Opinion of the Advocate General — ECLI:EU:C:2017:15
Date: 2017-01-12
Language of the case: Slovak
Subject matter: Right of establishment;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Slovakia

Summary — Judgment of the Court (Fourth Chamber), 17 May 2017 1. Freedom of movement for persons — Freedom of establishment — Self-employed commercial agents — Directive 86/653 — Remuneration — Agent’s entitlement to commission — Ceasing of entitlement — Non-execution of the contract between the principal and a third party — Concept — Partial non-execution of the contract — Included (Council Directive 86/653, Art. 11(1), first indent) 2. Freedom of movement for persons — Freedom of establishment — Self-employed commercial agents — Directive 86/653 — Remuneration — Agent’s entitlement to commission — Ceasing of entitlement — Derogation to the detriment of the commercial agent — Concept — Whether an agent is under a contractual obligation to reimburse part of the commission on a pro rata basis in the event of partial non-execution of the contract concluded between the principal and a third party — Precluded — Conditions (Council Directive 86/653, Art. 11(2) and (3)) 3. Freedom of movement for persons — Freedom of establishment — Self-employed commercial agents — Directive 86/653 — Remuneration — Agent’s entitlement to commission — Ceasing of entitlement — Reason for which the principal is to blame — Concept — All the legal and factual circumstances for which the principal is to blame, which are the cause of the non-execution of that contract (Council Directive 86/653, Art. 11(2) and (3)) 1. The first indent of Article 11(1) 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 it covers not only cases of complete non-execution of the contract concluded between the principal and the third party, but also cases of partial non-execution of that contract, such as non-compliance with the volume of transactions or the duration envisaged by that contract. (see para. 44, operative part 1) 2. Article 11(2) and (3) of Directive 86/653 must be interpreted as meaning that the clause of a contract for commercial agency pursuant to which the agent is required to refund, on a pro-rata basis, a part of his commission in the event of partial non-execution of the contract concluded between the principal and the third party does not constitute a ‘derogation to the detriment of the commercial agent’, for the purposes of that Article 11(3), if the part of the commission subject to the refund obligation is proportionate to the extent to which that contract has not been executed and on condition that that non-execution is not due to a reason for which the principal is to blame. An obligation to refund a part of the commission proportionately greater than the extent of that non-execution would constitute a derogation to the detriment of the agent, prohibited by Article 11(3) of Directive 86/653. By contrast, a derogation to the advantage of the agent, consisting in requiring the refund of a part of the commission proportionally smaller than the extent of the non-execution of the contract remains possible. (see paras 49, 51, operative part 2) 3. The second indent of Article 11(1) of Directive 86/653 must be interpreted as meaning that the concept of ‘a reason for which the principal is to blame’ does not relate only to the legal reasons which led directly to the termination of the contract concluded between the principal and the third party, but covers all the legal and factual circumstances for which the principal is to blame, which are the cause of the non-execution of that contract. (see para. 61, operative part 3)