1. A commercial agent shall be entitled to commissions for commercial transactions concluded during the period covered by the agency contract: 1. Member States shall take the necessary measures to ensure that the commercial agent is compensated or compensated for the damage referred to in paragraph 3 after the termination of the agency contract referred to in paragraph 2. 6. The exemption follows the function, but not the name of the relationship. In the Cepsa I judgment, the ECJ held that if a party defined as a distributor and party to a distribution agreement does not in fact bear an economic risk in the light of its function as a distributor (as was the case for those petrol dealers in Spain), the relationship between the principal and the distributor is considered to be identical to that between a representative and his trader for reasons of competition. [8] This logic may also make it possible to classify certain so-called limited liability distributors, as used in many intra-group distribution models (including with a third-party distributor outside the customer`s group), as commercial agents for competitive purposes if the limited risk can be reconciled with the requirements for finding genuine representation. On 5 February 2021, DG Competition published a 9-page working document setting out its preliminary views on how Article 101 TFEU can be applied to a particular type of vertical agreement, namely agency contracts with distributors already in the (…) This list is not exhaustive. However, if the agent bears one or more of the above risks or costs, the agreement between the agent and the client will not be considered an agency contract. The question of risk must be assessed on a case-by-case basis and taking into account the economic reality of the situation and not the legal form. For practical reasons, the risk analysis can begin with the assessment of the risks specific to the contract.
If the agent encounters risks specific to the contract, this is sufficient to conclude that he is an independent distributor. On the contrary, if the agent does not take contract-specific risks, it is necessary to continue the analysis by assessing the risks associated with market-specific investments. Finally, if the agent does not take contract-specific risks and risks related to market-specific investments, it may be necessary to take into account the risks associated with other required activities in the same product market. © European Commission 4. A right to compensation under paragraph 2 or to compensation under paragraph 3 also arises if the commercial agency contract is terminated following the death of the commercial agent. 7. The following obligations, which relate to the ability to define the field of activity of the commercial agent (essential for the trader to take the risks involved), are generally considered to be an inherent (and indispensable) part of a commercial agency contract and are exempted (and not as ancillary agreements, since they assume that there is no competition between a professional and an integrated representative): where the trader has terminated the agency contract due to a delay attributable to the commercial agent which would justify the immediate termination of the agency contract under national law; whether the transaction is mainly due to the efforts of the commercial agent during the period covered by the agency contract and the transaction was concluded within a reasonable time after the termination of the contract; or 21. According to § 15 of the VBER Guidelines, market-specific investments that must be covered by the contracting entity in order for the agency contract to be considered genuine must be distinguished from investments related to the provision of agency services in general, which must not be covered by the contracting entity. However, certain investments may be necessary partly for the provision of agency services in general and partly specifically for the type of activity for which the authentic representative has been appointed by the contracting entity. This is the case, for example, with investments in a website or general advertising for a store and not for the customer`s brand or certain products. DG Competition proposes that, for this type of investment, the amount of capital should cover part of the costs that may be (at least partially) market-specific.
Agency contracts in the European Union apply where a legal or natural person (the agent) is authorised to negotiate and/or conclude contracts for the purchase or sale of goods and services by the principal on behalf of another legal or natural person (the principal), either in his own name or on behalf of the principal. This GT consulting firm examines commercial agency contracts in EU competition law. 13. The analysis carried out in the working document clearly shows that the exemption from Article 101(1) TFEU for commercial agents remains, but that it is important to be able to effectively delineate the activities covered by the agency contract and the associated risks in order to assess whether a commercial agent does not fall within the scope of Article 101, paragraph 1 TFEU. t. 24. In addition, DG Competition proposes that, when setting the lump sum or fixed percentage, the contracting entity should ensure that the amount reflects the differences in costs between genuine agents operating in different Member States or between genuine agents operating under different business models (e.B agents operating only one physical undertaking, agents, which operate only online without being an online platform), is adequately reflected. hybrid agents operating in both directions). In particular, DG Competition is currently of the opinion that where the relevant costs are reimbursed as a percentage of the price of the product sold under the agency contract, the contracting entity should also take into account the fact that the authentic agent can make relevant market-specific investments, even if he does not make sales for a certain period of time. Such a reimbursement system should therefore include a method of calculating and reimbursing those costs in the event that the agent does not make any sales, even if only for a short period.
3. A trade restriction clause shall apply for a maximum period of two years after the termination of the agency contract. 9. The European Commission is currently reviewing the Commission Communication on Vertical Restraints (Vertical Guidelines) in the broader context of the revision of the Block Exemption Regulation[12]. In the context of that examination, the stakeholders pointed out that the vertical guidelines do not sufficiently clearly indicate whether an undertaking operating on a downstream market may act both as a genuine representative and as an independent distributor for different products of the same supplier (so-called `dual-role` agents). In addition, the Directorate-General for Competition has identified a trend towards the increased use of combined agency and distribution models in consumer goods markets, where a single company combines the functions of agent and independent distributor for the same customer/supplier. This 4th round table of the conference in Paris on 27 May 2010 was devoted to the theme of the Agency. The application of the prohibition of restrictive cartels to commercial agency contracts remains particularly delicate. The European Commission applies its theory, which was developed during its (…) 23. Another issue raised by the stakeholders concerns the method of reimbursement of the relevant costs incurred by the agent. Since there may be different ways of compensating an agent, no particular method is required for an agreement to be considered a genuine agency contract, provided that the principal fully covers the corresponding costs. For example, a customer may choose to reimburse the exact costs incurred.
The principal may also choose to cover these costs by paying the agent a fixed lump sum or a fixed share (percentage) of the revenue from the products sold under the agency contract. All of these reimbursement methods are generally acceptable, especially in situations where a client may work with a large number of agents, as they can reduce the administrative burden on both the client and the agents involved. However, DG Competition proposes that these repayment methods be designed in such a way that they always cover all relevant costs, so that the true representative bears no risk or only insignificant risks of the three types of financial or commercial risks mentioned above. This may require a reimbursement system that allows the agent to easily explain and demand reimbursement of costs in excess of the lump sum or fixed percentage. It may also require the client to monitor and review changes in relevant costs and adjust the lump sum or fixed percentage at regular intervals to account for changes in material costs in a manner that does not weigh on the agent. Such a system is intended to ensure that, in practice, all relevant costs are reimbursed to the actual representative. to obtain for his commercial agent the information necessary for the performance of the agency contract and, in particular, to notify the commercial agent within a reasonable time if he expects the volume of commercial transactions to be significantly lower than the commercial agent would normally have expected. A fixed-term agency contract which, after the expiry of that period, is terminated by both parties shall be deemed to have been converted into a commercial agency contract for an indefinite period.
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