Commercial agents are agents who, as independent professionals not linked by contracts for services, shall be permanently entrusted with negotiating and possibly concluding sale, purchase, rental or service provision contracts for and on behalf of producers, industrialists, traders or other commercial agents. Commercial agents may be natural or legal persons.
Agents whose representation tasks are carried out in the context of economic activities which are covered, with regard to these tasks, by special acts shall not come under the provisions of this chapter.
Each party shall be entitled, at its request, to obtain from the other party a signed document indicating the contents of the agency contract, including the contents of its riders.
Commercial agents may agree, without needing authorisation, to represent new principals. However, they may not agree to represent an undertaking competing with that of one of their principals without the latter’s agreement.
The contracts concluded between commercial agents and their principals shall be in the common interest of the parties.
The relationships between commercial agents and principals shall be governed by an obligation of loyalty and a reciprocal duty of information.
Commercial agents must perform their mandate in a professional manner. Principals shall make sure that the commercial agents are able to perform their mandate.
Any element of the remuneration which varies according to the number or value of the deals concluded shall constitute a commission within the meaning of this chapter.
Articles L.134-6 to L.134-9 shall apply when the agents are remunerated in full or in part by the commission thus defined.
If the contract is silent on this, commercial agents shall be entitled to a remuneration in accordance with the usual practice in the sector of activity covered by their mandate and in which they carry out their activity. In the absence of any usual practice, the commercial agent shall be entitled to a reasonable remuneration which takes account of all the elements involved in the operation.
For any commercial transactions concluded during the term of the agency contract, commercial agents shall be entitled to the commission defined in Article L.134-5 when these transactions have been concluded thanks to their intervention or when the transactions have been concluded with a third party whose custom they obtained previously for transactions of the same kind.
When they are entrusted with a geographical sector or a specific group of persons, commercial agents shall also be entitled to the commission for any transaction concluded during the term of the agency contract with a person belonging to this sector or group.
For any commercial transactions concluded after the agency contract ceases, commercial agents shall be entitled to the commission when the transaction is mainly due to their activity during the agency contract and has been concluded within a reasonable period after the contract ceases or when, in accordance with the conditions specified in Article L.134-6, the order from the third party was received by the principal or by the commercial agent before the agency contract ceased.
Commercial agents shall not be entitled to the commission specified in Article L.134-6 if this is due, pursuant to Article L.134-7, to the previous commercial agent, unless the circumstances make it fair to share the commission between the commercial agents.
The commission shall be acquired as soon as the principal has carried out the transaction or should have carried this out under the agreement concluded with the third party or as soon as the third party has carried out the transaction.
The commission shall be acquired at the latest when the third party has carried out its part of the transaction or should have carried this out if the principal has carried out its own part. It shall be paid at the latest on the last day of the month following the quarter in which it was acquired.
The right to the commission may be extinguished only if it is established that the contract between the third party and the principal will not be performed and if this is not due to circumstances attributable to the principal.
The commission which the commercial agent has already received shall be refunded if the right relating thereto is extinguished.
A term contract which continues to be performed by both parties after its term shall be deemed to have been converted into an open contract.
When the agency contract is an open contract, each party may end this by giving prior notice. The provisions of this article shall apply to the term contract converted into an open contract. In this case, the calculation of the duration of the prior notice shall take account of the previous fixed term.
The period of prior notice shall be one month for the first year of the contract, two months for the second year started and three months for the third year started and for subsequent years. In the absence of agreement to the contrary, the end of the prior notice period shall coincide with the end of a calendar month.
The parties may not agree shorter periods of prior notice. If they agree longer periods, the prior notice period specified for the principal must not be shorter than that specified for the agent.
These provisions shall not apply when the contract ends due to serious negligence by one of the parties or the occurrence of a case of force majeure.
If their relationship with their principal ceases, commercial agents shall be entitled to an indemnity for the loss suffered.
Commercial agents shall lose the right to this compensation if they have not notified the principal, within one year of the cessation of the contract, that they intend to use their rights.
The legal successors of commercial agents shall also benefit from the right to compensation when the cessation of the contract is due to the death of the agent.
The compensation specified in Article L.134-12 shall not be due in the following cases:
1° The cessation of the contract is caused by the serious negligence of the commercial agent.
2° The cessation of the contract is initiated by the agent unless this cessation is justified by circumstances attributable to the principal or due to the age, infirmity or illness of the commercial agent, as a result of which the continuation of the latter’s activity can no longer be reasonably required;
3° In accordance with an agreement with the principal, the commercial agent cedes to a third party the rights and obligations held under the agency contract.
The contract may contain a non-competition clause applying after its cessation.
This clause must be established in writing and shall cover the geographical sector and, if applicable, the group of persons entrusted to the commercial agent and the type of goods or services which the latter represents under the contract.
The non-competition clause shall be valid only for a maximum period of two years after a contract ceases.
When the activity of commercial agent is carried out under a written contract, signed by the parties, which is principally for another purpose, the parties may decide in writing that the provisions of this chapter do not apply to the part corresponding to the commercial agency activity.
This renunciation shall be invalid if the performance of the contract reveals that the commercial agency activity is actually being carried out as the principal or decisive element.
Any clause or agreement contrary to the provisions of Articles L.134-2 and L.134-4, the third and fourth paragraphs of Article L.134-11 and Article L.134-15 or establishing an exception, to the detriment of the commercial agent, to the provisions of the second paragraph of Article L.134-9, the first paragraph of Article L.134-10, Articles L.134-12 and L.134-13 and the third paragraph of Article L.134-14 shall be deemed to be unwritten.
CABINET FOUSSAT, Société d’Avocat / Droit de l’agent commercial / Commercial Agent law
[email protected] – Tél. : +33 (0)1 45 74 64 65 / [email protected] – Tél. : + 32 (0)2 318 18 36