respondent still believes its own stories. 
These amounts were ultimately paid so that the sale of the property in W could 
proceed, and this in view of the great pressure and force imposed and exerted by 
the respondent. 
As such, the sum of EUR 100 000 was paid by the third appellant and the sum of 
EUR 8 314.99 was paid as follows: 
the first appellant: EUR 4 085.26 
the third appellant: EUR 2 454.72 (EUR 1 694.02 + EUR 760.70) 
the second appellant: EUR 1 775.01 
In its letter dated 12 October 2017, the respondent argues that it would have 
taken the fourth appellant a year to realise that abuse had taken place and that 
the timing would suit the appellants well (exhibit 26). However, this is clearly not 
so. The pressure and force only stopped when the building in W was sold. The 
respondent is naturally silent on this. If something does not suit it, it prefers to 
keep this to itself. 
It is therefore clear that the respondent exerted pressure and force until very 
recently and that the plaintiffs did not hesitate for a moment, but that they 
immediately proceeded to exercise their rights.’ 
Thus, it appears that the appellants’ temporary unreserved stance on the 
aforementioned repayments and agreements was motivated by their interest in 
obtaining the respondent’s consent to the sale of the property in W on 29 June 
2017 with certainty (p. 17 of the contested judgment). 
13 It follows that the contested judgment unlawfully inferred from the mere absence 
of a reservation expressed by the appellants after receipt of the severance 
payments and the reimbursement of EUR 8 314.99 euros in credit commissions 
that the appellants renounced the protection they enjoyed, whereas the appellants’ 
attitude could certainly be interpreted in a different way, as is evident from the 
arguments cited in their decisions. (Violation of the general legal principle of the 
primacy of Community law over internal legal norms, the cited Articles 15(2), 17, 
18 and 19 of Directive 86/653/EEC of the Council of 18 December 1986, the 
general legal principle that a waiver of rights must be interpreted strictly and can 
only be derived from facts that leave no room for interpretation, Article 1338 of 
the Old Belgian Civil Code, Articles X.16, X.I7, X.18, X.19, X.20 and X.21 of the 
WER, the cited Article 6 of the Old Belgian Civil Code and Article 1(3) of the 
Belgian Civil Code). 
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IV. DECISION OF THE COURT OF CASSATION 
Assessment 
First part 
1. Pursuant to Article X.16, §1, paragraphs 1 and 2 of the WER, if a 
commercial agency contract is concluded for an indefinite period or for a fixed 
term with the possibility of early termination, either party shall be entitled to 
terminate the contract by notice. The notice period is one month during the first 
year of the contract. After the first year, the notice period is increased by one 
month for each year or part thereof that has commenced, without this period 
exceeding six months and without prejudice to the provisions of the third 
paragraph. The parties may not agree on shorter periods of notice. 
Pursuant to Article X.18, paragraph 1 of the WER, the commercial agent is 
entitled to a goodwill indemnity after termination of the commercial agency 
contract if he or she has brought the principal new customers or if he or she has 
significantly developed commercial relationships with existing customers, in so 
far as the principal can continue to derive substantial benefits therefrom. 
Pursuant to Article X.19 of the WER, in so far as the commercial agent is entitled 
to the goodwill indemnity referred to in Article X.18 and the amount of such 
indemnity does not fully indemnify the agent for the loss actually incurred, the 
commercial agent may, subject to proof of the actual extent of the loss claimed, 
obtain damages, in addition to that indemnity, not exceeding the difference 
between the amount of the loss actually incurred and the amount of that 
indemnity. 
Pursuant to Article X.20 of the WER, the right to compensation as referred to in 
Articles X.18 and X.19 also arises when the contract is terminated due to the death 
of the commercial agent. 
Article X.21 of the WER provides: ‘The parties may not derogate from Articles 
X.18, X.19 and X.20 to the detriment of the commercial agent before the 
commercial agency contract expires.’ 
2. The aforementioned legal provisions constitute the transposition in Belgium 
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. 
Article 15(1) of that Directive provides that if the contract has been concluded for 
an indefinite period, either party may terminate it by notice. 
Article 15(2) of that Directive provides that the period of notice shall be one 
month for the first year of the contract, two months for the second year 
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commenced, and three months for the third year commenced and subsequent 
years. The parties may not agree on shorter periods of notice. 
Pursuant to Article 17(1) of the Directive, Member States shall take the measures 
necessary to ensure that the commercial agent is, after termination of the agency 
contract, indemnified in accordance with paragraph 2 or compensated for damage 
in accordance with paragraph 3. 
Pursuant to Article 17(4) of the Directive, entitlement to the indemnity as 
provided for in paragraph 2 or to compensation for damage as provided for under 
paragraph 3, shall also arise where the agency contract is terminated as a result of 
the commercial agent's death. 
Article 18 of the Directive specifies the cases in which indemnity or compensation 
is not due on the grounds of Article 17. 
Article 19 of the Directive provides: ‘The parties may not derogate from 
Articles 17 and 18 to the detriment of the commercial agent before the agency 
contract expires.’ 
3. It follows from the case-law of the Court of Justice of the European Union 
that Articles 17 and 19 in particular are intended to protect the commercial agent 
after termination of the contract and that these rules of the Directive are of a 
mandatory nature (CJEU 9 November 2000, C-381/98, Ingmar, legal ground 21; 
CJEU 23 March 2006, Honyvem Informazioni Commerciali, C-465/04, legal 
ground 22; CJEU 26 March 2009, Turgay Semen v Deutsche Tamoil GmbH, 
C-348/07, legal ground 17; CJEU 17 October 2013, C-l84/12, Unamar, legal 
ground 40). 
4. The appellants argue that the mandatory nature of those provisions means 
that, as long as the commercial agency contract has not been terminated, the 
commercial agent should not have to tolerate a shorter notice period or lower 
goodwill indemnity, nor can he or she validly waive this protection or agree to 
lower protection in advance of the end of the collaboration. According to the 
appellants, it is only after the termination of the commercial agency contract, due 
to the expiration of the notice period given by the principal, that the parties regain 
their freedom to negotiate on an equal footing, and this means that the raison 
d’être for providing the mandatory protection does not end when the commercial 
agent becomes aware or could reasonably have become aware of the notice given 
by the principal. 
5. The dispute thus raised can only be resolved by answering the question of 
when a commercial agency contract can be considered terminated within the 
meaning of Articles 15(2) and 19 of Directive 86/653/EEC, for which the Court of 
Justice of the European Union has exclusive jurisdiction. 
6. Accordingly, in accordance with Article 267 of the Treaty on the 
Functioning of the European Union, the Court must refer the question formulated 
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in the operative part of this judgment to the Court of Justice of the European 
Union for a preliminary ruling. 
Operative part of the judgment 
The Court, 
Defers all further decisions until the Court of Justice of the European Union has 
given a preliminary ruling on the following question: 
‘Is a commercial agency contract to be considered as terminated within the 
meaning of Articles 15(2) and 19 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, at the time of the actual termination of the 
commercial agency contract, that is to say, after the expiry of the period of notice, 
or at the time when the commercial agent becomes aware or could reasonably 
have become aware of the termination of the commercial agency contract?’ 
[…] [closing wording and signature]