CJEU, 3rd chamber, October 13, 2022, No C-64/21

THE COURT (Third Chamber),

1 This request for a preliminary ruling concerns the interpretation of Article 7(1)(b) 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 was made in the context of a dispute between Rigall Arteria Management sp. z o.o. sp.k. and Bank Handlowy w Warszawie S.A. (hereinafter ‘Bank Handlowy’) concerning the supply of necessary information to enable the former to determine the amount of commission allegedly due to it in relation to contracts entered into by Bank Handlowy with clients previously acquired as customers through Rigall Arteria Management.

Legal context

European Union law

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

‘Whereas the differences in national laws concerning commercial representation substantially affect the conditions of competition and the carrying-on of that activity within the Community and are detrimental both to the protection available to commercial agents vis-à-vis their principals and to the security of commercial transactions; whereas 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;

Whereas 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; whereas 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 According to Article 1(2) of that directive:

‘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 Chapter III of that directive is entitled ‘Remuneration’. It comprises Articles 6 to 12. The first of those articles provides:

‘1. In the absence of any agreement on this matter between the parties, and without prejudice to the application of the compulsory provisions of the Member States concerning the level of remuneration, a commercial agent shall be entitled to the remuneration that commercial agents appointed for the goods forming the subject of his agency contract are customarily allowed in the place where he carries on his activities. If there is no such customary practice a commercial agent shall be entitled to reasonable remuneration taking into account all the aspects of the transaction.

2. Any part of the remuneration which varies with the number or value of business transactions shall be deemed to be commission within the meaning of this Directive.

3. Articles 7 to 12 shall not apply if the commercial agent is not remunerated wholly or in part by commission.’

6 Article 7(1) of the directive provides:

‘1. A commercial agent shall be entitled to commission on commercial transactions concluded during the period covered by the agency contract:

(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.’

7 Article 10 of Directive 86/653 provides:

‘1. The commission shall become due as soon as and to the extent that one of the following circumstances obtains:

(a) the principal has executed the transaction; or

(b) the principal should, according to his agreement with the third party, have executed the transaction; or

(c) the third party has executed the transaction.

2. The commission shall become due at the latest when the third party has executed his part of the transaction or should have done so if the principal had executed his part of the transaction, as he should have.

3. The commission shall be paid not later than on the last day of the month following the quarter in which it became due.

4. Agreements to derogate from paragraphs 2 and 3 to the detriment of the commercial agent shall not be permitted.’

8 Article 11 of that directive is worded as follows:

‘1. The right to commission can be extinguished only if and to the extent that:

– it is established that the contract between the third party and the principal will not be executed, and

– that fac[t] is due to a reason for which the principal is not to blame.

2. Any commission which the commercial agent has already received shall be refunded if the right to it is extinguished.

3. Agreements to derogate from paragraph 1 to the detriment of the commercial agent shall not be permitted.’

9 Under Article 12 of that directive:

‘1. The principal shall supply his commercial agent with a statement of the commission due, not later than the last day of the month following the quarter in which the commission has become due. This statement shall set out the main components used in calculating the amount of commission.

2. A commercial agent shall be entitled to demand that he be provided with all the information, and in particular an extract from the books, which is available to his principal and which he needs in order to check the amount of the commission due to him.

3. Agreements to derogate from paragraphs 1 and 2 to the detriment of the commercial agent shall not be permitted.

…’

Polish law

10 Article 7(1) of Directive 86/653 was transposed into Polish law by Article 761(1) of the ustawa – Kodeks cywilny (Law establishing the Civil Code) of 23 April 1964 (Dz. U. 2019, item 1145) (‘the Civil Code’). Under that provision:

‘The agent may demand a commission on contracts concluded during the term of the agency contract, if they have been concluded as a result of his activities or if they have been concluded with customers previously acquired by the agent for contracts of the same kind.’

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

11 Rigall Arteria Management and Bank Handlowy were bound by agency contracts between 1 June 1999 and 30 June 2015. The last of those contracts took the form of a framework contract, supplemented by specific agency contracts. The contracts concluded between the parties in the main proceedings concerned the performance of a business of financial intermediation, including brokering in the exercise of ancillary and promotional activities related to the service and purchase of credit cards and other financial services offered by Bank Handlowy.

12 Those contracts specified the method of remuneration of the agent and required, inter alia, the calculation thereof on the basis of the number of contracts concluded. In most cases, this was a specific amount paid per credit card issued or per loan application successfully processed. None of those contracts defined any form of remuneration by commission other than that payable in respect of contracts concluded with the direct involvement of the agent. Furthermore, at the end of the agency contract, the agent was entitled to a pecuniary compensation the amount of which was fixed in the contract. That contract also stated that that amount constituted final payment of the full amount of the compensatory payment to which the employee was entitled.

13 Following Bank Handlowy’s termination of the framework contract on 17 December 2014, Rigall Arteria Management asked it to provide information on the commission payable to it for the period from 1 June 1999 to 31 January 2015. In response to repeated requests, Bank Handlowy claimed that the information provided up to that point corresponded to the total remuneration due under the agency agreements concluded and that, consequently, there was no reason to send any further information. Bank Handlowy maintained, moreover, that the information requested was covered by banking secrecy.

14 Following that refusal, Rigall Arteria Management applied to the Sąd Okręgowy w Warszawie (Regional Court, Warsaw, Poland) for disclosure of the information necessary to calculate the amount of the commission due for the duration of the contract.

15 The Sąd Okręgowy w Warszawie (Regional Court, Warsaw) dismissed the action by judgment of 20 June 2016, on the ground that the declarations submitted by the principal during the term of the agency contract were complete and that the agent had not raised any objections to the amount of the commission which he had calculated. That court also held that it was not apparent from the terms of the contracts between the parties that the agent was entitled to claim commission on the contracts concluded by the bank with customers previously acquired by the agent. It also confirmed Bank Handlowy’s position that part of the information requested by the agent was covered by banking secrecy.

16 The Sąd Apelacyjny w Warszawie (Court of Appeal, Warsaw, Poland) dismissed the appeal brought by Rigall Arteria Management by judgment of 28 February 2018. It upheld the essential reasoning of the court at first instance. It also held that Rigall Arteria Management’s action was justified only in so far as the agent could be entitled to claim payment of the type of remuneration to which the information requested related. The appeal court took the view that such a situation did not arise in the circumstances of the present case.

17 According to the Sąd Apelacyjny w Warszawie (Court of Appeal, Warsaw), remuneration under contracts concluded with customers from whom an agent has previously obtained customers in accordance with Article 761(1) of the Civil Code is based on supplementary rules. According to that court, it was apparent both from the absence of any reference to that form of commission in the text of the contract and from the conduct of the parties during its performance that those parties had implicitly excluded the agent’s entitlement to commission.

18 Rigall Arteria Management brought an appeal on a point of law against the judgment of the Sąd Apelacyjny w Warszawie (Court of Appeal, Warsaw) before the Sąd Najwyższy (Supreme Court, Poland), the referring court in the present case.

19 Before that court, Rigall Arteria Management relied, among the pleas raised in support of its appeal, on infringement of Article 761(1) of the Civil Code, interpreted in the light of Article 7(1)(b) of Directive 86/653, in so far as that provision had been regarded as supplementary. According to Rigall Arteria Management, the rule laid down in that provision cannot be excluded by an agency contract to the detriment of the agent. In its response to the appeal on a point of law, Bank Handlowy contested that claim, arguing in favour of the entirely supplementary nature of Article 761(1) of the Civil Code.

20 The Sąd Najwyższy (Supreme Court) has doubts as to the interpretation of Article 7(1)(b) of Directive 86/653. First, the wording of the provisions of that directive could indicate that only those in respect of which it is clearly stated are supplementary in nature. Secondly, the objective of that directive, which is to protect the commercial agent, suggests that it should be interpreted as a whole in a manner which prevents any contractual derogation to the detriment of the rights conferred on the agent.

21 Furthermore, Articles 7 to 12 of that directive establish a coherent and ‘closed’ scheme of provisions in respect of the agent’s remuneration, which can be removed only in its entirety and replaced by another scheme established by the parties themselves. Thus, those provisions merely make it possible to replace the commission scheme with another remuneration scheme for the commercial agent, and not to exclude certain particular elements from it.

22 The conclusion that the right to commission under Article 7(1)(b) of Directive 86/653 cannot be excluded or derogated from to the detriment of the commercial agent is also convincing from a functional point of view in view of the practical impossibility for commercial agents to negotiate contracts drawn up unilaterally by principals.

23 In those circumstances, the Sąd Najwyższy (Supreme Court) decided to stay the main proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘In the light of the wording and purpose of Article 7(1)(b) of [Directive 86/653], must that provision be understood as conferring on a self-employed commercial agent an absolute right to commission on a contract concluded during the term of an agency contract with a third party whom he or she has previously acquired as a customer for transactions of the same kind, or may that entitlement be contractually excluded?’

The jurisdiction of the Court

24 As a preliminary point, it should be noted that the contract at issue in the main proceedings concerns the sale of financial services. That type of contract does not fall within the scope of Directive 86/653, which applies, according to the definition of the concept of ‘commercial agent’ set out in Article 1(2) thereof, only to commercial agents who have continuing authority either to negotiate or to negotiate and conclude the sale or purchase of goods.

25 However, it follows from settled case-law that where domestic legislation adopts the same solutions as those adopted in EU law in order, in particular, to avoid discrimination against foreign nationals or any distortion of competition, or to ensure a single procedure in comparable situations, it is clearly in the European Union’s interest that, in order to forestall future differences of interpretation, provisions or concepts taken from EU law should be interpreted uniformly, irrespective of the circumstances in which they are to apply (see, to that effect, judgment of 17 May 2017, ERGO Poist’ovňa, C‑48/16, EU:C:2017:377, paragraph 29 and the case-law cited).

26 In that regard, it is apparent from the information provided by the referring court in response to a request for clarification from the Court that, when transposing Directive 86/653 into national law, the Polish legislature defined the agency contract without reference to the sale or purchase of goods, thereby reflecting its intention to treat in a uniform manner agency contracts for the sale or purchase of goods and those for the sale or purchase of services.

27 Accordingly, it must be held that the Court has jurisdiction to give a preliminary ruling on the question referred to it.

Consideration of the question referred

28 By its single question, the referring court asks, in essence, whether Article 7(1)(b) of Directive 86/653 must be interpreted as meaning that it is not possible to derogate contractually from the right which that provision confers on an independent commercial agent to receive a commission in respect of a transaction entered into, during the term of the agency contract, with a third party whom that agent previously acquired as a customer for transactions of the same kind.

29 Under Article 7(1) of Directive 86/653, a commercial agent is entitled, in respect of commercial transactions concluded during the period covered by the agency contract, to commission where the transaction has been concluded as a result of his action or where the transaction has been concluded with a third party whom he or she previously acquired as a customer for transactions of the same kind.

30 As noted by the Advocate General in point 45 of her Opinion, the wording of that provision tends to indicate, through the use of the conjunction ‘or’, that the EU legislature intended to offer a choice to the parties. It cannot, however, be inferred from that wording whether that provision is supplementary.

31 Therefore, since the mandatory nature of Article 7(1)(b) of Directive 86/653 is not expressly set out in either Article 7 or the other provisions of that directive, account must be taken, in the interpretation thereof, of the context of which that provision forms part and the objectives pursued by that directive. The legislative history of that provision may also reveal elements that are relevant to its interpretation (see, to that effect, judgment of 25 June 2020, A and Others (Wind turbines at Aalter and Nevele), C‑24/19, EU:C:2020:503, paragraph 37 and the case-law cited).

32 As regards, first of all, the context of that provision, it is apparent from the general scheme of Directive 86/653 that the EU legislature has taken care to indicate where it is not possible to derogate from one of its provisions. That is in particular the case in Article 10(4), Article 11(3) or Article 12(3) of Directive 86/653 which, in the same way as Article 7 of that directive, all appear in Chapter III of the directive, relating to the remuneration of the agent.

33 Furthermore, although the third paragraph of Article 6 of Directive 86/653 may suggest, by contrary inference, that the payment of a commercial agent, in whole or in part, by commission necessarily entails the applicability of Articles 7 to 12 of that directive, it is nevertheless apparent from the first paragraph of Article 6 of that directive that the level of the agent’s remuneration depends primarily on the agreement of the parties. Accordingly, it follows from a systematic reading of Article 6 of Directive 86/653 that if the EU legislature had intended to derogate from the principle set out in the first paragraph of that directive in one of the subsequent paragraphs, it would have stated so expressly.

34 As regards, next, the objectives pursued by Directive 86/653, it must be recalled that that directive seeks, as is clear from the second and third recitals thereof, to protect commercial agents in their relations with their principals, to promote the security of commercial transactions, and to facilitate trade in goods between Member States by harmonising their legal systems within the area of commercial representation (judgments of 23 March 2006, Honyvem Informazioni Commerciali, C‑465/04, EU:C:2006:199, paragraph 19, and of 16 February 2017, Agro Foreign Trade & Agency, C‑507/15, EU:C:2017:129, paragraph 29).

35 In that regard, it should, however, be noted that an interpretation of Article 7(1)(b) of Directive 86/653 making that provision mandatory would not necessarily lead to increased protection for commercial agents. As the Advocate General explained in point 66 of her Opinion, it cannot be ruled out that, in such circumstances, certain principals would offset the cost of the commission which would necessarily be payable for the transaction concluded, during the term of the agency contract, with a third party previously acquired as a customer by the agent for transactions of the same kind, by reducing the basic commission rate, by limiting or excluding the costs previously reimbursed or other elements of the remuneration, or even forgo entering into a contractual relationship with a commercial agent.

36 Finally, that interpretation is borne out by the legislative history of Directive 86/653. It is apparent from the Proposal for a Council Directive to coordinate the laws of the Member States relating to (self-employed) commercial agents (OJ 1977 C 13, p. 2) that the European Commission had initially proposed that the provisions from which the parties could not derogate be set out within a single article, namely Article 35 of that proposal. Although the corresponding provision in Article 7(1) of that directive appeared on that list, it was subsequently removed. Furthermore, although the very principle of a single list was finally abandoned by the EU legislature in favour of a prohibition on a case-by-case derogation, the EU legislature did not adopt that approach in respect of Article 7(1)(b) of Directive 86/653.

37 As the Advocate General observes in point 75 of her Opinion, the removal of the provision corresponding to Article 7(1)(b) of Directive 86/653 from the above list of mandatory provisions in Article 35 of the proposal for a directive referred to in the preceding paragraph of the present judgment, and the choice to specify article by article the mandatory nature of the provisions of Directive 86/653, confirm, in the absence of an express indication to that effect in Article 7(1)(b) of that directive, the supplementary nature of that provision.

38 In the light of all of the foregoing, the answer to the question referred is that Article 7(1)(b) of Directive 86/653 must be interpreted as meaning that it is possible to derogate contractually from the right which that provision confers on an independent commercial agent to receive a commission in respect of a transaction entered into, during the term of the agency contract, with a third party whom that agent previously acquired as a customer for transactions of the same kind.

Costs

39 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Third Chamber) hereby rules:

Article 7(1)(b) 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

must be interpreted as meaning that

it is possible to derogate contractually from the right which that provision confers on an independent commercial agent to receive a commission in respect of a transaction entered into, during the term of the agency contract, with a third party whom that agent previously acquired as a customer for transactions of the same kind.