Stages of the procedure
HWW law firm successfully represented a client in a dispute over commission settlements in the energy industry. The courts of both instances fully shared our arguments, dismissing claims for the return of paid remuneration in excess of one hundred thousand zlotys.
The case was initiated by an action against our client, who, acting under an agency agreement, was responsible for acquiring customers on behalf of the plaintiff, an electricity seller. The essence of the dispute was the interpretation of the billing mechanism for acquiring business customers. The plaintiff demanded the return of part of the commission previously paid, basing the claim on the fact that the parameters of the contracts concluded with customers had already changed after they had been signed.
In support of its position, the Claimant indicated that some of the contracts were terminated, their effective date was postponed or billing periods were modified. The Plaintiff’s key argument was that the actual energy consumption of the acquired customers turned out to be lower than the original forecasts, which in its view provided a direct basis for a proportional reduction in the commission due to the agent.
The initial stage of the proceedings led to a payment order granting the Claimant’s claim in full. The Firm filed an objection, challenging the order in its entirety and leading to a full trial on the merits in the second instance court.
During the trial, we consistently demonstrated the groundlessness of the asserted claim, pointing to the lack of reliable calculations and the absence of legal and contractual grounds for charging the agent with the risk associated with the subsequent performance of contracts by clients. Ultimately, the courts of both instances recognized our client’s rationale, dismissing the claim and supporting the correctness of the arguments raised by the law firm.
Legal argumentation of the law firm
As part of our litigation strategy, the HWW law firm team conducted a detailed analysis of the content of the agency agreement between the parties and the way it was actually executed. Our argumentation focused on demonstrating that nothing in the contract stipulated the agent’s obligation to reimburse the commission in the event that the acquired customers did not realize the projected energy intake. First and foremost, we argued that the amount of the commission was precisely defined as the remuneration for the mere acquisition of a counterparty and bringing about the successful conclusion of an energy sales contract by the counterparty – and not for the subsequent actual performance of that contract by the end customer.
A key element of the dispute was the reference to the failure to provide in the contract for the del credere clause referred to in Article 761⁷ of the Civil Code. We have shown that the parties did not establish a separate remuneration for the agent’s assumption of responsibility for the client’s performance. The absence of such a clause in a business relationship means that the agent is not responsible for the client’s subsequent acts or omissions, and his role and right to remuneration ends with the proper performance of the agency activity.
Effects of actions and protection of customer interests
The decisions of the courts of both instances, which were favorable to the Firm’s client, have a significant impact on the practice of calculating remuneration for agents in the energy industry. In the reasons for the judgment of the court of first instance, it clearly indicated that the defendant agent performed all the actions required to acquire the right to a commission. Neither express contractual provisions nor per facta concludentia action can deprive the agent of the right to the already acquired remuneration under such circumstances.
The law firm stressed that in light of both the general law and the contractual provisions, there was no basis for imposing an obligation on the agent to return a portion of the commission in the event that customers failed to meet their projected energy intake. Such an obligation could arise only in exceptional cases – if the agent assumed additional responsibility for the customer’s performance, and for a separate fee (the so-called commission del credere). The reasoning presented was fully shared by the District Court, effectively protecting the interests of the Firm’s client and avoiding the unjustified return of a significant amount of commission.
The court of second instance, recognizing the appeal, upheld the decision of the court of first instance, favorable to our client, ultimately confirming the groundlessness of the claims for reimbursement of commissions and the accuracy of the interpretation of the provisions of the agreement adopted by the law firm.
The importance of the case and its implications
The case in question has significance beyond the individual dispute of the parties. It represents an important voice in the discussion of the foundations of agency cooperation, confirming that a commission is due to the agent for the mere solicitation of customers and bringing about the conclusion of a contract. Subsequent performance or non-performance of the contract by the customer is outside the scope of the agent’s responsibility, unless the parties have expressly agreed otherwise by establishing a separate remuneration.
The ruling sends a clear signal to the market – any attempt to charge an agent for reimbursement of remuneration due to the customer’s failure to achieve the expected volume of consumption must be clearly regulated in the contract and preceded by the agent’s explicit acceptance of additional responsibility.
Indeed, the Court of Appeals stressed that the principle is that an agent is not liable for the performance of an obligation by a customer whom he has procured for the principal by brokering a contract between the principal and the customer or by entering into such a contract in the name and on behalf of the principal.
The law firm’s team responsible for handling the case
The HWW law firm’s litigation team, under the supervision of attorney Damian Wojnowski, LL.M. – Partner, was responsible for handling the case.
Frequently asked questions
Must an energy agent return commission if the client consumes less energy than forecasted after signing the contract?
No, the agent does not have to return commission in such a situation, because their obligation is only to acquire the client and bring about the conclusion of the contract. Responsibility for the subsequent performance of the contract by the client, including the level of energy consumption, rests with the seller, not with the intermediary. The court confirmed that there are no grounds for reducing remuneration due to lower than expected energy consumption.
In what situations may an agent be obligated to return already paid commission?
An agent may be obligated to return commission only in exceptional cases when they have previously assumed additional responsibility for the performance of the obligation by the client. Such responsibility must be expressly provided for in the contract and compensated with separate remuneration, called del credere commission. Without such a special clause, the agent does not bear the risk associated with subsequent actions of the client.
Does a change in contract parameters by the client after signing affect the agent’s right to remuneration?
Changes to contract parameters, such as effective dates or settlement periods, do not affect the agent’s right to already acquired remuneration. Remuneration is due for the effective bringing about of the contract conclusion itself, not for its subsequent performance. These changes are a risk on the energy seller’s side and cannot be grounds for demanding return of commission.
What does a del credere clause mean in the context of commercial agent remuneration?
A del credere clause means that the agent assumes responsibility for the performance of the obligation by the client, for which they receive separate remuneration. Without this clause, the agent is only responsible for intermediation in concluding the contract, not for whether the client actually fulfills their obligations. The absence of this clause means that the agent does not bear responsibility for potential arrears or changes in the contract performance by the client.
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HWW Hewelt Wojnowski Lindner i Wspólnicy is a Warsaw law firm advising businesses and public entities. We combine experience in commercial law, energy, tax, data protection and litigation to deliver solutions tailored to our clients’ business realities.
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