Marchon Germany GmbH v Yvonne Karaszkiewicz.
Date: 2016-04-07
19


In that regard, it must be noted that, pursuant to Article 83 of its Rules of Procedure, the Court may at any time, after hearing the Advocate General, order the reopening of the oral part of the procedure, in particular if it considers that it lacks sufficient information or where a party has, after the close of that part of the procedure, submitted a new fact which is of such a nature as to be a decisive factor for the decision of the Court, or where the case must be decided on the basis of an argument which has not been debated between the parties or the interested persons referred to in Article 23 of the Statute of the Court of Justice of the European Union.
24


With regard to the termination of commercial agency contracts, Article 17 of that directive requires Member States to put in place a mechanism for providing compensation to the commercial agent, allowing them to choose between two options: either an indemnity determined according to the criteria set out in Article 17(2), namely, the system of indemnity in respect of customers, or compensation according to the criteria set out in Article 17(3), namely the system of compensation for damage (judgment in Quenon K., C‑338/14, EU:C:2015:795, paragraph 24).
28


The very wording of that provision, in that it differentiates between new customers and existing customers, might, it is true, suggest that only customers with whom the principal had, until the commercial agent’s involvement and generally speaking, maintained no business relations, are to be regarded as new customers. However, those words, by themselves, do not establish for certain whether the ‘new’ or ‘existing’ nature of a customer must be assessed in relation to the principal’s entire range of goods or in relation to certain goods in particular.
29


Article 17(2) of Directive 86/653 must consequently be interpreted by taking account of the context of that provision and the objectives pursued by that directive (see, by analogy, judgments in Csonka and Others, C‑409/11, EU:C:2013:512, paragraph 23, and Vnuk, C‑162/13, EU:C:2014:2146, paragraph 42).
33


As regards, second, the objectives pursued by Directive 86/653, it is important to note that that directive seeks, inter alia, to protect the commercial agent in his relations with the principal (see, to that effect, judgments in Honyvem Informazioni Commerciali, C‑465/04, EU:C:2006:199, paragraph 19, and Quenon K., C‑338/14, EU:C:2015:795, paragraph 23). The Court has already held that Article 17 of that directive is, in that regard, of particular importance (see, to that effect, judgment in Unamar, C‑184/12, EU:C:2013:663, paragraph 39). It is therefore necessary to interpret the wording of Article 17(2) in a manner which contributes to that protection of the commercial agent and which therefore takes full account of the merits of the latter in carrying out the transactions assigned to him. The concept of ‘new customers’, within the meaning of that provision, may not therefore be construed restrictively.
40


That analysis is supported by the fact that the sale of the goods generally takes place in a different setting depending on the brands to which they belong. In that regard, the Court has already held that a brand is often, in addition to being an indication of the origin of the goods or services, an instrument of commercial strategy used for, inter alia, advertising purposes or to acquire a reputation in order to develop consumer loyalty (judgment in Interflora and Interflora British Unit, C‑323/09, EU:C:2011:604, paragraph 39).
42


As regards, finally, Marchon’s argument that it is easier for commercial agents to place new goods with persons who already have business relations with the principal, that assertion, even if considered to be proven, could be fully taken into account by the national court in the course of its analysis seeking to ascertain, in conformity with the second indent of Article 17(2) of Directive 86/653, the equitable nature of his indemnity (see, by way of analogy, judgment in Volvo Car Germany, C‑203/09, EU:C:2010:647, paragraph 44).