CJEU, 7th chamber, April 23, 2026, No C-204/25

1.This request for a preliminary ruling concerns the interpretation of Article 15(2) and of Article 19 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 proceedings between Kempen Advies Beerse BV, Compagnie LLC BV, FP Verzekeringen BV (‘the applicant companies') and OL, on the one hand, and Bank Nagelmackers NV on the other, concerning the validity of an agreement concluded between those parties after Bank Nagelmackers had terminated three commercial agency contracts which it had concluded with the applicant companies.

Legal context

European Union law

3.The second and third recitals of Directive 86/653 state 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 [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; 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.Article 1 of that directive 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 15(1) and (2) of that directive read:

‘1.Where an agency contract is concluded for an indefinite period either party may terminate it by notice.

2.The period of notice shall be one month for the first year of the contract, two months for the second year commenced, and three months for the third year commenced and subsequent years. The parties may not agree on shorter periods of notice.'

6.Article 17 of that directive states:

‘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.

2.(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.

7.Article 18 of Directive 86/653 sets out the scenarios wherein the indemnity or compensation referred to in Article 17 of that directive shall not be payable, inter alia where the termination of the agency contract is attributable to default of the commercial agent or where, with the agreement of the principal, the commercial agent assigns his rights and duties under the agency contract to another person.

8.Article 19 of that directive provides that ‘the parties may not derogate from Articles 17 and 18 to the detriment of the commercial agent before the agency contract expires.'

Belgian law

9.The provisions governing commercial agency contracts were introduced into the Wetboek van economisch recht (Code of Economic Law) by Article 3 of the loi du 2 avril 2014 portant insertion du livre X ‘Contrats d'agence commerciale, contrats de coopération commerciale et concessions de vente' dans le Code de droit économique, et portant insertion des définitions propres au livre X, dans le livre 1er du Code de droit économique (Law of 2 April 2014 on the introduction of Chapter X ‘Commercial agent contracts, contracts for commercial cooperation and dealership agreements' into the Code of Economic Law, and inserting definitions relating to Chapter X into Chapter I of the Code of Economic Law) (Moniteur belge of 28 April 2014, p. 35053).

10.The first and second paragraphs of Article X.16(1) of the Code of Economic Law, as modified by that law (‘the Code of Economic Law'), provide:

‘Where a commercial agency contract is concluded for an indefinite period or for a fixed term with the possibility of early termination, either party shall be entitled to terminate the contract by notice.

The notice period is one month during the first year of the contract. After the first year, the notice period is increased by one month for each additional year that has commenced, without that period exceeding six months and without prejudice to the provisions of the third paragraph. The parties may not agree on shorter notice periods.'

11.As set out in the first paragraph of Article X.18 of the Code of Economic Law:

‘After termination of the contract, the commercial agent shall be entitled to a goodwill indemnity if he has brought the principal new customers or if he has significantly increased the volume of business with existing customers, in so far as the principal can continue to derive substantial benefits therefrom.'

12.Article X.19 of that code provides:

‘In so far as the commercial agent is entitled to the indemnity referred to in Article X.18 and the amount of such indemnity does not fully indemnify the agent for the loss actually incurred, the commercial agent may, subject to proof of the actual extent of the loss claimed, obtain damages, in addition to that indemnity, in the sum of the difference between the amount of the loss actually incurred and the amount of that indemnity.'

13.Article X.21 of that code provides:

‘The parties may not derogate from Articles X.18, X.19 and X.20 to the detriment of the commercial agent before the commercial agency contract expires.'

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

14.Bank Nagelmackers concluded three commercial agency contracts with Kempens Advies Beerse, Compagnie LLC and FP Verzekeringen, on 22 May 2003, 22 December 2006 and 31 January 2006, respectively.

15.By a registered letter dated 8 July 2016, Bank Nagelmackers terminated those three agency contracts with different notice periods, ranging from one to six months and, in the case of two of them, with an indemnity in lieu of notice.

16.On 27 October 2016, Bank Nagelmackers and the applicant companies reached a general agreement governing the indemnity in lieu of notice, the goodwill indemnity, and the additional indemnity owed to them on account of the termination of those contracts (‘the general agreement').

17.Subsequently, considering the general agreement to have been concluded under pressure from Bank Nagelmackers, the applicant companies and OL brought an action against Bank Nagelmackers before the Nederlandstalige ondernemingsrechtbank Brussel (Brussels Business Court (Dutch-speaking), Belgium), seeking the annulment of that agreement on the basis, inter alia, of the mandatory provisions of Chapter X of the Code of Economic Law.

18.By judgment of 12 March 2020, that court dismissed that action on the ground that the applicant companies had recovered their freedom of contract as soon as their commercial agency contracts had been terminated, that is to say the date on which each commercial agent became aware of the termination of its contract, even if the performance of that contract continued until the date of expiry of the notice period. According to that court, once those companies determined the amount of the indemnity in lieu of notice, the goodwill indemnity and the additional indemnity in the general agreement, they were able to freely dispose of their rights.

19.The applicant companies and OL appealed that judgment before the hof van beroep te Brussel (Brussels Court of Appeal, Belgium), which, by judgment of 19 June 2023, declared the appeal admissible but unfounded.

20.The applicant companies and OL brought an appeal on a point of law against that judgment before the Hof van Cassatie (Court of Cassation, Belgium), which is the referring court. In support of their appeal, those companies and OL argue that the general agreement is contrary to the mandatory provisions of the Code of Economic Law. They submit that the effect of the mandatory character of those provisions is that, as long as a commercial agency contract has not ended, the commercial agents concerned should not have to tolerate a shorter notice period or a lower goodwill indemnity than that provided for by those provisions. That commercial agent cannot legitimately waive the protection provided to it by those provisions or agree to less extensive protection before the end of the collaboration. A commercial agency contract comes to an end only on the date of expiry of the notice period set by the principal and not merely upon the termination of the contract.

21.That court considers that it is clear from the case-law of the Court of Justice that Articles 17 and 19 of Directive 86/653 are intended to protect the commercial agent after the termination of a contract and are mandatory in nature. The referring court is of the view that the dispute brought before it can be resolved only by answering the question of the date on which the commercial agency contract may be considered as having expired, for the purposes of Article 15(2) and Article 19 of Directive 86/653.

22.In those circumstances, the Hof van Cassatie (Court of Cassation) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Is a commercial agency contract to be [regarded] as [having expired], within the meaning of [Article] 15(2) and [Article] 19 of [Directive 86/653], at the time of the actual termination of the commercial agency contract, that is to say, after the expiry of the period of notice, or at the time when the commercial agent becomes aware or could reasonably have become aware of the termination of the commercial agency contract?'

Consideration of the question referred

23.By its question, the referring court asks, in essence, whether Article 15(2) and Article 19 of Directive 86/653 must be interpreted as meaning that a commercial agency contract expires on the date on which the commercial agent becomes aware or could reasonably have become aware of the termination of that contract or only on the date of expiry of the notice period.

24.Article 15(2) of that directive sets out the minimum notice period to terminate a commercial agency contract concluded for an indefinite period. Article 19 of that directive forbids parties to such a contract from derogating, before the expiry of that contract, from the provisions of Articles 17 and 18 of that directive to the detriment of the commercial agent. However, neither Article 15(2) nor Article 19 define the date at which those parties regain their freedom to derogate from the mandatory protection of the commercial agent.

25.In order to determine the scope of those provisions of EU law, it is therefore necessary to take into account not only their wording, but also the context in which they occur and the objectives they pursue.

26.First, as regards the objectives of Directive 86/653, it is clear from the second and third recitals of that directive that it seeks, inter alia, to protect commercial agents in their relations with their principals (judgments of 23 March 2006, Honyvem Informazioni Commerciali, C ‑ 465/04, EU:C:2006:199, paragraph 19; of 26 March 2009, Semen, C ‑ 348/07, EU:C:2009:195, paragraph 14, and of 19 April 2018, CMR, C ‑ 645/16, EU:C:2018:262, paragraph 33).

27.The purpose of Articles 17 to 19 of that directive, in particular, is to protect the commercial agent after termination of the contract. The system established by that directive for that purpose is mandatory in nature, which is confirmed by the fact that, under Article 19 of Directive 86/653, the parties may not derogate from it to the detriment of the commercial agent before the contract expires (see, to that effect, judgments of 9 November 2000, Ingmar, C ‑ 381/98, EU:C:2000:605, paragraphs 21 and 22; of 23 March 2006, Honyvem Informazioni Commerciali, C ‑ 465/04, EU:C:2006:199, paragraph 22; and of 19 April 2018, CMR, C ‑ 645/16, EU:C:2018:262, paragraph 34).

28.Since the interpretation of Articles 17 to 19 of that directive must be considered in the light of that objective and that system (judgment of 23 March 2006, Honyvem Informazioni Commerciali, C ‑ 465/04, EU:C:2006:199, paragraph 17), any interpretation of those articles which may prove to be detrimental to the commercial agent is not permissible (see, to that effect, judgments of 26 March 2009, Semen, C ‑ 348/07, EU:C:2009:195, paragraph 21, and of 19 April 2018, CMR, C ‑ 645/16, EU:C:2018:262, paragraph 35). It is therefore necessary to interpret those articles in a manner which contributes to the protection of the commercial agent (see, to that effect, judgment of 7 April 2016, Marchon Germany, C ‑ 315/14, EU:C:2016:211, paragraph 33).

29.It thus follows from Article 19 of Directive 86/653 that a derogation from the provisions of Article 17 of that directive may be accepted only if, ex ante, there is no possibility that at the end of the contract that derogation will prove to be detrimental to the commercial agent (judgment of 23 March 2006, Honyvem Informazioni Commerciali, C ‑ 465/04, EU:C:2006:199, paragraph 27).

30.Second, it should be observed that, until the date of expiry of the notice period required by Article 15(1) and (2) of that directive, the commercial agent is still required to carry out the contract and is dependent, in that regard, on the fulfilment of the obligations incumbent upon the principal as provided for in Chapters II and III of that directive, in particular as regards remuneration.

31.It follows that the termination of an agency contract does not put an end to the economic dependence of the commercial agent with regard to the principal and, accordingly, the inequality between the parties. It is only after the actual termination of the obligations inherent in that contract, at the end of the notice period, that that agent is no longer dependent on the professional income from the principal that it was representing.

32.Furthermore, Article 17(2)(a) of Directive 86/653 provides that the commercial agent is entitled to an indemnity if and to the extent that the payment of that indemnity is equitable having regard to all the circumstances and, in particular, the commission lost by the commercial agent on the business transacted with new customers whom it has brought to the principal or customers with whom it has significantly increased the volume of business.

33.However, as the Commission points out in its written observations, it cannot be ruled out that a principal may terminate an agency contract as soon as a commercial relationship has developed between that principal and the customers brought by the commercial agent concerned, so as to limit the amount of the indemnity owed. It is likely that the sooner that contract comes to an end, the greater the reduction in the amount of that indemnity.

34.Third, it should be noted that, in accordance with Article 15(2) of Directive 86/653, the parties may not agree on shorter periods of notice than those laid down by that provision, which demonstrates the intention of the EU legislature to protect the commercial agent throughout the entire notice period.

35.It follows that, if an agency contract terminated in accordance with Article 15 of Directive 86/653 had to be regarded as having expired, within the meaning of Article 19 of that directive, from the date on which the commercial agent becomes aware or could reasonably have become aware of the termination of that contract, the protection of that commercial agent vis-à-vis the principal would be diminished, which would run counter to the objectives pursued by that directive. Since the need for that protection falls away only on the date of expiry of the notice period, it is on that date that the agency contract expires.

36.In the light of the foregoing considerations, the answer to the question referred is that Article 15(2) and Article 19 of Directive 86/653 must be interpreted as meaning that a commercial agency contract does not expire on the date on which the commercial agent becomes aware or could reasonably have become aware of the termination of that contract, but only on the date of expiry of the notice period.

Costs

37.Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring 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 (Seventh Chamber) hereby rules:

Article 15(2) and Article 19 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 a commercial agency contract does not expire on the date on which the commercial agent becomes aware or could reasonably have become aware of the termination of that contract, but only on the date of expiry of the notice period.