According to the provisions of article 134-1 paragraph 1 of the commercial code, the commercial agent is
“…an agent who, as a liberal profession, without being bound by a service contract, is permanently responsible for negotiating and, where applicable, concluding contracts for the sale, purchase, rental or provision of services, in the name and on behalf of producers, manufacturers, traders or other commercial agents. He can be a natural person or a legal person. »
This article is the transposition of Directive 86/653/EEC which provides "the commercial agent is the one who, as an independent intermediary, is permanently responsible either for negotiating the sale or purchase of goods on behalf of another person, hereinafter referred to as principal, or to negotiate and conclude these transactions in the name and on behalf of the principal.
The term "negotiate" is at the heart of the definition of commercial agent, without having been the subject of a legal definition. The French courts have retained a restrictive definition of this power of negotiation, which characterizes the commercial agent. Indeed, according to the Court of Cassation, the power of negotiation presupposed that the commercial agent could have certain freedom of movement to reach the conclusion of contracts on behalf of his principal, that is to say modify the price at the margin or even other clauses of the contract in order to convince the co-contracting party to conclude.
Since a judgment of June 4, 2020 of the Court of Justice of the European Union, a natural or legal person must not necessarily have the possibility of modifying the price of the goods for which he sells on behalf of the principal, in order to be qualified as a commercial agent.
From now on, the Court of Cassation relies on the extended definition of the term “negotiation” imposed by the CJEU. Thus, is qualified as commercial agent, the one who develops a new clientele and develops the activity with existing customers on behalf of his principal, and this even if the commercial agent does not have the right to modify the price. . : Cass com 2-12-2020 n° 18-20231, nor even the other conditions of the contract: Cass com 7-09-2022 n° 18-15964.
Negotiating for a commercial agent therefore means above all promoting, informing, advising and exchanging with a view to developing a clientele.
Adopting a broader definition of the term negotiation makes it possible to extend the concept of commercial agent to a greater number of commercial actors who will thus be able to benefit from article 134-12 of the commercial code, of public order. This article grants the commercial agent a severance indemnity “according to the damage suffered” when the principal takes the initiative to terminate the contract (except gross negligence and assignment of the contract).
The damage is generally assessed at two years of commissions.
The damage may be greater, as recalled by this recent decision of September 28, 2022 rendered by the Court of Cassation, which ruled that in the event of early termination of a fixed-term contract, the damage was equivalent to the loss of commissions until the date of the end of the contract initially planned, i.e. in this case: three years of commission.
Cassoc 28-09-2022 n°21-12292
Comments