{"id":13350,"date":"2023-03-20T15:56:28","date_gmt":"2023-03-20T15:56:28","guid":{"rendered":"https:\/\/www.alerionavocats.com\/?p=13350"},"modified":"2023-03-20T15:56:29","modified_gmt":"2023-03-20T15:56:29","slug":"commercial-agent-possibility-derogate-right-commission","status":"publish","type":"post","link":"https:\/\/www.alerionavocats.com\/en\/commercial-agent-possibility-derogate-right-commission\/","title":{"rendered":"The Alerion Distribution Series by Catherine Robin and Johanna Guerrero – Commercial agent (episode 2)"},"content":{"rendered":"\n

Alerion invites you to follow the news on distribution law.  To start this Serie, focus on the status of commercial agent. Inaugurated in 1958 in France, the status followed the European harmonization in 1986 and continues to evolve under the influence of the Court of Justice.<\/strong><\/p>\n\n\n\n

Episode 1 – Commercial agent status does not require the power to modify prices<\/p>\n\n\n\n

Episode 2 – The possibility to derogate from the right to commission<\/strong><\/p>\n\n\n\n

Episode 3 – Compensation and serious misconduct of the agent<\/p>\n\n\n\n

Episode 4 – Commercial agent operating outside the EU and French law<\/p>\n\n\n\n

<\/div>\n\n\n\n

Episode 2<\/strong><\/h3>\n\n\n\n

Commercial agent – The possibility to derogate from the right to commission<\/strong><\/h3>\n\n\n\n

Court of Justice of the European Union admits the possibility to contractually derogate from the right to commission of the commercial agent in respect of a transaction entered into with a third party that agent previously acquired as a customer for transactions of the same kind. The possibility to limit the right to commission of the agent subsequently restricts his right to compensation at the end of the agency contract.<\/strong><\/p>\n\n\n\n

The status of commercial agent is legal (C.com. Art. L. 134-1 et seq.) and has been harmonized in the European Union (Directive 86\/653\/EEC of 18 December 1986). A commercial agent is an independent intermediary who has continuing authority either to negotiate or to negotiate and conclude the sale or purchase of goods in the name and on behalf of a principal (producer, industrial, trader, or another commercial agent (C.com. Art. L. 134-1). In return, the agent is entitled to commission on commercial transactions (e.g. the sales) concluded as the result of his action or with a third party whom he has previously acquired as a customer for transactions of the same kind (C.com. Art. L. 134-6, Dir. Art. 7.1). Some of the provisions of the legal status are mandatory: it is not possible to derogate from them.<\/p>\n\n\n\n

According to the Court of Justice*, the agent’s right to receive a commission, as provided for in the Directive, may be adapted contractually when it applies to subsequent transactions concluded with a client who initially contracted through the agent. The Court of Justice has ruled that the commercial agency contract may stipulate that the agent shall not receive any commission on such subsequent transactions of the same kind.<\/p>\n\n\n\n

Thus, the parties are free to modulate and adapt the suppletive rules of the legal status, such as the right to commission for subsequent transactions. Such adjustment may give rise to strong reluctance on the part of agents. However, the Court has pointed out that, making the right to commission on transactions of the same kind mandatory would not necessarily lead to increase protection for commercial agents because “it cannot be ruled out that, in such circumstances, some principals would offset the cost of the commission which would necessarily be payable […] by reducing the basic commission rate, by limiting or excluding the costs previously reimbursed or other elements of the remuneration, or even forgo entering into a contractual relationship with a commercial agent<\/em>\u201d (\u00a735).<\/p>\n\n\n\n

As a result, we consider that the protection organized by the European status of the commercial agent, is seriously altered by such a possibility given to the principal.<\/p>\n\n\n\n

Indeed, under French law, as the compensation owed to the commercial agent at the end of the contract is calculated on the commissions paid during the last years, depriving the agent of commission on subsequent sales has the mechanical effect of reducing the amount of the said compensation.<\/p>\n\n\n\n