Subagent’s claim for goodwill indemnity – commentary on the judgment of the Court of Justice of the European Union of 13 October 2022, C-593/21, NY v Herios SARL

Abstract

The commented judgment concerns a claim for goodwill indemnity (Article 17 (2) of Directive 86/653) by a subagent against a main agent. The Court of Justice of the European Union correctly, albeit tacitly, held that a subagency agreement is subject to Directive 86/653. Nor is there any doubt that the goodwill indemnity received by the main agent may constitute a benefit for him (as the subagent’s principal), justifying the subagent’s claim for payment of his goodwill indemnity. However, the Court’s interpretation is flawed, according to which the fact that the subagent after the termination of the subagency agreement continues to serve the clientele it has built up – but now as a main agent – means that the payment of goodwill indemnity by the main agent may be regarded as not being equitable in the meaning of Article 17 (2) (a) second indent of Directive 86/653. This interpretation leads to the subagent being disadvantaged by depriving him of remuneration, in the form of goodwill indemnity, for the effort he has put into building up a clientele for the principal.