Court of Justice 18-03-1981 ECLI:EU:C:1981:70

First question

According to the plaintiff in the main action both Bey and herself operated as commercial agents (Handelsvertreter), and more specifically as business negotiators (Vermittlungsvertreter), on behalf of Blanckaert and should therefore be considered as independent businessmen (selbständige Gewerbetreibende) within the meaning of Article 84 (1) of the German Commercial Code. She does not accept the defendant's view that a commercial agent is an independent entrepreneur (selbständiger Unternehmer) in the same way as the holder of an exclusive sales concession, and that he cannot therefore be considered as an “agency or other establishment” within the meaning of Article 5 (5) of the Convention.

In support of her argument that Bey is an agency within the meaning of Article 5 (5) the plaintiff in the main action puts forward a number of factors said to be evidence of the supervision and control exercised by Blanckaert over Bey:

• Bey depends on instructions from Blanckaert not only as regards the selection and the identity of contracting parties, the conditions of sale and the completion of transactions, but also as regards the extent of the interests of the principal undertaking for which it is responsible and the duty of the commercial agent to give an account of his actions.

• In a letter of 14 October 1975 sent to the plaintiff's son Bey stated that it was to be considered as a sales manager (Verkaufsleiter) for Blanckaert.

• The letter of 30 November 1975 sent by Bey to Trost shows that Bey entered into the commercial agency contract with Trost at the request and in the name of Blanckaert.

The plaintiff in the main action (Trost) rejects Blanckaert's argument that there can be no question of a relationship of dependency between Blanckaert and Bey because Bey has been an independent commercial agent for approximately 20 years. It is quite possible for an independent commercial agent to be in a true relationship of dependency with respect to his principal undertaking, to be integrated into the distribution network and to be subject by reason of that to instructions from that principal undertaking. The only condition is tnat those instructions should not affect the substance of the legal autonomy of the commercial agent. Applying that principle to the present case the plaintiff in the main action (Trost) finds that Bey's activities on behalf of Blanckaert must be considered as nothing other than an external service of Blanckaert.

Second question

The plaintiff in the main action is of the opinion that in the present case the issue turns on Bey's activities, because that undertaking entered into a contract on behalf of Blanckaert which is binding on the Belgian undertaking. Anything done by Trost to market Blanckaert's products thus has considerable influence on Bey's business. The plaintiff is of the opinion that the words “disputes arising out of the operations” should be understood as covering not only those arising out of selling operations but also those resulting from Bey's other operations and activities carried out by that undertaking for Blanckaert in return for payment of a special commission.

Third question

The jurisdiction of the Landgericht Aachen also derives from the fact that the concept of “a dispute arising out of the operations of [an] ... agency or other establishment” referred to in Article 5 (5) of the Convention likewise covers disputes between the entrepreneur and the agency itself, that is to say, in this case, the disputes concerning Trost's claims for compensation and commission and not only the disputes between Blanckaert and clients of the latter with whom the agency was in contact as an intermediary.

On the basis of the foregoing considerations the plaintiff in the main action believes that the questions which have been raised should be answered in the affirmative.

First question

The Commission observes, first, that according to the judgment of the Court of 22 November 1978 (Case 33/78 Somafer [1978] ECR 2183), the concepts referred to in Article 5 (5) of the Convention require independent interpretation. According to that judgment, the concept of “branch, agency or other establishment” implies “a place of business which has the appearance of permanency, such as the extension of a parent body, has a management and is materially equipped to negotiate business with third parties so that the latter, although knowing that there will if necessary be a legal link with the parent body, the head office of which is abroad, do not have to deal directly with such parent body but may transact business at the place of business constituting the extension”.

Those conditions are not met in the case of a commercial agent within the meaning of Article 84 et seq. of the German Commercial Code. Giving its interpretation of Article 84 of the Code, the Commission takes the view that the commercial agent merely intervenes in transactions as an intermediary, or even concludes them as an intermediary, on behalf of the principal, whereas the performance of and the conditions relating to the transactions which have been negotiated or concluded are a matter for the principal on whose behalf the commercial agent is acting. Operating as an independent businessman, the commercial agent cannot, as a matter of principle, constitute a “place of business” of the principal. That is particularly true when a commercial agent does not act exclusively on behalf of one principal alone but, as in the case of Bey, represents several.

The Commission's view is that this case does present, however, a number of features foreign to the normal sphere of activities of a commercial agent. Thus Bey did not merely conclude a commercial agency contract with Trost in Blanckaert's name, but it also had the orders collected by Trost sent to it for transmission to Blanckaert. A certain amount of supervision was thereby clearly being exercised by Bey over Trosťs activities, in Blanckaert's name, and that supervision was recompensed by Blanckaert's payment of a special commission. Those facts do not, however, make it apparent that Bey was also responsible for stipulating the conditions governing the transactions which were negotiated by Trost and the performance of a supervisory role does not suffice to make of Bey, within the meaning of the definition given by the Court in the Soma/er judgment, a “place of business” of Blanckaert “which has the appearance of permanency”.

The Commission goes on to criticize the view that the concept of “agency” used in Article 5 (5) of the Convention extends to cover specifically the activities of a commercial agent (Handelsvertreter) who is also sometimes called “Handelsagent”. The Court of Justice has already stated in its judgment of 6 October 1976 (Case 14/76 De Bloos v Bouyer [1976] ECR 1497) that the three concepts employed in Article 5 (5) of the Convention comprise the same essential characteristics, so that the concept of an agency covers, in the same way as a branch, a component which is not legally independent of the parent body. In consequence the concept of an “agency” does not extend to intermediary agencies which are legally independent in so far as those agencies manifestly appear as such in the course of business. That interpretation is consistent with the sense and purpose of the special jurisdiction envisaged by Article 5 of the Convention. The conferment of jurisdiction on the basis of the geographical location of the establishment or agency is marked by the presence of a special and objective relationship with the legal circumstances giving rise to the litigation in every case where the legal relationships at issue in the dispute are constituted essentially by an establishment or an agency acting on its own responsibility, something which cannot be said of transactions concluded through the intermediary of a commercial agent because in that case the business is actually transacted by the principal himself.

In the present instance the reply to the question to what extent Trost is entitled to payment of commission by Blanckaert depends on whether or not the latter went on to carry through the transactions in which Trost served as intermediary, as provided for by Article 87 (a) of the German Commercial Code, with purchasers of Blanckaerťs furniture. As regards entitlement to payment by way of adjustment under the terms of Article 89 (b) of the German Commercial Code it is necessary to determine to what extent Blanckaert continues to benefit, even after the commercial agency contract was rescinded, from the clients won by Trost.

Second question

In view of the reply which it proposes for the first question the Commission considers that its reply to the second one may be brief.

In its opinion the claims advanced by Trost do not relate to a dispute arising “out of the operations” of Bey, because the rights on which it relies depend on conditions which do not result from the commercial activities of that concern, but from the business operations of Blanckaert in Belgium. In that regard the Court of Justice has held, in the Somafer judgment, that the concept of “operations” concerns only actions relating to the contractual or non-contractual rights and obligations concerning the management properly so-called of the agency or the establishment itself, and actions relating to undertakings which have been entered into by the agency or establishment in its capacity as the place of business, in the name of the parent body, and which must be performed in the Contracting State where the place of business is established.

Question 2 (b) in the order making the reference proceeds on the assumption that the operations of Trost, as a commercial agent, amounted, on her part, to the creation of an agency or other establishment of Blanckaert, and with regard to that situation the Bundesgerichtshof asks whether the claims put forward by the commercial agent with regard to the principal establishment constitute a dispute as described by Article 5 (5) of the Convention.

The Commission's view is that the reply to that question should be in the negative. Jurisdiction may be conferred in the manner provided for in Article 5 (5) of the Convention only where there are undertakings which are largely fulfilled by an establishment or agency on its own responsibility on behalf of the parent body. That condition is not ulfilled in the case of the rights relied upon on its own account by the establishment or agency as against the parent body because those are claims which must be satisfied, not by the agency or the establishment, but by the parent body itself.

On the basis of the foregoing considerations the Commission suggests the following reply to the questions which have been referred to the Court for a preliminary ruling :

“A commercial agent, whose activities consist in serving as an intermediary in transactions which are subsequently completed and acted upon by its principal (Article 84 et seq. of the Handelsgesetzbuch), is not to be considered as an ‘agenc’ or ‘other establishment’ within the meaning of Article 5 (5) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters.”