Judgment — ECLI:EU:C:2008:23
Date: 2008-01-17
Language of the case: French
Court formation: First Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Freedom to provide services
Concepts: The various activities
Procedure: Reference for a preliminary ruling
Origin: France

Summary of the Judgment Freedom of movement for persons – Freedom of establishment – Self-employed commercial agents – Directive 86/653 (Council Directive 86/653, Arts 7(2), first indent, 10(1) and (2), and 11(1)) The first indent of Article 7(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 meaning that a commercial agent entrusted with a specific geographical area does not have the right to a commission for transactions concluded by customers belonging to that area with a third party without any action, direct or indirect, on the part of the principal. Although that provision merely refers to any ‘transactions concluded during the period covered by the agency contract’, without any other requirement than that those transactions have been entered into with a customer belonging to a geographical area or a group of customers for whom the commercial agent is responsible, it nevertheless follows from the combination of Article 10(1) and Article 10(2) of Directive 86/653 that the commercial agent’s right to commission arises either when the principal has or should have carried out his obligation, or when the third party to the agency contract, that is the customer, has or should have carried out his obligation. In each instance, the presence of the principal in the transactions for which the commercial agent can claim commission is indispensable. That is supported by the wording of Article 11(1) of that directive, according to which the commercial agent’s right to commission can be extinguished only if and to the extent that it is established that the contract between the third party and the principal will not be executed, and that fact is due to a reason for which the principal is not to blame. It is for the national court to establish whether or not the evidence before it, assessed in the light of the aim of protecting the commercial agent which is one of the objectives of that directive and of the obligation on the principal to act dutifully and in good faith under Article 4 of that directive, allows it to establish the existence of such action, be that action of a legal nature, for example through the intermediary of a representative, or of a factual nature. (see paras 16, 19-23, operative part)