The reference has been presented by the Rechtbank Utrecht in the course of the proceedings brought by Poseidon Chartering that sued Marianne Zeeschip Company claiming damages for unpaid commission and indemnity for the loss of customers after the termination of the contract.
Poseidon acted as intermediary in a chartering agreement of a ship concluded between Marianne Zeeschip and a third company and extended annually from 1994 to 2000, receiving a commission of 2.5% of the charter price.
The national Court stayed the proceedings and referred three questions for a preliminary ruling:
- whether a self-employed intermediary, with authority to conclude a single contract, subsequently renewed for the following six years, can be considered a commercial agent for the purposes of the Directive;
- whether the remuneration paid over many years, the reference to “transactions concluded” and the entitlement to the commission mentioned in the Directive may be relevant, once determined the existence of an agency contract;
- whether the reference to “customers” instead of “customer” in the Directive is relevant to the answer to the first question.
The Court stated that the definition of commercial agent, as regulated in Article 1(2) of the Directive, is applicable to self-employed intermedaries with authority to conclude a single contract, subsequently extended for several years, if the principal conferred continuing authority on that intermediary for successive extensions to the same contract.
This rather wide interpretation of the notion of agent is rather surprising and may conflict with the current opinion, shared by several national laws, that intermediaries who have not an obligation to continuously promote business are not real commercial agents.
The text of the decision of the European Court of Justice can be found in the database of the EC Judgements and Decisions (in the Eu Section of the IDI website).
