Commercial Agent. Partial Loss of Commission
The judgment of the Court of the European Union of 17 May 2017 (Case C-48/16) clarified that the loss of commission due to non-performance of the contract applies not only in cases of total non-performance of the contract between the principal and the third party, but also in cases of partial non-performance of that contract, such as failure to meet the agreed turnover or duration.
A contractual clause to this effect does not constitute a derogation “to the detriment of the commercial agent.”
This reasoning is valid provided that such non-performance is not due to circumstances attributable to the principal.
Jurisdiction for contracts with Spanish agents
The issue remains unresolved to this day, and the judgment of the Court of Justice of the European Union in the case United Antwerp Maritime Agencies (Unamar) NV v Navigation Maritime Bulgare, of 17 October 2013 (CGCE 2013\359), has not significantly clarified the matter.
The Second Additional Provision of the Spanish Agency Contract Law establishes the following:
Jurisdiction over actions arising from the agency contract lies with the court of the agent’s domicile, and any agreement to the contrary shall be null and void.
Can a Spanish court therefore refuse to apply a foreign law, including that of another EU Member State, if jurisdiction is established in a place other than the agent’s domicile?
Spanish courts have made it clear that the protection of the agent with regard to jurisdiction at their domicile applies only to contracts between Spanish economic operators.
In our opinion, the limitation of jurisdiction to the agent’s domicile does not apply in international agency relationships, since this matter is not even mentioned in the Explanatory Memorandum of Spanish Law 12/1992 on Agency.