Opinion of Advocate General Ćapeta delivered on 9 June 2022.

• Jurisdiction: European Union
• Date: 09 June 2022
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

ĆAPETA

delivered on 9 June 2022(1)

Case C‑64/21

Rigall Arteria Management Sp. z o.o. sp.k.

v

Bank Handlowy w Warszawie S.A.

(Request for a preliminary ruling from the Sąd Najwyższy (Supreme Court, Poland))

(Reference for a preliminary ruling – Directive 86/653/EEC – Article 7(1)(b) – Self-employed commercial agents – Remuneration – Entitlement to commission in respect of transactions concluded during the agency contract with customers previously acquired by the commercial agent for transactions of the same kind – Mandatory or non-mandatory rule – Possibility to derogate by contract)

I. Introduction

1. The present case arises from a request for a preliminary ruling submitted by the Sąd Najwyższy (Supreme Court, Poland) concerning 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. (2)

2. Article 7(1)(b) of Directive 86/653 provides that a commercial agent is entitled to commission on commercial transactions concluded during the period covered by the agency contract where the transaction is concluded with a third party whom the commercial agent has previously acquired as a customer for transactions of the same kind. I shall refer to this as commission on repeat transactions. (3)

3. The main issue raised by the present case is whether Article 7(1)(b) of Directive 86/653 should be construed as a mandatory or non-mandatory rule and therefore whether the parties to the agency contract may be permitted, or not, to exclude the commercial agent’s right to the commission on repeat transactions.

II. Legal framework

A. European Union law

4. Article 7(1) of Directive 86/653 provides:

‘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.’

B. Polish law

5. Article 761(1) of the Civil Code, (4) which transposes Article 7(1) of Directive 86/653 into Polish law, states:

‘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.’

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

6. According to the order for reference, Rigall Arteria Management Sp. z o.o. sp.k. (‘Rigall Arteria Management’) concluded a series of agency contracts with Bank Handlowy w Warszawie S.A. (‘Bank Handlowy’) for the period between 1 June 1999 and 30 June 2015. Under those contracts, Rigall Arteria Management and Bank Handlowy had the status of agent and principal, respectively.

7. The agency contract concerned the performance of financial intermediation services, which included intermediation in the performance of ancillary and promotional activities connected with the handling and acquisition of credit cards and other financial services offered by Bank Handlowy.

8. The agency contract indicated how the agent was to be remunerated, stipulating that remuneration should be calculated in relation to the number of contracts concluded. In most cases, this was a specific amount paid per credit card issued or per loan application successfully processed. It did not stipulate any type of commission-based remuneration other than commission in respect of contracts concluded with the agent’s direct participation.

9. Bank Handlowy terminated the agency contract on 17 December 2014. As a result, Rigall Arteria Management requested Bank Handlowy to provide information on the commission due for the period from 1 June 1999 to 31 January 2015.

10. Bank Handlowy refused to do so, arguing, in particular, that the information hitherto provided to the agent had made it possible to calculate the total remuneration due under the agency contract and, consequently, there were no grounds to provide any further information. Rigall Arteria Management brought an action before the Sąd Okręgowy w Warszawie (Regional Court, Warsaw, Poland), by which it requested information on contracts concluded by Bank Handlowy with customers previously acquired as a result of the agent’s intermediation.

11. By judgment of 20 June 2016, the Sąd Okręgowy w Warszawie (Regional Court, Warsaw) dismissed the action. That court found, inter alia, that it did not follow from the wording of the contract between the parties that the agent was entitled to claim commission on repeat transactions.

12. By judgment of 28 February 2018, the Sąd Apelacyjny w Warszawie (Court of Appeal, Warsaw, Poland) dismissed Rigall Arteria Management’s appeal. In particular, that court considered that commission on repeat transactions, as referred to in Article 761(1) of the Civil Code implementing Article 7(1)(b) of Directive 86/653, is of a supplementary nature, which enables the parties to the agency contract to regulate the matter differently. In the view of that court, the circumstances of the case indicated that the parties tacitly excluded the agent’s right to the commission in question, which was apparent both from the fact that no reference was made to that type of commission in the wording of the contract and from the parties’ conduct during its performance.

13. Rigall Arteria Management brought an appeal in cassation against that judgment before the Sąd Najwyższy (Supreme Court), which is the referring court in the present case. In support of that appeal, Rigall Arteria Management alleges infringement of Article 761(1) of the Civil Code, interpreted in the light of Article 7(1)(b) of Directive 86/653, in that that provision is regarded as supplementary in nature.

14. The referring court explains that it has not yet been clarified whether it is possible under Polish law contractually to modify or exclude a commercial agent’s claim for commission on repeat transactions. Given that the relevant Polish law transposed Directive 86/653, the referring court is of the opinion that its interpretation depends on the interpretation as to whether Article 7(1)(b) of that directive is a mandatory or non-mandatory rule.

15. 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?’

16. Written observations were submitted to the Court by Rigall Arteria Management, Bank Handlowy, the German, Italian and Polish Governments and the European Commission. A hearing was held on 23 March 2022 at which Rigall Arteria Management, Bank Handlowy, the German and Polish Governments and the Commission presented oral argument.

IV. Analysis

17. Directive 86/653 is an exceptional piece of EU legislation in that it regulates business-to-business contracts. It applies to agency contracts (5) concluded between the commercial agent and the principal who are both acting as independent businesspersons. (6) Directive 86/653 applies exclusively to such contracts in which the agent’s activities are provided for remuneration. (7) It harmonises only certain aspects of the relationship between commercial agents and principals, and more specifically, basic mutual rights and obligations of the parties (Chapter II), the remuneration of commercial agents (Chapter III) and the conclusion and termination of agency contracts (Chapter IV). Article 7(1)(b) of Directive 86/653 is part of Chapter III (Articles 6 to 12) thereof.

18. It should be borne in mind that Directive 86/653 was adopted in the 1980s pursuant to internal market legal bases which required unanimity, (8) following lengthy and complex negotiations, with some Member States opposing the need for such a directive altogether. (9) Thus, in the end, it was the result of compromises among Member States with very different philosophies regarding the regulation of contracts generally, and agency contracts specifically.

19. It is, therefore, no surprise that the Court has already been invited on multiple occasions to interpret different provisions of Directive 86/653. (10) This is, however, the first time that the Court is invited to explain the nature of Article 7(1)(b) thereof.

20. By its question, the referring court essentially seeks to ascertain whether a commercial agent’s entitlement to commission on repeat transactions provided for in Article 7(1)(b) of Directive 86/653 can be modified or excluded by the parties to the agency contract.

21. With a view to answering that question, I will begin by addressing the Court’s jurisdiction to give a preliminary ruling in the circumstances of the present case (A). I will then proceed to my substantive assessment (B), by first providing some preliminary observations concerning the distinction between mandatory and non-mandatory rules governing contracts more generally (B.1), before turning to the interpretation of Article 7(1)(b) of Directive 86/653 (B.2).

22. On the basis of that analysis, I have reached the conclusion that the Court has jurisdiction to give a preliminary ruling in the present case and that Article 7(1)(b) of Directive 86/653 should be interpreted as a non-mandatory rule, thereby permitting the parties to the agency contract to...