1.

The etymology of the concept of ‘commercial traveller’ sheds light on the distinctive characteristic of that profession, namely that, traditionally, those carrying out that profession travelled in order to seek new customers and present in person the benefits of the products in order to sell them. Nowadays, it is rather the concept of ‘commercial agent’ that is used to describe persons involved in the sale of products on behalf of and in the name of another person. To what extent is the traditional sense of the concept of ‘commercial traveller’ still relevant today to the concept of ‘commercial agent’?

2.

That is the context of the first question for a preliminary ruling referred by the tribunal de commerce de Liège (Commercial Court, Liège, Belgium), which will give the Court the opportunity to develop its case-law on Article 1(2) of Directive 86/653/EEC. ( 2 )

3.

In the same vein, the referring court’s second and third questions concern the situation where a commercial agent carries out tasks unrelated to those referred to in Article 1(2) of Directive 86/653.

4.

Chapter I of Directive 86/653, entitled ‘Scope’, comprises Articles 1 and 2. According to Article 1 of the directive:

‘1.   The harmonisation measures prescribed by this directive shall apply to the laws, regulations and administrative provisions of the Member States governing the relations between commercial agents and their principals.

2.   For the purposes of this directive, “commercial agent” shall mean a self-employed intermediary who has continuing authority to negotiate the sale or the purchase of goods on behalf of another person, hereinafter called the “principal”, or to negotiate and conclude such transactions on behalf of and in the name of that principal.

3.   A commercial agent shall be understood within the meaning of this Directive as not including in particular:

5.

In addition, Article 2 of Directive 86/653 provides:

‘1.   This directive shall not apply to:

2.   Each of the Member States shall have the right to provide that the Directive shall not apply to those persons whose activities as commercial agents are considered secondary by the law of that Member State.’

6.

Directive 86/653 was transposed into Belgian law by the loi relative aux contrats d’agence commerciale du 13 avril 1995 (Law of 13 April 1995 on commercial agency contracts) (Moniteur belge of 2 June 1995, p. 15621). Article 1 of that law, codified in Article I.11.1 of the Code de droit économique (Economic Law Code), defines a commercial agency contract as follows:

‘A contract by which one of the parties, the commercial agent, is granted continuing authority, in return for remuneration, by the other party, the principal, without being subject to the control of the latter, to negotiate and possibly conclude transactions on behalf of and in the name of the principal. The commercial agent organises his business as he sees fit and is free to manage his own time.’

7.

Sanidel SA, a company incorporated under Belgian law, entrusted the promotion and sale of fitted kitchens in its Belgian premises to Zako SPRL, a company incorporated under Belgian law, set up by Mr André Ghaye among others.

8.

Mr Ghaye worked as the supervisor of Sanidel’s fitted kitchen department from the end of 2007 without any written agreement between the two parties having been drawn up. As the referring court explains, Mr Ghaye carried out his activities at Sanidel’s premises as a desk job.

9.

Mr Ghaye’s tasks included selecting products and suppliers and determining commercial strategy, including meeting customers, drafting kitchen plans, calculating quotes, negotiating prices, signing for orders, taking measurements off-site, settling disputes, managing staff in the fitted-kitchens department, creating and managing the website for online sales, developing sales, and negotiating and finalising subcontracts on behalf of Sanidel.

10.

In October 2012, Sanidel informed Zako that it was terminating their contractual relationship without compensation or notice.

11.

The action brought by Mr Ghaye against Sanidel before the tribunal du travail de Marche-en-Famenne (Labour Court, Marche-en-Famenne, Belgium), by which he sought payment for several services rendered, was declared unfounded. That court considered that Mr Ghaye had not shown that he had carried out his functions under a contract of employment. The decision of that court was upheld on appeal by the cour du travail de Liège (Higher Labour Court, Liège, Belgium). Neither the tribunal du travail (Labour Court) nor the cour du travail (Higher Labour Court) was required to rule on the question whether the agreement at issue was a contract for work or a commercial agency contract.

12.

On 6 June 2016, Zako brought an action before the referring court relying on the existence of a contract for work.

13.

However, Sanidel contends that the agreement at issue must be classified as a commercial agency contract and that, in consequence, the present action is inadmissible since it was brought after the time limit of one year laid down in the relevant Belgian legislation.

14.

The referring court states that it is not bound by the classification the parties ascribe to their contract. However, it harbours doubts regarding the classification of the agreement between the parties to the main proceedings, that classification being decisive for the application of the provisions governing the time limits within which creditors must bring their claims before the courts.

15.

In those circumstances, le tribunal de commerce de Liège (Commercial Court, Liège) decided to stay the proceedings and referred the following questions to the Court for a preliminary ruling:

16.

The request for a preliminary ruling was lodged at the Court Registry on 27 July 2017.

17.

Written observations were submitted by Sanidel, the German and Italian Governments, and the European Commission. Those interested parties, with the exception of the Italian Government, attended the hearing held on 17 May 2018.

18.

By its first question, the referring court asks whether Article 1(2) of Directive 86/653 is to be interpreted as requiring that a commercial agent carries out his activities on an itinerant basis, outside of the principal’s premises.

19.

All the interested parties who submitted observations are unanimous that that question should be answered in the negative. In general, they submit that Directive 86/653 does not provide that the commercial agent must carry out his activities on an itinerant basis.

20.

As I mentioned in the introduction to this Opinion, persons whose business was selling goods to customers were traditionally called ‘commercial travellers’. That concept suggests that the activity carried out by those persons had an itinerant character.

21.

Furthermore, whereas the referring court indicates in its order for reference that the legal literature cited by Sanidel takes the view that travelling to seek new customers is not an essential element of a commercial agency contract, I note that, according to other authors, travelling to seek new customers is inherent in the role of the agent, so that a person whose business is to meet customers without door-to-door canvassing cannot be classified as a commercial agent. ( 3 )

22.

However, first, the EU legislature has not used the concept of ‘commercial traveller’ in Directive 86/653. Use of the concept of ‘commercial agent’ in that directive may thus be an indication that the EU legislature intended, when defining the scope of that directive, to move away from the traditional sense of an activity involving the sale of goods to customers.

23.

Second, it is settled case-law that the protection of Directive 86/653 is granted to persons who satisfy the conditions set out, in particular, in Article 1(2) thereof. ( 4 ) The introduction of additional conditions would therefore limit the scope of protection as understood by the EU legislature, which is why the Court has ruled that the protection of Directive 86/653 may not be subjected to conditions not appearing in that directive, to the detriment of persons carrying out the tasks referred to in Article 1(2) thereof. ( 5 )

24.

As regards the problem raised by the first question, I find nothing in either Article 1(2) of Directive 86/653 or other provisions of that directive to support the interpretation that persons who carry out the activities referred to in that first provision as a desk job are excluded from the scope of the directive. ( 6 )

25.

Third, like the German Government I consider that an interpretation of Article 1(2) of Directive 86/653 to the contrary would exclude from the benefit of the directive’s protection persons carrying out, with the assistance of modern technological means, tasks similar to those carried out, on an itinerant basis, by commercial agents who travel. It is important to emphasise that such modern technological means make it possible, in particular, to further the employment of persons with motor difficulties.

26.

By way of intermediate conclusion, I note, first, that the itinerant character of the activity carried out is in no way inherent in the concept of ‘commercial agent’. Second, nothing in Directive 86/653 indicates that the EU legislature intended to introduce a condition concerning itinerancy in the definition of ‘commercial agent’ laid down in Article 1(2) of that directive. Finally, third, the absence of substantial differences between persons carrying out the tasks referred to in Article 1(2) of the directive on an itinerant basis and those carrying out those tasks as a desk job does not make it possible to justify introducing such a condition.

27.

I share the Commission’s position that a commercial agent may carry out his activity as a desk job provided that such sedentary basis does not call into question his independence vis-à-vis the principal.

28.

It is clear from Article 1(2) of Directive 86/653 that the activity of a commercial agent must have an independent character. Consequently, where an intermediary carries out his tasks in ways that may entail the loss of his independence, he is precluded from being classified as a commercial agent within the meaning of that provision.

29.

I consider that that interpretation is corroborated by an analysis of the travaux préparatoires that led to the adoption of Directive 86/653.

30.

As is clear from Article 5(2)(e) of the proposal for Directive 86/653, ( 7 ) the Commission had initially proposed making clear the scope of the obligation to comply with the principal’s instructions, such that a commercial agent would have been subject to that obligation ‘provided [those instructions] d[id] not basically affect the agent[’s] independence’.

31.

It seems to me that such clarification shows that the Commission had taken into account the fact that, in certain cases, the way in which the activities relating to the negotiation or conclusion of purchase or sale transactions are carried out could create a relationship of subordination which, as follows from Article 2 of the initial proposal for Directive 86/653, would not have permitted classification as a commercial agent.

32.

Admittedly, Article 3(2)(c) of Directive 86/653 does not provide similar detail as to the scope of the obligation to comply with the principal’s instructions. According to that provision, in particular, the commercial agent must comply with reasonable instructions given by his principal.

33.

However, in my view, the absence in Article 3(2)(c) of Directive 86/653 of such clarification concerning the link between subordination to a principal’s instructions and the independence of a commercial agent cannot be considered to be a departure from the spirit of the Commission’s initial proposal. In fact, I am of the opinion that such clarification was not necessary inasmuch as independence is the fundamental element of the definition of commercial agent set out in Article 1(2) of the directive.

34.

Furthermore, I take the view that the conclusion to be drawn from the absence of such clarification is that the EU legislature considered that the commercial agent’s independence could be put in question not only by subordination to a principal’s instructions, but also by other ways in which an agent carries out his tasks.

35.

From that perspective, I consider that a continuous presence in person in the premises of a principal, leading to total dependence on his facilities and on the staff, may, in certain cases, entail a consequential loss of independence for the commercial agent. However, it is apparent from the request for a preliminary ruling that, in the present case, Mr Ghaye enjoyed total independence and operated in full autonomy with the customers, suppliers and contractors.

36.

In the light of the above considerations, I propose that the Court’s answer to the first question referred should be that Article 1(2) of Directive 86/653 does not require that a commercial agent carries out his activities on an itinerant basis, outside of the principal’s premises.

37.

By its second question, the referring court essentially asks whether the concept of ‘commercial agent’ within the meaning of Directive 86/653 precludes such an agent from carrying out tasks other than those relating to the negotiation of the sale or purchase of goods on behalf of the principal or to the negotiation and conclusion of such transactions on behalf of and in the name of the principal. By its third question, the referring court asks whether such tasks may be carried out by a commercial agent where their importance means that they cannot be described as secondary to the main duties of a commercial agent, as laid down by that directive. The third question arises if the Court’s response to the second question is that those two categories of tasks may be combined.

38.

The Commission has doubts concerning the admissibility of the third question. In its view, since the order for reference states that the tasks carried out by Zako in its capacity as commercial agent and the other tasks with which Sanidel entrusted it were of equal importance, the third question is hypothetical.

39.

However, as the Commission observes, the referring court points out that, in the present case, those two categories of tasks are of equal importance. In order to give a useful answer to the referring court, therefore, it must also be examined whether the tasks unrelated to those referred to in Article 1(2) of Directive 86/653 may be carried out where their importance precludes their classification as secondary to the main duties of a commercial agent. For those reasons, I consider that the third question is admissible.

40.

Furthermore, the nature of the second question means that, in order to answer it, the legal problem raised by the third question must be examined. I consider therefore that, because of the connection between them, the second and third questions should be answered together.

41.

The German and Italian Governments propose that the second and third questions should be answered together, whereas Sanidel and the Commission propose that they should be answered separately. Nevertheless, all the interested parties take the unanimous view that a commercial agent may carry out tasks unrelated to those referred to in Article 1(2) of Directive 86/653.

42.

However, I note that two distinct positions are presented by the interested parties as regards the nature of such unrelated tasks which may be carried out by a commercial agent.

43.

On the one hand, according to the German Government, Article 1(2) of Directive 86/653 should be interpreted as meaning that a commercial agent may, in principle, carry out tasks other than those relating to the negotiation of the sale or purchase of goods on behalf of the principal or to the negotiation and conclusion of such transactions on behalf of and in the name of the principal.

44.

Consistent with that approach, as regards the second question referred, the Commission considers that Article 1(2) of Directive 86/653 should be interpreted as meaning that it does not preclude a commercial agent from carrying out tasks other than those relating to the negotiation of the sale or purchase of goods on behalf of the principal. As for the third question, the Commission submits that such tasks should not be carried out as secondary tasks. Moreover, to the extent that the activities of a commercial agent and those of an employee are carried out equally, it would be possible to consider that, in the present case, there are two types of contract which are juxtaposed, namely a commercial agency contract covering the activities relating to commercial agency and a contract for the activities relating to the business or employees. Each of those contracts should be governed by rules specific to it.

45.

On the other hand, the Italian Government proposes that the second and third questions should be answered together to the effect that the agency contract may comprise secondary obligations for the commercial agent, since those obligations do not fundamentally alter the nature of the contract in that their relevance is merely instrumental with regard to that agent’s principal obligation.

46.

Along similar lines, Sanidel considers, with regard to the second question, that it is not apparent from Directive 86/653 that a commercial agent must devote all his time, exclusively, to the tasks referred to in Article 1(2) of the directive. However, with regard to the third question, Sanidel states that it is important that other tasks relate to the activity of negotiation and sale, that is to say that they are necessary or indispensable to the performance of the commercial agency contract.

47.

In order to reply to the second and third questions referred for a preliminary ruling, it is necessary first to examine Directive 86/653 in order to determine whether, in principle, it precludes a commercial agent from carrying out tasks outside his main duties as laid down by that directive. Second, I consider it necessary to examine the referring court’s doubts concerning the classification of the agreement concluded between the parties to the main proceedings in the light of Directive 86/653.

48.

It must be observed at the outset that, under Article 2(2) of Directive 86/653, each of the Member States may provide that that directive is not to apply to those persons whose activities as commercial agents are considered secondary by the law of that Member State.

49.

Few Member States have exercised that right. ( 8 ) Regardless of the question concerning the actual use that has been made of the right referred to in Article 2(2) of Directive 86/653, the fact that that right has been provided by the EU legislature suggests to me that, in principle, other tasks may be added to those falling within Article 1(2) of the directive. ( 9 )

50.

Moreover, it is not apparent from either that provision or any other provision of the directive that, in order to be classified as a self-employed commercial agent, a person may carry out tasks that do not fall within that first provision only as secondary tasks. Conversely, nothing precludes that person from carrying out, as a secondary task, the tasks described in Article 1(2) of the directive.

51.

Admittedly, Article 1(2) of Directive 86/653 requires that a commercial agent has continuing authority to carry out the tasks referred to in that provision. Consequently, in principle, an agent must be invested by the principal with continuing authority. ( 10 ) However, the legal literature considers that activities carried out as secondary tasks may satisfy the requirement of continuing authority. ( 11 ) That requirement, as laid down by Article 1(2) of Directive 86/653, must not be confused with the requirement of preponderance which is not imposed by that directive. ( 12 )

52.

Finally, as is clear from my analysis of the first question referred, ( 13 ) the ways in which a commercial agent carries out his tasks may not entail the loss of his independence. In certain cases, the fact that a commercial agent also carries out tasks other than those referred to in Article 1(2) of Directive 86/653 might compromise his independence. However, with the exception of that restriction, the cumulation of tasks seems to me to be acceptable under the system laid down by Directive 86/653. In that context, it should be noted that the referring court indicates that in the present case Mr Ghaye enjoyed complete independence and autonomy.

53.

To sum up, the foregoing considerations may be an indication that Directive 86/653 does not preclude a commercial agent from carrying out tasks unrelated to those referred to in Article 1(2) of that directive. Moreover, it is immaterial whether or not such tasks are carried out as secondary tasks.

54.

The referring court indicates that classification of the agreement between the parties to the main proceedings is vital for the purposes of deciding whether the time limit for commercial agency contracts applies in the present case. It is in that context that, by its second and third questions referred, the referring court asks whether carrying out tasks other than those relating to the negotiation and conclusion of transactions for the principal can fundamentally alter the nature of the commercial agency agreement where those tasks are not secondary.

55.

Those questions are echoed in the written observations of the Commission since it considers that, in a situation such as that in the main proceedings where the activities of a commercial agent and those of an employee are carried out equally, there are two types of contract. In that regard, in response to a question from the Court at the hearing, the Commission stated that where, according to the applicable law, it is not possible to divide a contract, that contract must be classified according to its preponderant elements.

56.

The same is true of the written observations of Sanidel and the Italian Government inasmuch as they consider that a commercial agent may carry out tasks unrelated to those referred to in Article 1(2) of Directive 86/653 as long as those tasks do not fundamentally alter the nature of the commercial agency contract.

57.

It seems to me that all those considerations reflect the classic private law approach which consists in classifying the contract in order to apply the appropriate regime. Certain national legislatures define types of contract. ( 14 ) Such a definition determines the scope of the provisions relating to the rights and obligations that flow from the type of contract concerned.

58.

However, in certain cases, the agreement concluded between the parties comprises elements which are characteristic of several types of contract. The classification of such so-called mixed contracts is sometimes problematic.

59.

In order to resolve this, the national legislature has several options to choose from. One of those, proposed by the Commission, is to divide the agreement concluded between the parties into two contracts. Another option is to consider the agreement as one single mixed contract comprising two parts, where each of the parts should be governed by rules specific to it. Such a mixed contract could also be considered to be regulated solely by the general provisions of the law on contractual obligations. It is for the national legislature to decide which solution to adopt concerning the classification of mixed contracts.

60.

In order to give an answer to the legal problem raised in the context of the second and third questions referred, concerning the classification of the agreement at issue, it is appropriate to turn to the scope of Directive 86/653. In that regard, I note that the EU legislature has not defined commercial agency contracts in the context of that directive. Conversely, only the concept of ‘commercial agent’ is defined in Article 1(2) of the directive, read in conjunction with Article 1(3) and Article 2(1) thereof.

61.

It should be noted that it is by using the definition of the concept of ‘commercial agent’ that the EU legislature determined the scope of Directive 86/653. Moreover, Articles 1 and 2 of the directive appear in the chapter entitled ‘Scope’. That logic is even apparent from the title of Directive 86/653, which coordinates not the laws relating to commercial agency contracts but the laws of the Member States concerning self-employed commercial agents. That approach with regard to the delimitation of the scope of that directive is also reflected in the case-law according to which that directive is designed to protect commercial agents. ( 15 )

62.

It should be observed that that approach to the delimitation of the scope of Directive 86/653 differs from that followed in other directives harmonising selected aspects of private law. By way of illustration, Directive 2008/48/EC ( 16 ) applies, as is apparent from Article 1(1) thereof, to credit agreements. Outside the domain of the protection of consumers, who are considered to be the weaker parties in contractual relationships, mention could be made of Directive 2002/47/EC ( 17 ) which applies, according to Article 1(1) thereof, to financial collateral arrangements and introduces a specific regime for the financial collateral arrangement as a specific legal instrument. ( 18 )

63.

Whereas the EU legislature introduced the definition of commercial agent in Article 1(2) of Directive 86/653, it seems to me that certain national legislatures have preferred to define the commercial agency contract. ( 19 ) I assume that, for those legislatures, the regulation of agency contracts in national law was justified from a practical point of view. Moreover, Directive 86/653 contains the essential provisions of an agency contract ( 20 ) and it is settled case-law that that directive aims to coordinate the laws of the Member States as regards the legal relationship between the parties to a commercial agency contract. ( 21 )

64.

However, the fact that it determined the scope of Directive 86/653 not on the basis of the concept of ‘commercial agency contract’ but on that of ‘commercial agent’ suggests to me that the EU legislature intended to ensure that the provisions of that directive were applicable irrespective of the mixed classification of the agreement binding a person carrying out the tasks referred to in Article 1(2) of that directive and his contractual partner. Moreover, so determining the scope is in line with the logic of the directive inasmuch as the regime introduced by that directive, at least with regard to certain aspects, is mandatory in nature. ( 22 )

65.

Therefore, first, where it has been established that a person carries out the tasks referred to in Article 1(2) of Directive 86/653 under the conditions set out therein, in particular as regards his independence and the requirement of continuing authority, without falling within the exceptions laid down in Article 1(3) and Article 2(1) of that directive, Directive 86/653 applies in so far as that person carries out the tasks of a commercial agent. Consequently, the fact that a person also carries out tasks unrelated to those referred to in Article 1(2) of that same directive is not, in itself, capable of depriving that person of the status of commercial agent within the meaning of that directive.

66.

Second, with regard to the legal problem concerning classification of the agreement between the parties to the main proceedings, which led the referring court to refer the second and third questions, I observe that Directive 86/653 does not harmonise the time limits within which commercial agents must bring their claim concerning the carrying out of the tasks referred to in Article 1(2) of that directive. The same is true of the time limits concerning the carrying out of tasks unrelated to those referred to in that provision. Furthermore, Directive 86/653 does not require that the provisions of national law governing the carrying out of a commercial agent’s tasks apply to tasks unrelated to the main duties of such an agent, as provided by that directive.

67.

However, as is apparent from points 64 and 65 of this Opinion, a self-employed intermediary does not lose his status of commercial agent because he carries out tasks unrelated to those referred to in Article 1(2) of Directive 86/653.

68.

I therefore consider that, regardless of the solution adopted in national law concerning the classification of mixed contracts, ( 23 ) the carrying out of tasks other than those relating to the negotiation and conclusion of transactions for the principal cannot completely prevent classification of the agreement between the parties as commercial agency, even where such other tasks are not secondary to the main duties of a commercial agent laid down by Directive 86/653. Moreover, if national law did not provide for a clear solution regarding the division of those two categories of tasks, it would be necessary to retain the classification as commercial agency contract as far as possible by means of the applicable law, at least as regards the tasks falling within Article 1(2) of Directive 86/653.

69.

In the light of those arguments, I propose that the Court should answer the second and third questions referred as follows: Article 1(2) of Directive 86/653 does not preclude a commercial agent from carrying out tasks other than those referred to in that provision. It is immaterial that such other tasks may be regarded as secondary to the main duties of a commercial agent. Furthermore, in so far as that commercial agent carries out the tasks falling within Article 1(2) of the directive, the national provisions transposing that directive are applicable regardless of the solution adopted in national law concerning the classification of mixed contracts.

70.

In the light of all the foregoing considerations, I propose that Court should answer the questions referred for a preliminary ruling by the tribunal de commerce de Liège (Commercial Court, Liège, Belgium) as follows: