Turgay Semen v Deutsche Tamoil GmbH.
Date: 2009-03-26
13. In that connection it must be observed, as a preliminary point, that the interpretation of Article 17 of the Directive is to be considered in the light of the aims pursued by the Directive and the system it establishes (see Case C-465/04 Honyvem Informazioni Commerciali  [2006] ECR I-2879, paragraph 17).
14. Next, it is common ground that the Directive aims to coordinate the laws of the Member States as regards the legal relationship between the parties to a commercial agency contract. Accordingly, the Directive seeks in particular to protect commercial agents in their relations with their principals and, to that end, establishes, inter alia, rules governing the conclusion and termination of agency contracts, in Articles 13 to 20 ( Honyvem Informazioni Commerciali , paragraphs 18 and 19).
15. As regards termination of a contract, Article 17(1) of the Directive introduces a system that allows Member States to choose between two options. Member States are to take the measures necessary to ensure that the commercial agent is, after termination of the agency contract, either indemnified in accordance with the criteria set out in paragraph 2 or compensated for damage in accordance with the criteria set out in paragraph 3.
17. According to settled case-law, the system established by Article 17 of the Directive concerning, in particular, the protection of the commercial agent after termination of the contract is mandatory in nature (Case C-381/98 Ingmar  [2000] ECR I-9305, paragraph 21, and Honyvem Informazioni Commerciali , paragraph 22).
18. 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 ( Ingmar , paragraph 21 and Honyvem Informazioni Commerciali , paragraph 35).
19. 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 only comes into play if the amount calculated during stages one and two exceeds it.
21. In light of the aim of the Directive, as recalled in paragraph 14 of this judgment, under that system an interpretation of Article 17 of the Directive to the effect proposed by the referring court is permissible only if it will not prove to be detrimental to the commercial agent.
22. In that respect, moreover, the Court has already had occasion to refer to the Report on the application of Article 17 submitted by the Commission on 23 July 1996 (COM(96) 364 final). That report provides detailed information as regards the actual calculation of the indemnity and is intended to facilitate a more uniform interpretation of Article 17 (see Honyvem Informazioni Commerciali , paragraph 35). Thus the report lists various factors to be taken into consideration as part of the assessment in practice of the equitable nature of the indemnity, some of which are likely to militate in favour of a higher indemnity.