SEMEN V DEUTSCHE TAMOIL GMBH

[2009] EUECJ C-348/07, European Court of Justice, 26 March 2009

Agency – Commercial agent – Termination of agency relationship – Calculation of compensation – Commercial Agents Directive, Council Directive 86/653/EC, article 17

From 1 November 2001 until 31 December 2005, Mr Semen leased a petrol station from Deutsche Tamoil in Berlin, which he ran under the HEM brand name. On fuel his commission was calculated on the basis of quantities sold and, for lubricants, commission was calculated on the basis of turnover. If holders of a loyalty card entitling them to a discount from Deutsche Tamoil purchased fuel, commission was reduced accordingly. Following the termination of the agency relationship by Deutsche Tamoil, an issue arose as to the amount of compensation payable to Mr Semen. Under article 17(2)(a) of the Commercial Agents Directive, an agent is 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”. The European Court of Justice ruled as follows. (1) Article 17(2)(a) of the Directive was to be interpreted to the effect that it was not possible automatically to limit the indemnity to which a commercial agent was entitled by the amount of commission lost as a result of the termination of the agency contract where the benefits which the principal continued to derive had a higher monetary value. (2) Where the principal belonged to a group of companies, benefits accruing to other companies of that group were not, in principle, deemed to be benefits accruing to the principal and, consequently, did not necessarily have to be taken into account for the purposes of calculating the amount of indemnity to which a commercial agent was entitled.