POLAND: new decision of the Supreme Court on goodwill indemnity.



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The claim was based on Article 764.3 of the Polish civil code, which implemented Article 17.2 of the 86/653 Directive (German System).

According to such Article:
“§ 1. After the termination of the contract of agency, the agent may demand from the principal a compensating performance, if the agent, within the duration of the contract of agency, obtained new clients or led to a significant increase in turnover with the existing clients and the principal is still deriving considerable benefit from the contracts with those clients. The agent shall have the right to that claim if, taking into consideration all the circumstances, and in particular the agent’s losing the commissions for the contracts concluded with those clients by the principal, the considerations of good reason shall support such claim.
§ 2. The compensating performance cannot exceed the amount of the agent’s remuneration for one year as calculated on the basis of an average annual remuneration obtained within the last five years. If the duration on the contract of agency is less than five years, the average amount for the whole duration of the contract shall be taken into consideration when calculating the remuneration. (…)”

The Supreme Court, in the present decision, gave its interpretation of the notion “considerable benefit”.
In addition the Court stated that the amount of the indemnity shall not simply be the average amount of remuneration gained by the agent within the last five years of duration of the contract (maximum amount) but should be determined by making reference to the method of calculation established by German Courts.


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