Opinion of the Advocate General — ECLI:EU:C:2008:635
Date: 2008-11-19
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 1. Freedom of movement for persons – Freedom of establishment – Self-employed commercial agents – Directive 86/653 (Council Directive 86/653, Art. 17) 2. Freedom of movement for persons – Freedom of establishment – Self-employed commercial agents – Directive 86/653 (Council Directive 86/653, Art. 17(2)(a) and (b)) 3. Freedom of movement for persons – Freedom of establishment – Self-employed commercial agents – Directive 86/653 (Council Directive 86/653, Art. 17(2)(a) and (b)) 1. The system established by Article 17 of Directive 86/653 on the coordination of the laws of the Member States relating to self-employed commercial agents concerning, in particular, the protection of the commercial agent after termination of the contract is mandatory in nature. As regards the indemnity for termination of the agency contract, the Member States may exercise their discretion as to the choice of methods for calculating the indemnity only within the strict framework established by Articles 17 and 18 of the directive. The procedure for the system laid down by Article 17 of the directive can be broken down into three stages. The aim of the first stage is, first of all, to quantify the benefits accruing to the principal as a result of the volume of business with customers brought by the commercial agent, in accordance with the provisions of the first indent of Article 17(2)(a) of the directive. The aim of the second stage is to check, in accordance with the second indent of that provision, whether the amount established on the basis of the abovementioned criteria is equitable, having regard to all the circumstances of the case and, in particular, to the commission lost by the commercial agent. Finally, at the third stage, the amount of the indemnity is subject to an upper limit provided for in Article 17(2)(b) of the directive, which comes into play only if the amount calculated during stages one and two exceeds it. (see paras 17-19) 2. Article 17(2)(a) of Directive 86/653 on the coordination of the laws of the Member States relating to self-employed commercial agents is to be interpreted to the effect that it is not possible automatically to limit the indemnity to which a commercial agent is entitled by the amount of commission lost as a result of the termination of the agency contract, even though the benefits which the principal continues to derive have to be given a higher monetary value. The discretion that Member States have to adjust, where necessary, the indemnity payable to a commercial agent after termination of a contract in order to make it equitable cannot be construed to the effect that the indemnity can only be adjusted downwards. Such an interpretation of the second indent of Article 17(2)(a) of the directive, which would allow any increase in the indemnity to be excluded automatically, would be detrimental to the commercial agent whose contract was terminated. That interpretation cannot be accepted. It follows that a practice whereby the courts automatically exclude, for the purposes of the application of the criterion of equity, in a case where the benefits which the principal continues to derive exceed the estimated commission lost by the commercial agent, the possibility of any increase in that indemnity up to the maximum of the ceiling laid down in Article 17(2)(b) of the directive, is not permissible. (see paras 21, 23-25, operative part 1) 3. Article 17(2)(a) of Directive 86/653 on the coordination of the laws of the Member States relating to self-employed commercial agents is to be interpreted to the effect that, where the principal belongs to a group of companies, benefits accruing to other companies of that group are not, in principle, deemed to be benefits accruing to the principal and, consequently, do not necessarily have to be taken into account for the purposes of calculating the amount of indemnity to which a commercial agent is entitled. The ceiling on the amount of the indemnity, laid down in Article 17(2)(b) of the directive, is calculated on the basis of the commercial agent’s remuneration. Even where the principal belongs to a group of companies, it is still always the principal – and only the principal – who will pay the remuneration, not the other companies in the group. Furthermore, it is clear from the second recital to the directive that it aims, inter alia, to ensure the security of commercial transactions and, consequently, legal certainty in the area of commercial representation. That objective precludes, in principle, the taking into consideration of benefits accruing to third parties, unless that is what was agreed contractually between the principal and the commercial agent. In this respect, it is for the national court to assess the agency contract in the light of the applicable national law. (see paras 30-32, operative part 2)