JUDGMENT OF THE COURT (Fourth Chamber)

19 April 2018 ( *1 )

(Reference for a preliminary ruling — Self-employed commercial agents — Directive 86/653/EEC — Right of the commercial agent to an indemnity or compensation for damage following termination of the commercial agency contract — Article 17 — Exclusion from the right to indemnity in the event of termination of the contract during the trial period provided for in the contract)

In Case C‑645/16,

REQUEST for a preliminary ruling under Article 267 TFEU from the Cour de cassation (Court of Cassation, France), made by decision of 6 December 2016, received at the Court on 15 December 2016, in the proceedings

Conseils et mise en relations (CMR) SARL

v

Demeures terre et tradition SARL,

THE COURT (Fourth Chamber),

composed of T. von Danwitz, President of the Chamber, C. Vajda, E. Juhász, K. Jürimäe (Rapporteur) and C. Lycourgos, Judges,

Advocate General: M. Szpunar,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–

Demeures terre et tradition SARL, by F. Molinié, avocat,

–

the French Government, by D. Colas and R. Coesme, acting as Agents,

–

the German Government, by T. Henze and M. Hellmann, acting as Agents,

–

the European Commission, by J. Hottiaux and H. Tserepa-Lacombe, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 25 October 2017,

gives the following

Judgment

1

This request for a preliminary ruling concerns the interpretation of Article 17 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 (OJ 1986 L 382, p. 17).

2

The request has been made in proceedings between Conseils et mise en relations (CMR) SARL and Demeures terre et tradition SARL (‘DTT’) concerning an application by CMR for payment of, first, compensation for the loss arising from the termination of a commercial agency contract it had with DTT and, second, damages it alleges it is owed as a result of the wrongful termination of that contract.

Legal context

European Union law

3

The second and third recitals of Directive 86/653 state as follows:

‘… the differences in national laws concerning commercial representation substantially affect the conditions of competition and the carrying-on of that activity within the [European Union] and are detrimental both to the protection available to commercial agents vis-à-vis their principals and to the security of commercial transactions; … moreover, those differences are such as to inhibit substantially the conclusion and operation of commercial representation contracts where principal and commercial agent are established in different Member States;

… trade in goods between Member States should be carried on under conditions which are similar to those of a single market, and this necessitates approximation of the legal systems of the Member States to the extent required for the proper functioning of the common market; … in this regard the rules concerning conflict of laws do not, in the matter of commercial representation, remove the inconsistencies referred to above, nor would they even if they were made uniform, and accordingly the proposed harmonisation is necessary notwithstanding the existence of those rules’.

4

Article 1 of Directive 86/653 provides:

‘1.   The harmonisation measures prescribed by this Directive shall apply to the laws, regulations and administrative provisions of the Member States governing the relations between commercial agents and their principals.

2.   For the purposes of this Directive, “commercial agent” shall mean a self-employed intermediary who has continuing authority to negotiate the sale or the purchase of goods on behalf of another person, hereinafter called the “principal”, or to negotiate and conclude such transactions on behalf of and in the name of that principal.

…’

5

Article 17(1) to (3) of that directive provides:

‘1.   Member States shall take the measures necessary to ensure that the commercial agent is, after termination of the agency contract, indemnified in accordance with paragraph 2 or compensated for damage in accordance with paragraph 3.

(a)

The commercial agent shall be entitled to an indemnity if and to the extent that:

–

he has brought the principal new customers or has significantly increased the volume of business with existing customers and the principal continues to derive substantial benefits from the business with such customers, and

–

the payment of this indemnity is equitable having regard to all the circumstances and, in particular, the commission lost by the commercial agent on the business transacted with such customers. …

(b)

The amount of the indemnity may not exceed a figure equivalent to an indemnity for one year calculated from the commercial agent’s average annual remuneration over the preceding five years and if the contract goes back less than five years the indemnity shall be calculated on the average for the period in question;

(c)

The grant of such an indemnity shall not prevent the commercial agent from seeking damages.

3.   The commercial agent shall be entitled to compensation for the damage he suffers as a result of the termination of his relations with the principal.

Such damage shall be deemed to occur particularly when the termination takes place in circumstances:

–

depriving the commercial agent of the commission which proper performance of the agency contract would have procured him whilst providing the principal with substantial benefits linked to the commercial agent’s activities,

–

and/or which have not enabled the commercial agent to amortise the costs and expenses that he had incurred for the performance of the agency contract on the principal’s advice.’

6

Article 18 of that directive is worded as follows:

‘The indemnity or compensation referred to in Article 17 shall not be payable:

(a)

where the principal has terminated the agency contract because of default attributable to the commercial agent which would justify immediate termination of the agency contract under national law;

(b)

where the commercial agent has terminated the agency contract, unless such termination is justified by circumstances attributable to the principal or on grounds of age, infirmity or illness of the commercial agent in consequence of which he cannot reasonably be required to continue his activities;

(c)

where, with the agreement of the principal, the commercial agent assigns his rights and duties under the agency contract to another person.’

7

Article 19 of Directive 86/653 states:

‘The parties may not derogate from Articles 17 and 18 to the detriment of the commercial agent before the agency contract expires.’

French law

8

Article L. 134-12 of the code de commerce (Commercial Code) provides as follows:

‘In the event of termination of its relations with the principal, the commercial agent shall be entitled to compensation for loss suffered.

The commercial agent shall lose the right to compensation if he has not notified the principal within a period of one year from termination of the contract that he wishes to assert his rights.

The commercial agent’s successors in title shall also be entitled to compensation where termination of the contract is occasioned by the death of the agent.’

The dispute in the main proceedings and the question referred for a preliminary ruling

9

On 2 December 2011, DTT entered into a commercial agency contract with CMR concerning the sale of individual houses. Under this contract, DTT and CMR had the status of principal and agent respectively. There was provision under the contract for a trial period of 12 months, at the end of which the contract would be deemed to be for an indefinite period, each party having the right to terminate during the course of the trial period, subject to the giving of 15 days’ notice during the first month and one month’s notice thereafter. The commercial agency contract laid down a target to be achieved of 25 sales per annum.

10

By letter of 12 June 2012, DTT notified CMR of its decision to terminate the contract at the end of the contractual notice period of one month. That decision was based on