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

The awarding of territorial exclusivity or, since 2007 , of a specific geographic sector, to the commercial agent entitles him to a subsequent recovery right ("droit de suite") on any transactions concluded on his sector as a result of his action or where the transaction has been concluded with a third party whose custom he obtained previously for transactions of the same kind . The agent's right  …

Right to remuneration on transactions in the geographic sector.

The awarding of territorial exclusivity or, since 2007 , of a specific geographic sector, to the commercial agent entitles him to a subsequent recovery right ("droit de suite") on any transactions concluded on his sector as a result of his action or where the transaction has been concluded with a third party whose custom he obtained previously for transactions of the same kind . The agent's right to commission applies to any sale made in his geographic area, even if he has concentrated his efforts only on certain parts of it .

According to settled case law, the commercial agent receives a commission for all transactions concluded on his sector, even if he has not been involved in their negotiation and conclusion . In a referral by the Court of Cassation on whether the commercial agent may claim a commission for transactions concluded between a third party and a customer belonging to his geographic sector without any action on the principal's part, the European Court of Justice restricted the agent's “droit de suite” . The European Court of Justice considers that Article 7(2) of Directive No 86/653/EEC of 18 December 1986 must be read in conjunction with Article 10, and “it follows from the combination of [the] two paragraphs of Article 10 of Directive No 86/653 that the commercial agent's right to commission arises either when the principal has or should have carried out his obligation, or when the third party to the agency contract, that is the customer, has or should have carried out his obligation. In each instance, the presence of the principal in the transactions for which the commercial agent can claim commission is indispensable”. In other words, the commercial agent in charge of a specified geographic sector is not entitled to commission for transactions concluded by customers belonging to that sector with a third party where there is no direct or indirect action on the principal's part . This is the case for sales made by third-party resellers who intervene not on behalf and for the account of the principal but in their own personal interest . Evidence of the principal's direct or indirect action must be brought by the agent himself . Furthermore, in order to recognize the agent's right to be remunerated on transactions concluded by third parties in his geographic sector, the Court of Cassation requires that his agency contract be in force, the payment of the commission constituting the consideration for it . An agency agreement can however make provision for the commission to be reduced by half where the transaction is concluded on the agent's territory but without his involvement , or can even provide for zero remuneration for transactions concluded directly by the principal without the agent's intervention . On the other hand, orders placed by a purchasing group having its establishments on the territory of a commercial agent, directly with the principal, give rise to commission even if the purchaser has its head office in another area and the goods are intended to be supplied on the whole national territory . Likewise, transactions concluded for two regions covered by the agent give rise to commission even in the absence of any territorial exclusivity, insofar as there is nothing in the contract excluding the payment of his commission in the event that sales are made by third parties  or if he has not expressly waived such right . The fact that purchases made on the agent's territory are intended for resale by distributors not operating in the same geographical sector does not preclude his right to commission .

Cass. com., 23 January 2007, LawLex200700000101JBJ; see also CA Lyon, 25 September 2008, LawLex200800002108JBJ.

Commercial Code, Article L. 134-6, 1st indent. 

CA Rennes, 15 January 2013, LawLex201300000072JBJ. Some courts demand, in order to give effect to the clause excluding the agent's right to commission, that the principal respect his own non-compete obligation: CA Amiens, 20 May 2014, LawLex201400002060JBJ and 13 November 2014, LawLex201400001366JBJ. 

Cass. com., 3 March 2009, LawLex200900001027JBJ.

CA Rennes, 20 November 2012, LawLex201200002368JBJ.

CA Toulouse, 8 January 2013, LawLex201300000034JBJ.

CA Rennes, 25 February 2014, LawLex201400001683JBJ.

Cass. com., 10 April 2019, LawLex201900000530JBJ.

Cass. com., 23 January 2007, LawLex200700000101JBJ; CA Paris, 8 November 2000, LawLex200200004873JBJ; Cass. com., 24 November 1998, LawLex200200005155JBJ, approving CA Paris, 4 October 1996, LawLex200200005600JBJ: exclusivity that the commercial agent enjoys implies that he is entitled to commissions on all the transactions concluded in his sector for the term of the contract, regardless of whether they are carried out as a result of his action; Case C-104/95 Kontogeorgas v Kartonpak [1996] ECR I-6643, LawLex200900000326JBJ: a commercial agent, when he is entrusted with a geographic sector, is entitled to the commission relating to transactions concluded with customers belonging to that sector, even if they have been concluded without his involvement. CA Toulouse, 7 January 2015, LawLex201500000044JBJ: right to commission, even for orders placed by formers customers on the principal, on the agent's sector; CA Pau, 23 August 2018, LawLex201800001210JBJ; CA Lyon, 31 January 2019, LawLex201900000157JBJ: the principal who does not pay commission on indirect sales made by a third party in the territory of the agent on the ground that it is a longtime customer, breaches his obligations since the last agency contract to date no longer provides for reserved customers and grants total exclusivity to the representative.

Case C-19/07 Chevassus-Marche [2008] ECR I-159, LawLex200900000767JBJ. 

The judgment of 17 January 2008, Case C-19/07 Chevassus-Marche [2008] ECR I-159, LawLex200900000767JBJ, therefore stops the abusive extension of the scope of application of the right to indirect commission in the event that the supply of customers located on the agent's territory does not result from the latter's activity or from that of his principal, but from purchasing groups; also see CA Rennes, 3 December 2013, LawLex201300001824JBJ. 

CA Rennes, 3 December 2013, LawLex201300001824JBJ.

Cass. com., 3 May 2012, LawLex201200000731JBJ.

Cass. com., 26 June 2012, LawLex201200001230JBJ.

CA Douai, 12 December 2012, LawLex201300000014JBJ.

French Distribution Law

480. Right to remuneration on transactions in the geographic sector.

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

480. Right to remuneration on transactions in the geographic sector.

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