This book provides a wide-ranging review of the European rules relating to distribution: exclusive purchase and exclusive supply, exclusive and selective distribution, motor vehicle distribution, franchises, commercial agents.

French Distribution Law

Article L. 134-1 of the Commercial Code defines commercial agents as “mandataires” (agents). As intermediaries permanently entrusted with negotiating and possibly concluding transactions for and on behalf of the principal , the acts they perform immediately and directly produce effects on their principal's estate. The status of commercial agent will be granted only to representatives who meet the  …

Independent representative.

Article L. 134-1 of the Commercial Code defines commercial agents as “mandataires” (agents). As intermediaries permanently entrusted with negotiating and possibly concluding transactions for and on behalf of the principal , the acts they perform immediately and directly produce effects on their principal's estate. The status of commercial agent will be granted only to representatives who meet the definition in Article L. 134-1 of the Commercial Code. Only agents who are fully independent, exercise their activity on a permanent basis, have the power to negotiate contracts and who receive a variable remuneration, may claim the protection offered by the status of commercial agent. It is for the party purporting to rely on the status of commercial agent to bring evidence thereof .

The parties must be careful to define the scope of the agency entrusted to commercial agents as well as their commercial tasks with precision. The negotiation of orders with customers is the mission most frequently entrusted to commercial agents. Their bargaining powers must not be excessively limited even if the principal furthermore frequently reserves the right to refuse orders. Many additional tasks may be entrusted to commercial agents, such as the consignment of goods. In such a case, in addition to their usual mission of customer canvassing, commercial agents may receive the goods, keep them in storage and then supply them. They may also be entrusted with receiving payment or even carrying out the after-sales service . The conclusion of sales for and on behalf of the principal is however rare in practice. 

Commercial agents must exercise a permanent activity of representation, i.e. habitually and not necessarily exclusively although the contract may additionally contain an exclusivity clause. The agent’s authority is considered permanent when it has not been granted for a specific act or several specific acts . An agent who is not permanently or at least usually in charge of negotiating with the customers for purchases, sales, rentals or provisions of services, cannot benefit from the status of commercial agent . The criterion of permanency may be assessed in view of the number of negotiations  and the business volume processed . The Court of Cassation considers that the fact that the joint turnover and the level of commissions received by the agent are moderate is not sufficient to rule out the existence of a permanent mandate . However, a one-off deal negotiated is not sufficient even if several months of work were required . The permanent nature of the relationship can also be measured in terms of the regularity of the orders placed . 

Article 2 paragraph 2 of the Decree of 23 December 1958 authorized agents to “carry out commercial transactions on their own behalf”. The Law of 25 June 1991 has not included that provision in the Decree but its principle is quite clear. It has always been accepted that they may develop other activities on their own behalf or on behalf of another person in addition to their representation activity, provided that this is not for a competing undertaking . The Court of Cassation recently reiterated this rule, clearly stating that the exercise of an ancillary commercial activity, for his own account, does not call into question the status of a representative as a commercial agent ; even if it leads the representative to have their own client base outside the scope of the contract concluded with the principal .

CA Versailles, 6 November 1997, LawLex200200005061JBJ.

CA Versailles, 11 February 2010, LawLex201000000321JBJ: an intermediary who does not bring evidence that he enjoys a power of negotiating the sale of advertising spaces for and on behalf of its principal cannot claim the commercial agent status; Cass. com., 24 September 2003, LawLex200300004435JBJ; 10 December 2003, LawLex200300004578JBJ; 17 March 2009, LawLex200900001121JBJ.

CA Paris, 20 January 1995, LawLex200200005437JBJ.

Cass. com. 19 June 2019, LawLex201900000836JBJ. See also CA Rennes, 24 May 2022, LawLex202200003062JBJ, ruling that the exercise of a trading activity in parallel with that of a commercial agent is not such as to call into question the classification of the contract if the former is only a very minor part of the latter.

Cass. com., 20 March 2024, LawLex202400002482JBJ.

But see CA Toulouse, 4 September 2019, LawLex201900001024JBJ, stressing that the agent who does not provide after-sales service or the management of billing issues does not commit a serious fault where his main role is prospecting for customers..

CA Aix-en-Provence, 6 December 2018, LawLex201800001952JBJ.

CA Versailles, 29 April 1997, LawLex200200004759JBJ; CA Paris, 12 May 2000, LawLex200200004997JBJ; 15 May 2003, LawLex200300003966JBJ; 14 June 2018, LawLex201800000975JBJ, sporadic activity; CA Reims, 11 February 2020, LawLex202000000230JBJ; CA Versailles, 2 June 2022, LawLex202200003022JBJ.

CA  Paris, 31 May 2013, LawLex201300000895JBJ: a representative who for a period of 17 years only produced 43 order receipts for adverts placed.

CA Paris, 12 March 2003, LawLex200300001669JBJ: a company which, for and on behalf of its principal, canvasses distributors and retailers and has the power to negotiate discounts and payment terms, must be defined as a commercial agent given, in particular, the volume of orders placed, regardless of the fact that it has used a specialized agency.

Cass. com., 16 April 2013, LawLex201300000682JBJ.

CA Versailles, 9 January 2014, LawLex201400000081JBJ.

Cass. com., 27 April 2011, LawLex201100000851JBJ; Cf. CA Reims, 8 June 2021, LawLex202100003613JBJ, concerning a representative sometimes led to take initiatives locally, to recommend and carry out certain commercial actions, to intervene in the course of operations, and to occasionally receive purchase orders following calls for tenders after commercial negotiations have already taken place.

French Distribution Law

448. Independent representative.

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Les décisions de justice citées dans ce paragraphe :

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Les notions juridiques connexes

448. Independent representative.

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

Les décisions de justice citées dans ce paragraphe :

Sous parties

Les notions juridiques connexes

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