Opinion of the Advocate General — ECLI:EU:C:2022:931
Date: 2022-11-24
Language of the case: Czech
Subject matter: Right of establishment;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Czechia

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Translation C-574/21 – 1 
Case C-574/21 
Request for a preliminary ruling  
Date lodged: 
20 September 2021 
Referring court: 
Nejvyšší soud České republiky (Czech Republic) 
Date of decision to refer: 
29 June 2021 
Applicant: 
QT 
Defendant: 
02 Czech Republic a. s. 
  
[…] 
ORDER  
The Nejvyšší soud (The Supreme Court, Czech Republic) has ruled […] in the 
case of the applicant […] QT […] v. the defendant, O2 Czech Republic a. s., 
[…], with respect to the payment of the amount of CZK 2,023,799 plus associated 
amounts and interest, conducted before the Obvodní soud pro Prahu 4 (District 
Court Prague 4, Czech Republic), under ref. no 60 C 100/2014, concerning the 
appeal on a point of law of the applicant against the decision of the Městský soud 
v Praze (Prague City Court, Czech Republic), of 27 November 2019, ref. no 72 Co 
302/2019-939, as follows: 
I. […] 
EN 
REQUEST FOR A PRELIMINARY RULING OF 29. 6. 2021 – CASE C-574/21 
 
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II. The Supreme Court hereby submits the following questions to the Court of 
Justice of the European Union for a preliminary ruling, pursuant to Article 267 of 
the Treaty on the Functioning of the European Union: 
Must the expression ‘the commission lost by the commercial agent,’ within the 
meaning of Article 17(2)(a), second indent, 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, be interpreted to the effect that such 
commissions include commissions for the conclusion of contracts which a 
commercial agent would have entered into had the commercial agency [contract] 
endured, with the customers that he or she brought the principal or with which he 
or she significantly increased the volume of business? 
If so, subject to what conditions does this conclusion apply to ‘one-off 
commissions’ for the conclusion of a contract? 
G r o u n d s : 
I. 
Background of the proceedings and proceedings before Czech courts thus far  
1 In the present case, the applicant was seeking the imposition of the obligation on 
the defendant to pay to the applicant CZK 2,023,799 plus default interest on the 
grounds of a commercial agent’s right to indemnification.  
2 Initially, the Obvodní soud v Praze 4 (District Court Prague 4) granted the 
application in part in its judgment of 14 September 2015 […], which was the first 
in the series, the Městský soud v Praze (Prague City Court), as the appeal court, 
ruled on 16 March 2016 […] setting aside that decision on the basis of the 
defendant’s appeal, on grounds of inadequate finding of facts, returning the case 
to the court of first instance for rehearing. 
3 In its second judgment, of 30 January 2019 […], the District Court dismissed the 
application. 
4 The facts found by courts of lower instances were as follows: 
A commercial agency contract was concluded between the applicant and the 
defendant’s legal predecessor (‘the defendant’) on 1 January 1998, the subject of 
which were the terms and conditions of commercial agency, the offer and sale of 
telecommunications services provided by the defendant in the NMT 450 and GSM 
systems, the supply and sale of mobile telephones and accessories and other 
potential products, and customer care. As at 31 March 2010, the legal relationship 
between the parties terminated due to a notice of termination given by the 
defendant. 
02 CZECH REPUBLIC 
 
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Pursuant to the commercial agency contract, the applicant was entitled to a one-
off commission for each individual contract he concluded for the defendant. The 
applicant did acquire new customers for the defendant in 2006 and 2007, or 
entered into additional contracts with existing customers, for example, for other 
products or extending their existing contracts, but, even with a view to the 
duration of the maximum tariff commitment, which in the years concerned was a 
maximum of 30 months, they did not extend beyond the date of 31 March 2010, 
when the contractual relationship of the parties was terminated. In respect of the 
period between 2008 and 2009, a total of 431 commitments went beyond 
31 March 2010, of which 155 were new contracts and 276 were changed 
commitments. Hence, the applicant has proven that it had brought new clients to 
the defendant and also developed business with existing ones. For such activities, 
the applicant received due pay from the defendant.  
5 The court of first instance stated that it was up to the applicant to state clearly and 
definitely what advantages the defendant derives from those transactions, but the 
applicant failed to do so. Consequently, the Court concluded that the applicant had 
failed to demonstrate that the defendant derived substantial benefits from the 
customers acquired by the applicant after the termination of their cooperation. In 
view of that fact, it did not examine in further detail the other condition for the 
payment of indemnification, which is whether it was equitable. On those grounds, 
it dismissed the application as unfounded.  
6 Upon the applicant’s appeal, the Prague City Court confirmed the judgment of the 
court of first instance in its decision referred to in the introductory paragraph, 
having proceeded on the basis of the findings of facts made by the court of first 
instance.  
7 The appeal court emphasised that the commission for the brokerage of 
transactions by the applicant were one-off and all had been duly paid out to the 
plaintiff, stating the opinion that the applicant’s arguments based on the 
commission to which he would have hypothetically become entitled by the 
conclusion of further transactions, whether with existing or with new customers, 
does not support the right to indemnification under Paragraph 669 of zákon č. 
513/1991 Sb., obchodní zákoník, (Law 513/1991, the Commercial Code), in effect 
until 31 December 2013 (‘the Commercial Code’). Although the applicant brought 
in new customers and developed business with existing customers from which the 
defendant may have derived benefits after the termination of the commercial 
agency contract, the [defendant] had paid commissions to the applicant for such 
transactions pursuant to the commercial agency contract, and hence the payment 
of indemnification would not be equitable under Paragraph 669(1)(b) of the 
Commercial Code, and for that reason alone, the application should be dismissed. 
8 The applicant filed an appeal on a point of law challenging the judgment of the 
appeal court.  
REQUEST FOR A PRELIMINARY RULING OF 29. 6. 2021 – CASE C-574/21 
 
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9 The appellant refers to the court hearing the appeal on a point of law a question 
which the first-instance appeal court did settle in line with the decision-making 
practice of the court hearing the appeal on a point of law; nevertheless, the 
appellant is convinced that the question should be resolved differently. The 
appellant disagrees with the legal conclusion of the Supreme Court, according to 
which lost commissions, under Paragraph 669(1)(b) Commercial Code, are those 
commissions that the agent ‘would otherwise have received from already 
transacted business’ (comp. Supreme Court judgments of 26 October 2011, file no 
32 Cdo 3359/2011, ECLI:CZ:NS:2011:32.CDO.3359.2011.1, of 17 December 
2013, file no 32 Cdo 534/2012, ECLI:CZ:NS:2013:32.CDO.534.2012.1, of 
27 October 2015, file no 23 Cdo 1531/2015, 
ECLI:CZ:NS:2015:23.CDO.1531.2015.1, as well as related decisions). On the 
contrary, the appellant advances the conclusion that lost commissions include 
those commissions that the commercial agent would have hypothetically gained, 
i.e., lost, on business transacted by the principal after the termination of the 
commercial agency with the customers brought to it by the commercial agent or 
those with whom he had significantly developed business. 
II. 
Applicable national legislation  
Law 513/1991, the Commercial Code, version applicable until 31 December 
2013: 
Paragraph 669 
(1) A commercial agent shall be entitled to indemnification in the event of the 
termination of the contract if: 
a) he has brought the principal new customers or significantly developed 
business with existing customers and the principal continues to derive substantial 
benefits from business with such customers; and 
b) the payment of this indemnification is equitable having regard to all the 
circumstances and, in particular, the commission lost by the commercial agent on 
the business transacted with such customers; such circumstances also include the 
application or otherwise of a restraint of trade clause, within the meaning of 
Paragraph 672a. 
III. 
Applicable European Union legislation  
10 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 ( 
‘the Directive’): 
02 CZECH REPUBLIC 
 
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Article 17 
(1) 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. 
(2) 
a. The commercial agent shall be entitled to an indemnity if and to the 
extent that 
- he has brought the principal new customers or has significantly 
increased the volume of business with existing customers and the 
principal continues to derive substantial benefits from the business 
with such customers, and 
- the payment of this indemnity is equitable having regard to all the 
circumstances and, in particular, the commission lost by the 
commercial agent on the business transacted with such customers. 
Member States may provide for such circumstances also to include the 
application or otherwise of a restraint of trade clause, within the 
meaning of Article 20; 
IV. 
Grounds for the preliminary reference  
11 The Directive aims to coordinate the laws of the Member States as regards the 
legal relationship between the parties to a commercial agency contract. In 
particular, therefore, it seeks to protect commercial agents in their relations with 
their principals and, to that end, establishes, inter alia, rules governing the 
conclusion and termination of an agency contract, in Articles 13 to 20 (comp. 
Court of Justice of the EU of 23 March 2006, Honyvem Informazioni 
Commerciali, C-465/04, ECLI:EU:C:2006:199, paragraphs 18 and 19, and also 
judgment of the Court of Justice of the EU of 26 March 2009, Turgay Semen, 
C-348/07, ECLI:EU:C:2009:195, paragraph 14). In view of that fact, established 
decision-making practice of the Court of Justice of the EU deduces that any 
interpretation of Article 17 of the Directive which may prove to be detrimental to 
the commercial agent is not permissible (comp. to other references, e.g., judgment 
of the Court of Justice of the EU of 19 April 2018, Conseils et mise en relations 
[CMR] SARL, C-645/16, ECLI:EU:C:2018:262, paragraph 35). 
12 The legislation in the Czech Republic is based on the indemnification system, 
having transposed the solution set out in Article 17(2) of the Directive. The 
system is, among other things, embodied in applicable and effective laws of the 
Federal Republic of Germany (see judgment in Turgay Semen C-348/07, cited 
above, paragraph 16). 
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13 In its judgment of 26 October 2011, file no 32 Cdo 3359/2011, the Supreme Court 
stated the view (even though merely in the form of obiter dictum) that if a 
commission is to be one that a commercial agent has lost by the termination of the 
commercial agency agreement, it must be a commission that he or she would 
otherwise (i.e., had the commercial agency endured) have received on business 
already transacted, i.e., transactions concluded by him or her or substantially 
developed by him or her. The Supreme Court upheld that opinion in its judgments 
of 17 December 2013, file no 32 Cdo 534/2012, of 27 October 2015, file no 23 
Cdo 1531/2015, as well as in other judgments, thereby establishing a settled 
decision-making practice. 
14 The opposite trend can be traced in German case-law and literature. There, the 
opinion prevails that the commission lost by a commercial agent includes 
commissions for the conclusion of contracts that the commercial agent would 
have otherwise, had the commercial agency relationship endured, obtained from 
future transactions between the principal and the customers he or she had brought 
to the principal or with whom he or she significantly developed business (comp. to 
references to the case-law of the Federal Court of Justice by Busche in OETKER, 
Hartmut a kol. Kommentar zum Handelsgesetzbuch (HGB). 4. Aufl. München: 
C. H. Beck, 2021, HGB Section 89b, marg. no 22; Strobl in Müchener 
Kommentar zum HGB 5 Auf!., 2021, HGB Section 89b, marg. no 104; and from 
case-law, e.g., decision of the Federal Court of Justice of 13 May 1957, file no II 
ZR 19/57, also published in the Neue Juristische Wochenschrift magazine (1957, 
1028). After all, such a conclusion flows from the text of Paragraph 89b(1), 
point 2 of the German commercial code prior to the 2009 amendment, which 
explicitly referred to business transacted in the future. 
15 It follows from German case-law as well as specialised literature that a 
commercial agent does not lose any commission in the case of one-off 
commissions (Einmalprovisionen). For example, the Munich Regional Court 
concluded in its decision of 23 February 2011, file no 10 HK O 3966/10, that one-
off commissions for arranging cable connections for customers are not 
commissions that the sales representative loses. But the Regional Court reached 
that conclusion on the basis of the nature of the one-off commission: ‘by 
negotiating a one-off commission, the disadvantages for the commercial agent 
normally associated with the termination of a commercial agency contract, are to 
be offset.’ A similar conclusion was also reached by the Higher Regional Court, 
Cologne, in its decision of 19 June 2015, file no 19 U 109/14, also available in the 
Beck-online.de information system under the abbreviation BeckRS 2015, 19345 
(comp. chiefly margin numbers 44, 45), although it expressly emphasised that, 
despite the absence of lost commissions, a claim for compensation could be 
awarded. Similarly, the German commentary literature states: ‘If a one-off 
commission was granted, then in any event according to previous views [i.e., 
views prior to the amendment of Paragraph 89b of the German Commercial Code 
in 2009 on the basis of the judgment in Turgay Semen C-348/07], there was no 
loss of commission if no further business could prospectively be expected with the 
customers brought in by the agent. This problem arises predominantly in long-
02 CZECH REPUBLIC 
 
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term contracts, the brokerage of which is rewarded once and for all with a 
commission at the time of the conclusion of the contract,’ (also see other 
references to other literature: EMDE, Raimond. Vertriebsrecht: Paragraphs 84 – 
92c HGB. Handelsvertreterrecht -Vertragshändlerrecht – Franchiserecht. 3. neu 
bearbeitete und erw. Aufl. Berlin: De Gruyter, 2014, HGB Paragraph 89b, marg. 
no 228). 
16 With a view to the case-law and literature cited in previous paragraphs which runs 
counter to the established decision-making practice of the Supreme Court [of the 
Czech Republic], there is thus undeniable doubt with regard to the interpretation 
of Article 17(2)(a), second indent, of the Directive that only the Court of Justice of 
the European Union is authorised to resolve, as the tribunal established by law 
pursuant to Article 47(2) of the Charter of Fundamental Rights of the European 
Union and pursuant to Article 36(1) of the Charter of Fundamental Rights and 
Freedoms of the Czech Republic, by which the Supreme Court is bound. 
17 Whereas the interpretation of Article 17(2)(a), second indent, of the Directive is 
essential to the decision concerning entitlement of a commercial agent to 
indemnification in the case at hand, the Supreme Court is a court against whose 
decisions there is no judicial remedy under national law, within the meaning of 
Article 267(3) of the Treaty on the Functioning of the European Union (‘TFEU’), 
and none of the exceptions due to which it would not have to make a preliminary 
reference to the Court of Justice in respect of interpretation (the interpretation of 
the expression used in Article 17(2)(a), second indent, of the Directive cannot be 
deemed to constitute an acte clair or acte éclairé – see judgment of the Court of 
Justice in CILFIT, C-283/81) exist, the Supreme Court is obliged to make a 
reference to the Court of Justice of the European Union, proceeding in line with 
Article 267 TFEU. 
[…]