Stéphane Brena

In the first case (judgment of 27 Jan. 2021), a contract entitled "business contributor contract" was terminated by the principal, as a result of which the service provider sued it for payment of a termination fee, arguing that the contract should be reclassified as a commercial agency. The (...)

Facts This decision provides further clarification of the effects of the commercial agent’s serious (or at least allegedly serious) misconduct on the allowance for termination of his relationship with the principal, where such misconduct was discovered after the relationship was terminated; in (...)

Facts and procedure The decision to operate the activity of commercial agent under cover of an EURL must be carefully weighed in view of the consequences it is likely to produce; consequences produced by the screen that the legal personality of the company constitutes. In the present case, a (...)

Facts and procedure. It was not long before the broad interpretation of the commercial agent’s bargaining power, delivered by the ECJ in its judgment of 4 June 2020 (No. C-828/18, Trendsetteuse SARL v. DCA SARL, Lettre distribu. 06/2020, nos. obs. ; Rev. conc., No. 3-2020, p. 107, obs. N. (...)

Facts and procedure. Real estate agents very frequently use commercial agents in the organisation of their sales force. This possibility, which has been difficult for some time, is enshrined in Article 4(2) of Act 70-9 of 2 January 1970 as amended by Act 2006-872 of 13 July 2006. The (...)

Facts. A contract entitled "commercial representation" was entered into on July 13, 2012, to market a food sterilization process. The contract provided, on the one hand, that the broadcaster (Natprocess) had to respect a minimum selling price set by the producer (FCD); on the other hand, an (...)

The serious misconduct of the commercial agent, depriving him, at the time of the termination of the contract, of any right to compensation and of any notice period, gives rise to a lively dispute not only as to its characterization but also as to the moment at which it may be invoked by the (...)

Facts and procedure. It took eighteen months before the Court of Justice delivered its interpretation of the power of negotiation, with which the commercial agent must be endowed on pain of disqualification of his relationship with the principal and denial of the status of Articles L. 134-1 et (...)

The broadcaster’s remuneration on a commission basis requires the supplier to allow the broadcaster to verify the amount due to it, even if the qualification of commercial agent is disregarded. This is, implicitly, the lesson to be learned from a ruling handed down on 23 April by the Versailles (...)

Facts and procedure. Several commercial agreements, concluded between 2002 and 2011, linked costume jewellery producers and a retailer (Auchan). Believing that these agreements included false commercial cooperation services, the producers sued the distributor, by deeds of 27 December 2011 and (...)

Facts. A distribution company, a member of the Intermarché network, was placed in receivership, the court having adopted a plan of sale in favour of two purchasers, authorised to substitute a company to be set up between them. In accordance with the provisions of Article L. 642-7 of the French (...)

In view of its seniority and the abundance of litigation it generates, the status of commercial agents is the subject of solutions that are now classic, which judges are regularly called upon to recall. Nevertheless, it is the seat of difficulties, whether recurrent or new, which are not always (...)

As a touchstone of the status of commercial agents, Article L. 134-12, paragraph 1 of the French Commercial Code provides: "In the event of termination of relations with the principal, the commercial agent shall be entitled to a compensatory indemnity to compensate for the loss suffered". By (...)

Since a law of 21 March 1941, the provisions of which are now codified in Articles L. 7321-1 et seq. of the Labour Code, the "branch manager" benefits from a partial extension of employment law as long as he meets the conditions set out in Article L. 7321-2. In spite of the absence of a (...)

An original figure which has long been apprehended, in ordinary contract law, by case law alone, the assignment of a contract is now governed by articles 1216 to 1216-3 of the Civil Code, resulting from the Order of 10 February 2016, which makes it a solemn contract (Civil Code, art. 1216, (...)

Contract for valuable consideration, the commercial agency contract entitles the agent to remuneration; contract of common interest, it gives rise to compensation of the commercial agent on termination of his relationship with the principal. It is with these two aspects of the status of (...)

On the occasion of a merger, Econocom, the principal, proposed and obtained from its commercial agent, SD Lease, the conclusion of a new agency contract modifying the basis and rate of its commissions - the rate of 6% of turnover is substituted for 9% of the gross margin - and including a (...)

By the judgment under comment, the Court of Cassation very usefully completes the jurisprudential system for dealing with the question of the conditions under which the principal can claim serious misconduct on the part of the commercial agent. First, the Court of Justice (ECJ, 28 Oct. 2010, (...)

The commercial agent is protected by the recognition of a right to an indemnity at the end of the contract under the conditions provided for in Articles L. 134-12 and L. 134-13 of the French Commercial Code. The first of these texts lays down the principle of the right to compensation in the (...)

The CEPC was seized of the question whether "the clause in a sales commission contract requiring the principal alone to pay its commission agent, in the event of non-renewal of the contract, whoever the non-renewer and whatever the cause of such non-renewal, an indemnity of an amount equivalent (...)

The need to qualify a contract, allegedly as a commercial agency, may arise in an international context, a situation which raises not only the question of the application of the criteria for qualification but also, perhaps more thorny, that of their identification. A contract, entitled the (...)

A commercial agency contract is a contract of common interest which is subject to a bilateral obligation of loyalty (Com. C., art. L. 134-4). Failure by the principal to comply with this obligation makes it possible to attribute to him the breach initiated by the agent and thus to maintain the (...)

The sales agent must control the behaviour of his own sales force. This is the main lesson that can be drawn from the judgment under comment. Company N, whose purpose is the marketing of dietary supplements, uses, under a commercial agency contract in 2006, the exclusive services of Company C; (...)

As a professional presenter, the sales representative must be paid for the work he does for his employer’s clients. Article L. 7311-3, 4°, of the Labour Code thus stipulates that the contract concluded between the sales representative and his employer must specify "the rate of remuneration" of (...)

A sub-contract is a contract whose subject matter is all or part of the performance of a main contract. This situation is frequently encountered in contracts relating to services and, in particular, commercial agency contracts. In this case, the sub-agent is nothing other than a commercial (...)

The principle of revocability ad nutum of the agent - without notice or compensation -, provided for in Article 2004 of the Civil Code and justified by the altruistic nature of the agency contract, is set aside when the contract can be qualified as being in the common interest. According to (...)

Transparency and loyalty are the hallmarks of the relationship between the principal and the commercial agent. At least this is how the regulation of the agency contract conceives things, as Article L. 134-4, paragraph 2, of the Commercial Code states that "the relationship between the (...)

Although the question of the possibility for an estate agent to use the services of a commercial agent has now been settled (L. n° 70-9, 2 Jan. 1970, Art. 4, from L. n° 2006-972, 13 Jul. 2006, Art. 97), the determination of the rights of the commercial agent on termination of relations with the (...)

While French domestic case-law tends to reduce the scope of the qualification of commercial agent, through a restricted conception of the concept of negotiation and a general requirement of power of representation conferred on the agent, the Court of Justice of the European Union, referred to (...)

The submission of a contractual relationship to the protective status of commercial agents presupposes that it falls within its scope. As the Toulouse and Paris judges recalled, in the same terms, on the occasion of the two cases under comment, "the application of the status of commercial agent (...)

Rights and obligations of the commercial agent: rigour is required* The status of commercial agents includes provisions relating to the obligations of the distributor and the rights that he may exercise against the principal. These two aspects are addressed by the judgment under commentary, (...)

Commercial agency and bargaining power: a missed opportunity?* The application of the protective status of commercial agents presupposes that the contractual relationship between the principal and the agent meets the qualification criteria set out in Article L.134-1, paragraph 1 of the (...)