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

Prospecting for leads in the name and on behalf of the principal constitutes the agent’s primary obligation. As with insufficient turnover, the agent’s inadequate canvassing amounts to serious misconduct only if it reflects gross negligence on his part. Consequently, a principal may not attribute any shortfall to an agent who has exceeded his targets .
The absence or insufficiency of the agent’s p …

Dilgence obligation owed by agent

Prospecting for leads in the name and on behalf of the principal constitutes the agent’s primary obligation. As with insufficient turnover, the agent’s inadequate canvassing amounts to serious misconduct only if it reflects gross negligence on his part. Consequently, a principal may not attribute any shortfall to an agent who has exceeded his targets .

The absence or insufficiency of the agent’s prospecting for new leads must be established by the principal. It cannot be inferred solely from the lack of sales to the prospective client, insofar as the agent is bound by a best-efforts obligation and not a results-based obligation  or from a decline in turnover alone when that decline is attributable to the principal’s withdrawal of two clients who generated 70% of the agent’s results . Similarly, a commercial agent who has not signed any new contracts for over a year does not commit serious misconduct depriving him of the right to termination indemnity if he continues to maintain the existing client base by regularly renewing their contracts . External factors unrelated to any deficiency on the agent’s part may also explain his performance, such as being denied access to medical offices or being unable to visit hospitals and pharmacies due to the lack of prescribing physicians for the represented products . In particular, a commercial agent who has taken part in various public trade fairs and offered to assist his principal in participating in a franchise-focused trade show cannot be accused of demonstrating a manifest lack of interest in performing the agency agreement amounting to serious misconduct . Moreover, the failure to visit certain clients over five years does not, by itself, constitute insufficient prospecting justifying the loss of the right to indemnity, insofar as some of those clients continued placing orders and the agent implemented alternative prospecting methods such as mailings or creating a website .

On the other hand, an agent who undertakes minimal  prospecting in his sector, or does so carelessly , or who no longer attends events organized by the principal and fails to contact clients suggested by the latter, demonstrates a lack of interest in performing the agency contract and may face termination of the contract . An agent hired specifically to prospect for new clients also commits serious misconduct when he merely handles resupply for existing customers . The same applies to an agent who signs an employment contract with a third party assigning him a prospecting territory far removed from that of the principal, resulting in a collapse of the latter’s turnover . Lastly, the loss of numerous clients leading to the absence of orders in several areas, which had been explicitly denounced several times by the principal, constitutes insufficient prospecting by the commercial agent when the latter fails to demonstrate that it was due to external causes .

CA Lyon, 13 December 2018, LawLex201900002032JBJ. Also see CA Montpellier, 16 December 2014, LawLex201500000004JBJ, holding that an agent who, over a two-year period, loses eight clients but gains only two while still achieving a 10% increase in turnover in his territory, is not in breach of his prospecting obligation.

CA Paris, 16 November 2023, LawLex202300013759JBJ.

CA Rennes, 16 November 2021, LawLex202100005933JBJ.

CA Paris, 18 December 2014, LawLex201400001006JBJ.

CA Toulouse, 29 May 2019, LawLex201900000733JBJ.

CA Rennes, 4 October 2022, LawLex202200008351JBJ. See also CA Paris, 11 December 2014, LawLex201400001488JBJ, holding that an agent who only canvassed existing clients or reactivated “dormant” clients cannot be accused of insufficient prospecting if that activity in itself constituted a significant workload.

CA Paris, 30 June 2022, LawLex202200006364JBJ.

CA Montpellier, 11 December 2018, LawLex201900002030JBJ.

CA Angers, 3 May 2016, LawLex201600000932JBJ.

CA Rennes, 2 February 2021, LawLex202100000638JBJ.

CA Rennes, 20 June 2023, LawLex202300008305JBJ.

French Distribution Law

496. Dilgence obligation owed by agent

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

496. Dilgence obligation owed by agent

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