Opinion of the Advocate General — ECLI:EU:C:2018:625
Date: 2018-07-25
Language of the case: French
Subject matter: Right of establishment;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary — Judgment of the Court (Fourth Chamber), 21 November 2018 1. Freedom of movement for persons — Freedom of establishment — Self-employed commercial agents — Directive 86/653 — Definition of ‘commercial agent’ — Person performing his activities from the principal’s premises — Included — Condition — Performance of that activity independently (Council Directive 86/653, Arts 1(2) and 3(2)) 2. Freedom of movement for persons — Freedom of establishment — Self-employed commercial agents — Directive 86/653 — Definition of ‘commercial agent’ — Person performing for the principal, in addition to the activities specific to a commercial agent, activities of another nature — Included — Condition — Performance of the former activities in an independent manner (Council Directive 86/653, Art. 1(2) an d 2(2)) 1. Article 1(2) 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 must be interpreted as meaning that the fact that a person who has continuing authority to negotiate the sale or the purchase of goods on behalf of another person, or to negotiate and conclude such transactions on behalf of and in the name of that person, performs his activities from the latter’s business premises does not prevent him from being classified as a ‘commercial agent’ within the meaning of that provision, provided that that fact does not prevent that person from performing his activities in an independent manner, which is for the referring court to ascertain. Article 1(2) of Directive 86/653 lays down the three necessary and sufficient conditions for a person to be classified as a ‘commercial agent’. First, that person must be a self-employed intermediary. Second, the contractual relationship must be of a continuing character. Third, he must exercise, on behalf of and in the name of the principal, an activity which may consist either simply in being an intermediary for the sale or purchase of goods or in both acting as intermediary and concluding sales or purchases of goods. Therefore, it is sufficient that a person satisfies those three conditions to be classified as a ‘commercial agent’ within the meaning of Article 1(2) of Directive 86/653, regardless of the arrangements under which he performs his activities, and provided that he does not fall within one of the exclusions laid down by Article 1(3) and Article 2 of that directive. In that context, in the absence of any provision in that directive requiring that the commercial agent perform his activity in an itinerant manner external to the principal’s premises, it must be held that the benefit of the protection conferred by that directive must also be extended to persons who, as in the case in the main proceedings, perform their activity from within that establishment (see, by analogy, judgment of 30 April 1998, Bellone, C‑215/97, EU:C:1998:189, paragraph 13). (see paras 23, 24, 28, 36, operative part 1) 2. Article 1(2) of Directive 86/653 must be interpreted as meaning that the fact that a person not only performs activities consisting in the negotiation of the sale or purchase of goods for another person, or the negotiation and conclusion of those transactions on behalf of and in the name of that other person, but also performs, for the same person, activities of another kind, without those other activities being subsidiary to the first kind of activities, does not preclude that person from being classified as a ‘commercial agent’ within the meaning of that provision, provided that that fact does not prevent the former activities from being performed in an independent manner, which it is for the referring court to ascertain. As the Advocate General observes in substance in points 49 to 51 of his Opinion, in principle, that directive does not preclude the commercial agent’s activities from being combined with activities of another kind, including a situation in which the person concerned performs the first kind of activities as subsidiary activities or where, as in the present case, those activities have the same importance as the other tasks he performs, as such a combination is not excluded by any provision of that directive. Therefore, apart from the case in which, pursuant to Article 2(2) of Directive 86/653, a Member State chooses to exclude from the scope of that directive persons whose activities as commercial agents are subsidiary, which, moreover, does not appear to be the case in the main proceedings, persons performing activities as commercial agents must be regarded as falling within the scope of that directive, even if those activities are combined with activities of another kind. (see paras 42, 43, 51, operative part 2)