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 parties may freely define the basis and rate of the agent's commission. However, the fact that there is no contractual provision that indicates its calculation methods does not deprive the agent of his right to a commission . The rate varies depending on the sectors of activity and the costs borne by the agent. The costs are in most cases subject to a fixed assessment and then repaid by the pr …

Amount of the commission.

The parties may freely define the basis and rate of the agent's commission. However, the fact that there is no contractual provision that indicates its calculation methods does not deprive the agent of his right to a commission . The rate varies depending on the sectors of activity and the costs borne by the agent. The costs are in most cases subject to a fixed assessment and then repaid by the principal. However, the contract may also stipulate that the agent personally bears all social security and tax charges related to their activity, in which case an agent who invoices fees by applying the contractually agreed percentage not to the commission excluding tax, but to the commission including all taxes, must reimburse the overpayment, even if the principal was negligent in failing to verify the content of the invoices submitted . In the absence of a contractual provision, the commission is deemed to cover both the agent’s remuneration and the reimbursement of expenses incurred in carrying out their duties.

The level of the commission may be adjusted to take account of the nature of the transaction carried out. Thus, with an exclusivity clause, a higher remuneration may be granted to the agent where he has personally handled a transaction. An increased commission may also be granted in the case of del credere and good consignment clauses, or overcharge clauses, which authorizes the agent to sell at higher prices than those set by the principal. Moreover, in the absence of a contrary provision in the agency contract relating to the marketing of individual houses to be built, the commission base due to the agent must include not only the amounts invoiced for construction work but also those relating to interior fittings . Conversely, where the contractual provisions specify that the commission is calculated on the amount of invoices collected excluding taxes, the court may not grant the agent an advance calculated on payments received inclusive of tax .

An adjustment of the commission rate may be stipulated in the contract, in particular where the amount of the commission has been fixed in accordance with the nature and scope of the activities of the commercial agent. Changes in the conditions under which the agent exercises his activities, regarding for example the consignment or supply of goods, therefore result in an adjustment of the commission rate.

Where the contract is silent, a unilateral adjustment is impossible. The agency contract must therefore be terminated for breach by the principal alone where he adopts a pricing policy resulting in a loss of 20% of the agent's commission . Changes in the commission rate may only result from an express agreement between the parties: the fact that a commercial agent accepts reduced commissions does not amount to an acceptance of the principle of a decrease in his remuneration . Since the agency contract has a civil nature with respect to the agent, no evidence other than a written document can therefore be retained against and in addition to that act . The principal is also precluded from automatically applying the reduced commission rate relative to complex markets without bringing evidence that the conditions of application of that rate have been fulfilled . Likewise, he cannot unilaterally apply a reduced rate to orders accepted despite the lack of compliance with his price list . On the other hand, a commercial agent who invoices at the reduced rate that the principal has asked him to charge due to ongoing economic difficulties is deemed to have accepted it even if said rate was only referred to in an e-mail . Conversely, the principal’s agreement to a higher commission for a specific deal cannot be interpreted as a modification of the commission rate applicable in the future to all contracts negotiated by the agent , unless the principal has subsequently applied this rate for three years and has recorded it in his or her own accounting documents .

While the Court of Cassation allows the principal company to deduct from the agent’s commissions any late penalties charged by the final customer, provided it establishes that they are attributable to a fault on the agent's part , it may not, however, deduct discounts granted by the agent to customers or “direct purchase” costs for which it offers no justification .

CA Nîmes, 20 March 2003, LawLex200300004463JBJ.

CA Nîmes, 26 January 2024, LawLex202400000726JBJ.

CA Montpellier, 2 November 2021, LawLex202100005753JBJ.

CA Besançon, 20 October 2020, LawLex202000002841JBJ.

Cass. com., 1 June 2022, LawLex202200003041JBJ.

CA Amiens, 1 June 2021, LawLex202100003485JBJ.

CA Colmar, 19 August 2020, LawLex202000001985JBJ.

CA Chambéry, 2 July 2024, LawLex202400005010JBJ

CA Colmar, 10 July 2024, LawLex202400005522JBJ.

Cass. com., 11 June 2002, LawLex200200004198JBJ; CA Grenoble, 10 September 1998, LawLex200200004202JBJ.

CA Toulouse, 19 May 1998, LawLex200200004765JBJ; but see CA Paris, 29 September 1993, LawLex200200006020JBJ: silence by the commercial agent after receipt of an amendment that changes the terms and conditions of his remuneration is sufficient to show that he has accepted the amendment of the initial contract.

Cass. com., 24 October 1995, LawLex200200005503JBJ; see, for exchanges of letters, CA Riom, 6 July 2022, LawLex202200006355JBJ.

CA Paris, 20 May 2009, LawLex201000001256JBJ.

CA Rennes, 3 March 2020, LawLex202000000340JBJ.

CA Paris, 7 June 2018, LawLex201800000884JBJ.

French Distribution Law

484. Amount of the commission.

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

484. Amount of the 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