Case C‑507/15

Agro Foreign Trade & Agency Ltd

v

Petersime NV

(Request for a preliminary rulingfrom the rechtbank van Koophandel te Gent)

(Reference for a preliminary ruling — Self-employed commercial agents — Directive 86/653/EEC — Coordination of the laws of the Member States — Belgian transposition measure — Commercial agency contract — Principal established in Belgium and agent established in Turkey — Choice of Belgian law clause — Applicable law — EEC-Turkey Association Agreement — Compatibility)

Summary — Judgment of the Court (First Chamber), 16 February 2017

1.        Freedom of movement for persons — Freedom of establishment — Self-employed commercial agents — Directive 86/653 — Aim

(Council Directive 86/653, Recitals 2 and 3 and Arts 17 and 18)

2.        Freedom of movement for persons — Freedom of establishment — Self-employed commercial agents — Directive 86/653 — National legislation excluding from the scope of that directive a commercial agency contract concluded between a commercial agent established in Turkey and exercising his activities in that State, and a principal established in the Member State concerned — Lawfulness — EEC-Turkey Association Agreement which does not extend the system of protection provided for by that directive to commercial agents established in Turkey

(Art. 21 TFEU; EEC-Turkey Association Agreement; Council Directive 86/653)

3.        International agreements — EEC-Turkey Association Agreement — Freedom of movement for persons — Freedom of establishment — Freedom to provide services — Standstill clause of Article 41(1) of the Additional Protocol — Scope — Commercial agent established in Turkey who does not provide services in a Member State — Exclusion

(EEC-Turkey Association Agreement; Additional Protocol to the EEC-Turkey Association Agreement, Art. 41(1))

1.      See the text of the decision.

(see paras 28-31)

2.      Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents and the Agreement establishing an Association between the European Economic Community and Turkey, signed in Ankara on 12 September 1963 by the Republic of Turkey, on the one hand, and by the Member States of the EEC and the Community, on the other, and concluded, approved and confirmed on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963 must be interpreted as not precluding national legislation transposing that directive into the law of the Member State concerned, which excludes from its scope of application a commercial agency contract in the context of which the commercial agent is established in Turkey, where it carries out activities under that contract, and the principal is established in that Member State, so that, in such circumstances, the commercial agent cannot rely on rights which that directive guarantees to commercial agents after the termination of such a commercial agency contract.

It is not necessary, for the purposes of making the conditions of competition between commercial agents within the European Union uniform, to provide commercial agents who are established and carry out their activities outside the European Union with protection comparable to that of agents who are established and/or carry out their activities within the European Union.

In those circumstances, a commercial agent carrying out activities under a commercial agency contract in Turkey, such as the applicant in the main proceedings, does come within the scope of application of Directive 86/653, regardless of the fact that the principal is established in a Member State, and therefore should not necessarily benefit from the protection provided by that directive to commercial agents.

Moreover, with regard, in particular to the association between the European Union and the Republic of Turkey, the Court has already held that, in deciding whether a provision of EU law lends itself to application by analogy under that association, a comparison must be made between the objective pursued by the Association Agreement and the context of which it forms a part, on the one hand, and those of the EU law instrument in question, on the other (judgment of 24 September 2013, Demirkan, C‑221/11, EU:C:2013:583, paragraph 48). It should be noted that the Association Agreement and the Additional Protocol are intended essentially to promote the economic development of Turkey and pursue, therefore, a solely economic purpose (see, to that effect, judgment of 24 September 2013, Demirkan, C‑221/11, EU:C:2013:583, paragraph 50).

By contrast, in the context of EU law, the protection of the freedom of establishment and the freedom to provide services, by means of the regime provided for by Directive 86/653 with respect to commercial agents, is based on the objective of establishing an internal market, conceived as an area without internal borders, by removing all obstacles to the establishment of such a market.

Therefore, the differences between the Treaties and the Association Agreement concerning the objective pursued by them preclude the system of protection laid down by Directive 86/653 with respect to commercial agents from being held to extend to commercial agents established in Turkey, in the context of that agreement.

(see paras 34-35, 41, 42, 44, 45, 52, operative part)

3.      As regards Article 41(1) of the Additional Protocol, it is settled case-law that the standstill clauses set out in Article 13 of Decision No 1/80 of the Association Council of 19 September 1980 on the development of the Association, and annexed to the Association Agreement, and in Article 41(1) of the Additional Protocol prohibit generally the introduction of new internal measures which are intended to or have the effect of making the exercise by a Turkish citizen of an economic freedom subject, on the territory of the Member State concerned, to conditions more stringent than those which were applicable at the date of entry into force of that decision or that protocol as regards that Member State (judgment of 12 April 2016, Genc, C‑561/14, EU:C:2016:247, paragraph 33).

It follows therefrom that Article 41(1) of the Additional Protocol concerns only Turkish nationals who exercise their freedom of establishment or to supply services in a Member State.

Consequently, a commercial agent established in Turkey, who does not supply services in the Member State concerned, such as the applicant in the main proceedings, does not fall within the personal scope of application of that provision.

(see paras 47-49)