Derogation from the commercial agent's right to commission

The commercial agent may be contractually derogated from the right conferred by Directive 86/653/EEC to receive a commission for the transaction concluded, during the term of the agency contract, with a third party whose clientele this agent has previously obtained for transactions of the same kind.

The Court of Justice of the European Union has received a request from the Supreme Court of Poland for interpretation of Article 7 (1) (b) of Directive 86/653/EEC on the coordination of the rights of the Member States relating to self-employed commercial agents.

Article 135 (1) of the VAT Directive provides:

“1. For a commercial transaction concluded during the term of the agency agreement, the commercial agent is entitled to commission:

a)where the transaction has been concluded as a result of his action ;
or
( b ) where the transaction is concluded with a third party whom he has previously acquired as a customer for transactions of the same kind .


In French law, this provision has been transposed into Article L134-6 of the Commercial Code.


This request was made in the context of a dispute between a Polish bank and its agent, concerning the transmission of the information necessary to allow the latter to determine the amount of commissions due in connection with the contracts concluded by the bank with the customers presented by the agent.

The referring court asked the Court whether Article 7 (1) (b) of Directive 86/653 should be interpreted as meaning that the right conferred by that provision cannot be derogated from contractually The Independent Commercial Agent to receive a commission for the concluded transaction, for the duration of the Agency Agreement, with a third party whose clientele this agent has previously obtained for transactions of the same kind.

The Advocate General noted that the wording of this provision uses the conjunction “or”, the Union legislature therefore intended to propose a choice to the parties.

The mandatory nature of Article 7 (1) (b) of Directive 86/653 is therefore not explicitly stated in the Directive.

Furthermore, it noted that a mandatory interpretation of Article 7 (1) (b) of Directive 86/653 would not necessarily lead to increased protection for commercial agents. Indeed, it cannot be excluded that some principals would offset the cost of the commission in question by reducing the base commission rate, limiting or excluding previously reimbursed expenses or other elements of remuneration, or even renouncing to enter into a contractual relationship with a commercial agent

The Court took into account, in its interpretation, the context in which it takes place and the objectives pursued by the said Directive. It recalls the second and third recitals of the text, which specify that the directive aims to protect PART IV COMMERCIAL AGENTS in their relations with their principals, to promote the security of commercial operations and to facilitate the trade of goods between Member States by approximating the legal systems of the latter in the field of commercial representation.