Vodafone ordered to pay compensation for clientele

vodafone indemnizacion clientela 

Vodafone has been ordered to pay compensation for customers to his agent

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4G PHONES MALLORCA, S.L. He was forced to terminate the contract agency that linked with VODAFONE SPAIN S.A.U. by economic infeasibility and the Provincial Court of Palma de Mallorca, in Case 20 October 2019 (Res. No. 418/2019), He has confirmed the sentence VODAFONE SPAIN S.A.U. to pay the 4G PHONES MALLORCA, S.L., 248.552,51 Euros for the compensation for clientele provided for in Article 28 of la Law of Agency Agreement.

Fact background,,es,Juan Alberto and Paulina filed suit against FTA,,es,Asset Securitization Fund,,es,requesting the declaration of nullity for abusive of the floor and ceiling clauses contained in the novation contract of the mortgage loan of,,es,with the corresponding refund of amounts unduly collected,,es,The Securitization Fund Management Company,,es,Beech,,es,acting on behalf of FTA, he responded to said claim alleging that he lacked passive legitimacy since the entity had no legal personality and that it constituted only a private and open fund and that therefore the passive legitimization corresponded to BBVA as successor of Catalunya Banc that was the Company fund constituent,,es

Since July 2013, 4G PHONES MALLORCA, S.L., had exercised agent activity VODAFONE SPAIN, S.A.U., under successive fixed-term contracts, within the meaning provided in the Agency Agreement Act two years each and written by Vodafone.

Remuneration was established as the "amounts derived from the Annex 1 of the contract", which they were reviewed annually, depending not exceed the 6% rate low or off, also established, in other annexes, part of remuneration, specifically, in the aid program for business management and infrastructure agent, It is all contractual documentation which joined, regarding compensation, las denominadasacciones comerciales UNE”, It has been issuing, unilaterally, each quarter Vodafone, being mostly very complex and said dependent system will Vodafone, especially through the quarterly targeting.

Vodafone not only varied parameters, but it fixed the structure and commercial available, leaving for the agent narrowly decision, for, be linked to the aid program both as targets for the number of commercial, to the increased number of these, implied higher income aid, but also a greater emphasis on goals, Vodafone does not adapt to reality in terms of the number of commercial, as it requested. Also, assigned customer base regardless of their capture and difficult cases of renewal.

All this led to a situation of lack of profitability, incur losses, although it agreed to wait for the fourth quarter of 2017, to find out what conditions fixed Vodafone. However, such conditions, They were a worsening situation.

Finally, 4G PHONES MALLORCA, S.L., I had to terminate the contract 1 April 2017 in date 27 October 2017, communicating it to the VODAFONE SPAIN, S.A.U., and indicating that it was due to the continued reduction in compensation it were made under operating costs, making unfeasible the last modification of the fourth quarter continuity and business viability.

All explained, 4G PHONES MALLORCA, S.L., She filed a complaint, in exercise action claim amount derived from agency contract, interested compensation for customers based on Article 28 of the Law of Agency Agreement, requesting the sum of 502.847,88 euros (plus legal interest and the imposition of fees on the defendant), as average annual amount of remuneration received by the applicant, as agent, throughout the period of contractual relationship, therefore considered VODAFONE SPAIN, S.A.U., would still get benefits or advantage of the two clients provided by such corporation.

Primera Instancia

The Court of First Instance No. 24 Palm, in date 19 March 2019, gave judgment, and partially upheld the claim. He condemned VODAFONE SPAIN, S.A.U., to pay the plaintiff, 248.552,51 EUR compensation for customers resulting from the termination of the agency contract, statutory interest, no explicit mention of an order for costs.

Provincial Court

By VODAFONE SPAIN, S.A.U., was presented appeal, accounting for its decision to the Section 3 of the Audiencia Provincial de Baleares. He gave judgment on 29 October 2019, dismissing it, confirming the first instance judgment issued, and imposing costs against the appellant.

He alleged five reasons:

1. He questioned the judicial assessment of evidence. The expert opinion submitted by the applicant was not admitted, but the statement by its author as testifical, not as an expert. The court considered the declaration of the author as the ratification of the opinion.

2. He claimed an error assessment of evidence in relation to judicial conclusion, as the agency agreement linking the parties was not accession, but had been negotiated between the parties. Therefore, It considered that the unilateral termination was made without just cause by the applicant, there, therefore, inappropriateness in compensation for customers, relying on article 30 LCA.

3. He defended the absence of substantial changes in the agency agreement for the fourth quarter of 2017, so it could not justify the resolution of the same.

4. He alleged that the plaintiff had not shown at any stage of the procedure compliance Article requirements 28 LCA to merit compensation for clientele.

5. Last, He attacked the compensatory amount to which he had been convicted, so there was a error in their assessment, due to a error in the legal characterization of the different contracts and programs signed by the parties.

As to primer motivo alleged, Hall said that is not established by law that the court had to grant, so necessary, to the expert opinion superior value to testifical technical or scientific knowledge. Therefore, This reason has not been valid for the Chamber to rebut the validity of the testimony.

Por lo que respecta al segundo motivo, the room, in this case brought up Article 30.b) LCA (“the agent will not be entitled to compensation for customers or for damages: b) When the agent had denounced the contract, unless the complaint had as a cause attributable to the employer circumstances, or is founded on the age, la invalidez o la enfermedad del agente y no pudiera exigírsele razonablemente la continuidad de sus actividades).

For the Board, it was important to determine if economic conditions were imposed by VODAFONE and if they were varied unilaterally by it. Especially, If the extent of such variation could be a reproof to the susceptible businessman constitute grounds for the resolution of the contract by the plaintiff (Emphasizing the SAP Palma de Mallorca, Section 5th, nº 188/2016, of 30.06.2016). After analysis, the Chamber concluded that it was VODAFONE who drafted the comprehensive contract and bargaining power by the agent was very small, or rather almost nonexistent. Consistent with the conclusion of the judgment at first when he stated that “…the conditions were imposed and sent by the defendant to each of its agents by fax, accepted by the claimant every two years with no possibility of negotiation of regulatory clauses of the same, nor of the other programs and documents which would ultimately depend on the remuneration of the agent. "

Turning to the third reason given, He defended the absence of substantial changes in the agency agreement for the fourth quarter of 2017, that could justify the resolution of the same for 4G MOBILE MALLORCA, S.L.

This reason, It coincided with established by the judgment in the first instance, as the Board also considered that "We are not facing a unilateral termination of the contract and unjustified, finding ourselves before a contract with successive renewals, because the conditions were imposed and sent by the defendant to each of its agents by fax, accepted by the claimant every two years with no possibility of negotiation of regulatory clauses of the same, nor of the other programs and documents, which would ultimately depend on the remuneration of the Agent. "

Ultimately, for the Chamber could not qualify the contract termination as attributable to Agent, for, the employer is also obliged to act in accordance with the general duty of loyalty and good faith contractual, forcing to Article 1258 Civil Code.

In the case of fourth plea claimed by VODAFONE, the Chamber has appreciated that, If the plaintiff had not brought new customers and increased revenue with existing customers, the defendant had not been renewed the contractual relationship.

Specifically, He listed the Room requirements established by the article 28 LCA, of those who made dependent on the compensation for clientele: 1) "The contribution of new customers or increase in turnover among existing; 2) Continue to provide benefits to the employer; 3) Resulting equally from the circumstances. "

Regarding the first requirement, singular circumstances of the contract have failed to assert, as claimed by the appellant party, a failure by the plaintiff of the same. As to second, Hall stressed the jurisprudence he admitted that it was possible to make a pronóstico razonable in response to the immediate moment later the breakdown of the contractual relationship, about what would be the likely behavior of that customer. So it could not be imposed on the Agent full proof of the effectiveness of such benefits (SSTS 4 January 2010, 7 November 2013 inter). Finally, as regards the tercero, para la Sala no se podían obviar los derechos del Agente legalmente reconocidos e inherentes al propio régimen contractual. Is, el Agente resolvió el contrato porque tuvo lugar un concurso de acreedores, no para pasar a trabajar para la competencia.

Last, it was alleged one quinto motivo, relativo a la suma indemnizatoria que en primera instancia se concedió a la parte demandante. Se consideró por VODAFONE que había habido un error en el cálculo de la misma, debiéndose calcular “teniendo en cuenta única y exclusivamente las remuneraciones percibidas por 4G MALLORCA derivadas de la labor de agencia (Anexo I del Contrato de Agencia Exclusiva Empresas), durante el tiempo en que dicha relación contractual estuvo vigente, this is from the 1 April 2017 a 26 October 2017, de conformidad con lo establecido en el paragraph 3 Item 28 LCA.

In this case, la Sala hizo suyo el razonamiento expuesto en la sentencia en primera instancia:

“(…) Sí considero apropiado reducir, en virtud de principios de equidad, dicha suma en un 50%, presumiendo con ello que un 50% de la nueva clientela seguiría atendiendo a los móviles que representa la marca.”

For the Board, the juicio de equidad indicado era procedente, tal y como se ha venido estableciendo en la jurisprudencia, habiéndose fijado la indemnización siendo “equitativamente procedentetanto para determinar la procedencia de la indemnización por clientela, como para la fijación de su importe, dentro del límite máximo establecido por la norma (STS 341/2012 of 31 May, RJ 2012, 6549)el juicio de equidad en la determinación de la procedencia de la indemnización por clientela previsto en el apartado 1 del artículo 28 LCA debe alcanzar también a la fijación de su importe, sin perjuicio de que en todo caso deba respetar del límite legal contenido en el apartado 3).


In this case, traemos un supuesto en el que VODAFONE ESPAÑA, S.A.U. resultó condenada a pagar la indemnización por clientela a uno de sus agentes que se vió obligado a resolver el contrato de agencia por inviabilidad del mismo. So good, dicha indemnización quedó limitada al tope máximo recogido en el article 28.3 LCA, which states that “la indemnización no podrá exceder, in no case, the annual average amount of remuneration received by the agent during the last five years or, throughout the duration of the contract, si este fuese inferior”. In any case, será el juez quien tendrá que determinar la cuantía de la indemnización en cada supuesto concreto atendiendo al principio de equidad.

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