Opinion of the Advocate General — ECLI:EU:C:2015:585
Date: 2015-09-10
Language of the case: German
Subject matter: Right of establishment;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary — Judgment of the Court (Fourth Chamber), 7 April 2016 1. EU law — Interpretation — Methods — Literal, systematic and teleological interpretation (Council Directive 86/653, Art. 17(2)) 2. Freedom of movement of persons — Freedom of establishment — Self-employed commercial agents — Directive 86/653 — Commercial agent’s entitlement to an indemnity — New customers — Concept — Customers acquired by the commercial agent for the goods assigned to him — Customers who already have business relations with regard to other goods — Included — Condition — Establishment of specific business relations by the agent — Verification by the national court (Council Directive 86/653, Art. 17(2)) 1. See the text of the decision. (see para. 29) 2. The first indent of Article 17(2)(a) 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 customers brought in by the commercial agent for the goods that he has been assigned by the principal to sell must be regarded as new customers, within the meaning of that provision, in the case where, even though those customers already had business relations with that principal in relation to other goods, the sale, by that agent, of the first goods required the establishment of specific business relations, this being a matter for the referring court to determine. By taking into account the objectives pursued by Directive 86/653 which seek, inter alia, to protect the commercial agent in his relations with the principal, and the particular importance of Article 17 of that directive in that regard, it is necessary to interpret the wording of Article 17(2) in a manner which contributes to that protection of the commercial agent and which therefore takes full account of the merits of the latter in carrying out the transactions assigned to him. The concept of ‘new customers’, within the meaning of that provision, may not therefore be construed restrictively. Consequently, it is in relation to the goods in respect of which the commercial agent is assigned by the principal to negotiate and, if applicable, to conclude the sale or purchase that it is necessary to determine whether a customer is new or existing within the meaning of Article 17(2) of Directive 86/653. Thus, in a situation in which, in compliance with the terms of the commercial agency contract, the commercial agent is assigned to negotiate the sale of a portion of the principal’s range of goods and not all of that range, the fact that a person already maintained business relations with the principal in respect of other goods does not exclude that person from being regarded as a new customer brought in by that commercial agent when the latter has managed, through his efforts, to initiate business relations between that person and the principal for the goods which the agent has been assigned to sell. Furthermore, the fact that the principal entrusted a commercial agent with the marketing of new goods to customers with whom the principal already maintained certain business relations may indicate that those goods relate to a different portion of the range to that which those customers had purchased up to that point and that the sale of those new goods to the latter customers would require that commercial agent to set up specific business relations, this, however, being a matter for the referring court to determine. (see paras 32-35, 39, 43, operative part)