| AGENCY — Agency agreement — Commercial agent — Agent for specific geographical area — Transactions concluded by customers with no action by principal — Whether agent entitled to commission — Council Directive 86/653/EEC, art 7(2))
Chevassus-Marche (Heirs of) v Groupe Danone and others (Case C-19/07); WLR (D) 5
ECJ: President of Chamber Jann, Judges Tizzano, Borg Barthet, Ilešič and Levits: 17 January 2008
On the proper interpretation of art 7(2) (first indent) of Council Directive 86/653 on self-employed commercial agents, a commercial agent entrusted with a specific geographical area did not have the right to a commission for transactions concluded by customers belonging to that area without any action, direct or indirect, on the part of the principal.
The First Chamber of the Court of Justice of the European Communities so ruled on a reference for a preliminary ruling by the Cour de cassation, France.
Art 7(2) of Directive 85/653 provides: “A commercial agent shall … be entitled to commission on transactions concluded during the period covered by the agency contract:— [first indent] …where he is entrusted with a specific geographical area or group of customers …”
Under an agency contract with the first defendant, the claimant had an exclusive mandate to represent other defendants, subsidiaries of the first defendant, in their dealings with importers and sellers of their goods in a specific geographical area of France, comprising certain French overseas territories. Following the termination of the contract, requests by the claimant for inter alia commissions on purchases by two customers in the geographical area were refused on the ground that the purchases had been made from dealers in metropolitan France outside the control of the defendants, and with no action on the part of the claimant. In the course of proceedings brought by the claimant and continued by his heirs after his death, the Cour de cassation sought from the European Court a preliminary ruling on whether a commercial agent was entitled to commission in circumstances such as those of the case.
THE COURT said that it had been held in Kontogeorgas v Kartonpak AE (Case C-104/95) [1996] ECR I-6643 that a commercial agent entrusted with a geographical area was entitled, under art 7(2) of Council Directive 86/653, to commission on transactions concluded with customers belonging to that area, even if they had been concluded without any action on his part. The question was whether that also applied where there had been no action on the part of the principal. It was true that there was no reference in art 7(2) to any requirement that the transactions referred to had to have been entered into with a customer belonging to a geographical area or a group of customers for whom the commercial agent was responsible, and there was no express requirement for action on the part of either the principal or the agent. However, art 7(2) had to be read together with art 10(1)(2), from which it followed that the agent’s right to commission arose when either the principal or the third party to the agency contract (the customer) had or should have carried out his obligation. In each instance, the presence of the principal in the transactions for which the agent could claim commission was indispensable. The commercial agent could therefore only claim commission on a transaction to the extent that the principal had acted, directly or indirectly, in the conclusion of the transaction.
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