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

Pursuant to Article 6 of the directive, where the parties have not agreed on anything, the commercial agent is entitled to the remuneration that is customarily applied in the place where he carries on his activities and, if there is no such customary practice, to reasonable remuneration taking into account all the aspects of the transaction. If that remuneration is formed of variable elements depe …

Right to a commission

Pursuant to Article 6 of the directive, where the parties have not agreed on anything, the commercial agent is entitled to the remuneration that is customarily applied in the place where he carries on his activities and, if there is no such customary practice, to reasonable remuneration taking into account all the aspects of the transaction. If that remuneration is formed of variable elements depending on the number or value of business transactions, it is subject to Articles 7 through 12 relating to the right to a commission. 

According to Article 7(1), a commercial agent is entitled to commission for any transaction concluded during the period covered by the agency agreement “where the transaction has been concluded as a result of his action” or “where the transaction is concluded with a third party whom he has previously acquired as a customer for transactions of the same kind”. Pursuant to paragraph 2 of the same article, he is “also” entitled to commission “where he is entrusted with a specific geographical area or group of customers” or “where he has an exclusive right to a specific geographical area or group of customers, and where the transaction has been entered into with a customer belonging to that area or group”. This last assumption has led the European court to assert that where the agent is in charge of a geographic area, not only transactions concluded following his action and with customers he has himself found entitle him to remuneration but also those carried out while he has not found the customers . This solution is based on an interpretation of Article 7 taken as a whole: if paragraph 1 applies to ongoing or previous activities of the agent, paragraph 2 envisages the remuneration from the perspective of transactions having taken place in a geographic area, without requiring any activity. The use of the word “also” in the second part of the provision reinforces the thesis of autonomy of the two paragraphs. The concept of “customer belonging to that area” must be determined by the place of effective commercial activities of the agent. Thus, for a customer with multiple establishments, the following will be taken into account: the place where the negotiations with the customers took place or should have usually taken place; the place where the goods have been supplied; the place where the establishment having placed the order is . By contrast, according to the Court of Justice, a commercial agent entrusted with a specific geographical area is not entitled to commission on transactions concluded between customers belonging to that area with a third party without any action, either direct or indirect, on the principal's part. In effect, Article 7(2) must be interpreted in combination with Article 10 of the directive, which makes the payment of the commission subject to the principal's action .

Case C-104/95 Kontogeorgas v Kartonpak [1996] ECR I-6643, LawLex200900000326JBJ.

Case C-19/07 Commission v Denmark [2007] ECR I-8597, LawLex200900000767JBJ: national courts are however invited to discuss the issue of whether the third party is not himself a representative of the principal.

European Business Law

192. Right to a commission

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

192. Right to a commission

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise