In its decision of October 13, 2022 (C-64/21), the CJEU ruled that a contractual provision providing for the exclusion of a commercial agent’s entitlement to commission for a transaction concluded during the contractual relationship with a customer whom the commercial agent had already previously acquired as a customer for transactions of the same type does not violate the Commercial Agents Directive 86/653/EEC and is therefore allowed. The contractual exclusion of subsequent commissions can thus be effectively agreed upon, whereby the exclusion can be not only explicit but also implicit.

Following the decision of the CJEU, it is now clear that the commission rule for subsequent contracts is not mandatory (in Italy under art. 1748 para. 2 Civil Code, in Germany under § 87 para. 1 HGB - German Commercial Code) and can be waived by the parties. The parties are dependent on a fair contractual arrangement in order to ensure a lasting and successful contractual relationship. Motivated commercial agents are usually the most successful intermediaries.

The exclusion of subsequent commissions should also have an effect on a possible compensation claim of the commercial agent with regard to the equity consideration, since the commercial agent does not incur any commission losses from the subsequent transactions. However, the accrual of the compensation claim should not already be excluded because the commission loss of the commercial agent no longer represents an independent claim prerequisite, but is only evaluated within the scope of the equity consideration.