Opinion of Advocate General Ćapeta delivered on 24 November 2022.

• Jurisdiction: European Union
• Celex Number: 62021CC0574
• ECLI: ECLI:EU:C:2022:931
• Date: 24 November 2022
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

ĆAPETA

delivered on 24 November 2022(1)

Case C‑574/21

QT

v

O2 Czech Republic a.s.

(Request for a preliminary ruling from the Nejvyšší soud (Supreme Court, Czech Republic))

(Reference for a preliminary ruling – Directive 86/653/EEC – Article 17(2)(a) – Self-employed commercial agents – Entitlement to an indemnity after termination of the agency contract – Method of calculation – Concept of ‘the commission lost by the commercial agent’ – One-off commission payments)

I. Introduction

1. Article 17(2)(a) 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 (2) establishes the right of a commercial agent to obtain a sum of money referred to as an indemnity from the principal after the termination of the agency contract.

2. This reference for a preliminary ruling submitted by the Nejvyšší soud (Supreme Court, Czech Republic) raises a question of interpretation of that provision. More precisely, it concerns the interpretation of the concept of ‘the commission lost by the commercial agent’ (which I will refer to as ‘lost commission’) contained therein.

3. The present case also raises some broader issues in connection with the conditions for the indemnity to arise and the method of calculation of the indemnity under Directive 86/653.

II. The facts in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court

4. QT concluded an agency contract with the legal predecessor of O2 Czech Republic a.s. (‘O2 Czech Republic’) on 1 January 1998. Under that contract, QT and O2 Czech Republic had the status of commercial agent and principal, respectively.

5. The agency contract concerned the offer and sale of telecommunications services provided by O2 Czech Republic in the NMT 450 and GSM systems, the supply and sale of mobile telephones, accessories and other potential products, and customer care.

6. Pursuant to the agency contract, QT was paid a one-off commission for each individual contract that he concluded for O2 Czech Republic. As explained by O2 Czech Republic at the hearing before the Court, if QT negotiated the conclusion of a new contract with the same customer who he had already brought in (for instance, the extension of the subscription), he would receive a one-off commission payment for that new contract. If, however, a new contract was concluded by O2 Czech Republic with the same customer through a different agent, the one-off commission would be paid to that agent. If O2 Czech Republic concluded a new contract with the same customer directly, no commission would be paid.

7. On 31 March 2010, O2 Czech Republic terminated the agency contract.

8. QT brought proceedings before the Obvodní soud pro Prahu 4 (District Court Prague 4, Czech Republic), requesting that O2 Czech Republic pay him CZK 2 023 799 Czech koruna (CZK) (approximately EUR 80 000), plus default interest, based on his right to receive an indemnity under the Czech legislation which transposes Article 17(2)(a) of Directive 86/653.

9. Initially, by judgment of 14 September 2015, the Obvodní soud pro Prahu 4 (District Court Prague 4), the court of first instance, granted QT’s application in part. However, in its ruling of 16 March 2016, the Městský soud v Praze (Prague City Court, Czech Republic), the appeal court, set aside that judgment on the basis of O2 Czech Republic’s appeal, on the grounds of inadequate finding of facts, returning the case to the court of first instance for rehearing.

10. In its second judgment of 30 January 2019, the Obvodní soud pro Prahu 4 (District Court Prague 4) dismissed QT’s application. The court of first instance concluded that QT had failed to demonstrate that O2 Czech Republic derived substantial benefits from customers acquired by QT after the termination of the agency contract. QT lodged an appeal against that judgment.

11. By judgment of 27 November 2019, the Městský soud v Praze (Prague City Court) upheld the judgment of the court of first instance rejecting QT’s application. The appeal court emphasised that the commission for the brokerage of the transactions was one-off and that all such commission payments had been duly made to QT, stating that QT’s arguments based on the commission to which he would have hypothetically become entitled by the conclusion of further transactions, whether with new or existing customers, did not justify the right to an indemnity. According to that court, although QT brought in new customers and developed business with existing customers from which O2 Czech Republic may have derived benefits after termination of the agency contract, O2 Czech Republic had already paid commission to QT for such transactions under the agency contract and thus the payment of an indemnity would not be equitable.

12. QT brought an appeal against the judgment of the Městský soud v Praze (Prague City Court) before the Nejvyšší soud (Supreme Court), the referring court in the present case.

13. According to the order for reference, QT did acquire new customers for O2 Czech Republic in 2006 and 2007, or entered into additional contracts with existing customers, for example, for other products or extending their existing contracts, but, even taking into account the duration of the maximum tariff commitments, which in the years concerned was a maximum of 30 months, they did not extend beyond 31 March 2010, when the agency contract was terminated. In respect of the period between 2008 and 2009, a total of 431 commitments went beyond 31 March 2010, of which 155 were new contracts and 276 were changed commitments. Therefore, QT has proven that he had brought new customers to O2 Czech Republic and also developed business with existing customers. For such activities, QT was duly paid by O2 Czech Republic.

14. The referring court explains that the legislation in the Czech Republic is based on the indemnity regime, having transposed the solution set out in Article 17(2) of Directive 86/653.

15. The referring court also explains, and this was repeated by the Czech Government at the hearing before the Court, that, in its case-law, it has interpreted lost commission as commission to which the agent is entitled on the basis of the transactions that were already concluded before the termination of the agency contract.

16. The referring court points out, however, that the opposite trend can be found in German case-law and literature. There, the opinion prevails that lost commission includes commission for the conclusion of contracts that the agent would otherwise have received, had the commercial agency relationship endured, from future transactions between the principal and the customers who the agent had brought to the principal or with whom the agent significantly developed business.

17. Consequently, the referring court queries how the concept of lost commission in the second indent of Article 17(2)(a) of Directive 86/653 should be construed. Taking the view that the interpretation of that provision is essential to the decision concerning the entitlement of a commercial agent to indemnity in the case at hand, the referring court, as a court of last instance, considered that it was obliged to make a reference in accordance with Article 267 TFEU.

18. In those circumstances, the Nejvyšší soud (Supreme Court) decided to stay the main proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘Must the expression “the commission lost by the commercial agent,” within the meaning of Article 17(2)(a), second indent, of [Directive 86/653], be interpreted to the effect that such commissions include commissions for the conclusion of contracts which a commercial agent would have entered into had the commercial agency [contract] endured, with the customers that he or she brought the principal or with which he or she significantly increased the volume of business?

If so, subject to what conditions does this conclusion apply to “one-off commissions” for the conclusion of a contract?’

19. Written observations were submitted to the Court by QT, O2 Czech Republic, the Czech and German Governments and the European Commission. A hearing was held on 15 September 2022 at which O2 Czech Republic, the Czech and German Governments and the Commission presented oral argument.

III. Legal framework

A. European Union law

20. Article 17 of Directive 86/653 provides, in so far as relevant:

‘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. Member States may provide for such circumstances also to include the application or otherwise of a restraint of trade clause, within the meaning of Article 20;

(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.’

B. Czech law

21. Paragraph 669 of zákon č. 513/1991 Sb., obchodní zákoník (Law No 513/1991 on the...