Opinion of the Advocate General — ECLI:EU:C:2010:315
Date: 2010-06-03
Language of the case: German
Subject matter: Right of establishment;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 1. Preliminary rulings – Jurisdiction of the Court – Limits (Art. 267 TFEU) 2. Freedom of movement for persons – Freedom of establishment – Self-employed commercial agents – Directive 86/653 (Council Directive 86/653, Art. 17(2)(a)) 3. Freedom of movement for persons – Freedom of establishment – Self-employed commercial agents – Directive 86/653 (Council Directive 86/653, Art. 18(a)) 1. If questions submitted by national courts concern the interpretation of a provision of Union law, the Court remains, in principle, obliged to give a ruling. Neither the wording of Article 267 TFEU nor the aim of the procedure established by that article indicates that the framers of the Treaty intended to exclude from the jurisdiction of the Court requests for a preliminary ruling on a provision of Union law in the particular case in which the domestic law of a Member State makes a renvoi to that provision in order to determine the rules applicable to a situation purely internal to that State. When domestic legislation adopts the same solutions as those adopted in Union law in order, in particular, to avoid discrimination against foreign nationals or any distortion of competition, it is clearly in the interest of the Union that, in order to forestall future differences of interpretation, provisions or concepts taken from Union law should be interpreted uniformly, irrespective of the circumstances in which they are to apply. These principles apply too when the legislation transposing the directive interpretation of which is requested does not directly govern the situation in issue but is applied by analogy under the national legislation. (see paras 10, 24-26) 2. Under the second 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, the commercial agent is to be entitled to an indemnity if and to the extent that the payment of that indemnity is equitable having regard to all the circumstances. The possibility cannot, therefore, be ruled out that that agent’s conduct may be taken into account in the assessment made to determine the fairness of his indemnity. (see para. 44) 3. Article 18(a) of Directive 86/653 on the coordination of the laws of the Member States relating to self-employed commercial agents precludes a self-employed commercial agent from being deprived of his goodwill indemnity when the principal establishes a default by that agent which occurred after notice of termination of the contract was given but before the contract expired and which was such as to justify immediate termination of the contract in question. (see para. 45, operative part)