Article 17(2) of Council Directive 86/653/EEC relating to self-employed commercial agents did not preclude national legislation which provided that a commercial agent was entitled, on termination of the agency contract, both to an indemnity for customers limited to a maximum of one year’s remuneration and, if that indemnity did not cover all of the loss actually incurred, to the award of additional damages, provided that such legislation did not result in the agent being compensated twice for the loss of commission following termination of the contract. Article 17(2)(c) meant that it did not make the award of damages conditional on demonstration of the existence of a fault attributable to the principal which caused the alleged harm, but did require the alleged harm to be distinct from that compensated for by the indemnity for clients.

The Court of Justice of the European Union so held on a reference for a preliminary ruling from the Cour d’appel de Brussels (Court of Appeal, Brussels), Belgium, in proceedings between the commercial agent, Quenon K SPRL, and the defendants, Beobank SA (formerly Citibank Belgium SA) and Metlife Insurance SA (formerly Citilife SA) regarding payment of the indemnity and damages claimed by Quenon because of the termination of its agency contract by the defendants.

THE COURT (Fourth Chamber) said that it followed from the use of different words to designate the two aspects of the scheme of indemnity for customers laid down in article 17(2): “indemnity” and “damages”, additional and optional in nature, and the distinct degree of harmonisation envisaged by the Directive in relation to those two aspects, that the compensation of the commercial agent by damages cold relate only to a loss separate from that compensated for by the indemnity for customers. Otherwise, the upper amount of the indemnity laid down in article 17(2)(b) would be circumvented. Consequently, the claim for damages under article 17(2)(c) had to concern a loss which was distinct from that covered by the indemnity for customers.