European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

The European authorities became aware of the need to approximate the laws of the Member States relating to the relations between self-employed commercial agents and their principals after having ascertained that differences in the systems were significantly affecting the conditions of competition and the exercise of the profession, while undermining the level of protection of commercial agents in  …

Context and scope of application

The European authorities became aware of the need to approximate the laws of the Member States relating to the relations between self-employed commercial agents and their principals after having ascertained that differences in the systems were significantly affecting the conditions of competition and the exercise of the profession, while undermining the level of protection of commercial agents in their relations with their principals and the security of commercial transactions. These divergences also constituted a significant brake on the conclusion and application of commercial representation agreements between a principal and a commercial agent established in different Member States . 

By fixing the scope of application of European rules, Article 1(2) of Directive No 86/653/EEC  defines the agent as “a self-employed intermediary who has continuing authority to negotiate the sale or the purchase of goods on behalf of another person, hereinafter called the “principal”, or to negotiate and conclude such transactions on behalf of and in the name of that principal”. The fact that the agent performs his activities from the principal's business premises does not prevent him from being classified as a commercial agent provided that he is able to pursue his activity independently . Similarly, the fact that he not only performs activities consisting in the negotiation of the sale or purchase of goods for another person, or the negotiation and conclusion of those transactions on behalf of and in the name of that other person, but also performs, for the same person, activities of another kind, without those other activities being subsidiary to the first kind of activities, does not preclude that person from being classified as a commercial agent, provided that that fact does not prevent the former activities from being performed in an independent manner .Commission agents, who act on behalf of a principal but in their own name, do not fall within the directive . 

In a referral for a preliminary ruling of a question on the exact content of the concept of “negotiation” for the purposes of determining whether the commercial agent's negotiating role necessarily implies the power to change the prices or conditions of sale fixed by the principal, the Court of Justice found that although Directive No 86-653 does not define “negotiate”, the fact that the act of negotiation must relate to the “sale or the purchase of goods on behalf of the principal” shows that the EU legislature intended that that act should have as its objective the conclusion of contracts of sale or purchase on behalf of the principal, bearing in mind that “the main tasks of a commercial agent are bringing new customers to the principal and developing [business] transactions with existing customers”. However, the Court of Justice held that the commercial agent may perform those tasks by means of providing information and advice and engaging in discussions which are such as to promote the conclusion of the transaction for the sale of the goods on behalf of the principal, without the commercial agent having the power to change the prices of those goods. Consequently, to qualify as a commercial agent, a person need not necessarily have the power to modify the prices of the goods he sells on behalf of the principal .  Finally in a request for clarification of the concept of “sale of goods” referred to in Article 1(2) of Directive No 86/653 relating to self-employed commercial agents, the Court of Justice specified that it can cover the  supply, in return for payment of a fee, of computer software to a customer by electronic means where that supply is accompanied by the grant of a perpetual license to use that software .

Under Article 2, the directive does not apply to commercial agents whose activities are unpaid or when they operate on commodity exchanges or in the commodity market, or lastly, where the Member States have retained that option, to those persons whose activities as commercial agents are secondary. By contrast, the concept of continuing authority referred to in Article 1 may cover the conclusion of a single agreement, where that agreement has been renewed on several occasions through the agent especially empowered for that purpose . Furthermore, even though it only refers to agreements concerning goods, the directive can apply to an agency agreement for the supply of services, where the implementing provisions into national law extend its scope to cover those services . 

A commercial agent carrying out activities in Turkey, the principal of which is established in a Member State, does not come within the scope of application of the directive: Case C-507/15 Agro Foreign Trade & Agency Ltd, Judgment of 16 February 2017, LawLex201700000367JBJ.

Directive No 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents, OJEC L 382 of 31 December 1986, 17. See under French law, Article L. 134-1 of the Commercial Code.

Case C-452/17 Zako SPRL, Judgment of 21 November 2018, LawLex201800001781JBJ.

Case C-85/03 Mavrona [2004] ECR I-1573, LawLex200900001194JBJ: furthermore, the Court has underlined that the needs for protection of these two traders are different. 

Case C-828/18 Trendsetteuse SARL, Judgment of 4 June 2020, LawLex202100004218JBJ.

Case C-410/19 The Software Incubator Ltd, Judgment of 16 September 2021, LawLex202100005323JBJ.

Case 3/04 Poseidon Chartering [2006] ECR I-2505, LawLex200900001442JBJ: however, the mere fact that the intermediary maintained relations with the principal throughout the contractual period is, in itself, insufficient to demonstrate such authority. 

Case 3/04 Poseidon Chartering [2006] ECR I-2505, LawLex200900001442JBJ.

European Business Law

190. Context and scope of application

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

190. Context and scope of application

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise