Opinion of the Advocate General — ECLI:EU:C:2015:503
Date: 2015-07-16
Language of the case: French
Subject matter: Right of establishment;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary — Judgment of the Court (Fourth Chamber), 3 December 2015 1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Interpretation sought because of the applicability of an EU law provision arising from a reference made by national law — Jurisdiction to give that interpretation (Art. 267 TFEU) 2. Freedom of movement for persons — Freedom of establishment — Self-employed commercial agents — Directive 86/653 — Aim (Council Directive 86/653, Recitals 2 and 3) 3. Freedom of movement for persons — Freedom of establishment — Self-employed commercial agents — Directive 86/653 — Entitlement of the commercial agent to an indemnity — Indemnity not covering all of the loss actually incurred — Award of additional damages — Lawfulness — Discretion of the Member States — Conditions (Council Directive 86/653, Art. 17(2) and (3)) 4. Freedom of movement for persons — Freedom of establishment — Self-employed commercial agents — Directive 86/653 — Entitlement of the commercial agent to an indemnity — Conditions (Council Directive 86/653, Art. 17(2)) 1. See the text of the decision. (see paras 17, 18) 2. See the text of the decision. (see paras 21-23) 3. Article 17(2) of Directive 86/653 on the coordination of the laws of the Member States relating to self-employed commercial agents must be interpreted as not precluding national legislation which provides that a commercial agent is entitled, on termination of the agency contract, both to an indemnity for customers limited to a maximum of one year’s remuneration and, if that indemnity does not cover all of the loss actually incurred, to the award of additional damages, provided that such legislation does not result in the agent being compensated twice for the loss of commission following termination of the contract. It follows from the same wording in Article 17(2)(c) of Directive 86/653 and from its contextual interpretation that damages may be granted to commercial agents in addition to the indemnity for customers and that they are not subject to the conditions laid down in Article 17(2)(a) of the directive or to the maximum limit laid down in Article 17(2)(b) of that directive. In that regard, given that the directive does not give any clear guidance as to the circumstances in which a commercial agent may claim damages, it is for the Member States, in the exercise of their discretion, to determine those circumstances and the procedural rules. However, the discretion which Member States may exercise when implementing Article 17(2)(c) of the directive is circumscribed by the requirement to choose one of the two compensation schemes laid down in paragraphs 2 and 3 of that article, respectively, without being able to aggregate them. Consequently, the award of damages may not result in double recovery by combining the indemnity for customers with the compensation for loss resulting, in particular, from the loss of commission following termination of the contract. (see paras 30, 32, 34, 35, operative part 1) 4. Article 17(2)(c) of Directive 86/653 on the coordination of the laws of the Member States relating to self-employed commercial agents must be interpreted not making the award of damages conditional on demonstration of the existence of a fault attributable to the principal which caused the alleged harm, but does require the alleged harm to be distinct from that compensated for by the indemnity for clients. Directive 86/653, and in particular Article 17(2)(c) thereof, does not specify the circumstances in which damages are payable to the commercial agent. It is, therefore, for the Member States to determine in their national law whether the award of damages depends on the existence of a fault, be it contractual or non-contractual, attributable to the principal and which is caused by the alleged harm. Furthermore, it follows from the use of different words to designate the two aspects of the scheme of indemnity for customers laid down in Article 17(2) of the directive, that is to say, ‘indemnity’ and ‘damages’, additional and optional in nature, and the distinct degree of harmonisation envisaged by the directive in relation to those two aspects, that the compensation of the commercial agent by damages may relate only to a loss separate from that compensated for by the indemnity for customers. Otherwise, the upper amount of the indemnity laid down in Article 17(2)(b) of the directive would be circumvented. (see paras 37, 38, 40-42, operative part 2)