CJEU 4 June 2020, case C-828/18 Trendsetteuse SARL v/ DCA SARL
The commercial agent, an intermediary in charge of negotiating and possibly concluding
The commercial agent is an intermediary, charged by a company to negotiate and possibly to conclude contracts of sale, purchase or provision of services in the name and on behalf of this company ( article L.134-1 of the Code of trade ).
Using a commercial agent is advantageous for a company. Indeed, while retaining control of its commercial policy and limiting costs, it can approach new territories by benefiting from the experience and knowledge of its agent on this one.
With regard to the commercial agent, his status is protective. He remains self-employed, receives commissions based on the business carried out and is entitled to receive a compensatory indemnity at the end of the contract, the amount of which amounts in principle to the equivalent of two years of gross commissions.
It is still necessary to claim this compensation, that the activity of the professional concerned corresponds to that of a commercial agent, as defined by article 1 of the European Directive n ° 86/653 / EEC transposed into French law in article L.134-1 of the Commercial Code.
Commercial agent status and the ability to change prices
The Court of Cassation had for a long time had a particularly strict approach to the notion of "negotiation" and thus refused the status of commercial agent to a professional who did not have the ability to modify the prices of the products or services of the company which mandated him. . But this position was not that of all the French jurisdictions, some of which had even entered into resistance.
To put an end to its differences of view, on December 19, 2018, the Commercial Court of Paris referred the question to the Court of Justice of the European Union. On June 4, 2020, the response of the Court of Justice was clear:
« a person does not necessarily have to have the ability to modify the prices of the goods which he sells on behalf of the principal to be qualified as a commercial agent, within the meaning of this provision ».
The Court of Cassation thus aligned itself with this position on December 2, 2020. Expressly basing itself on the case law of the CJEU, it recognizes that an intermediary can be qualified as a commercial agent " although he does not have the power to modify the prices of these products or services ”.
There is no doubt that this reversal of case law should allow the professionals concerned to no longer be deprived of the qualification of commercial agent on the sole ground that they would not have the power to modify the prices of their principals, and to assert more easily their right to compensatory indemnity, in the event of termination of the contract at the initiative of the principal.
General commercial law
Arst Avocats assists its clients in the various areas of commercial law:
• He advises his clients on the regulations applicable to them.
He deals with the various issues relating to the law of obligations (contract law or special contract law and contractual or tort liability) and intervenes at the different stages (negotiation, conclusion, execution and termination) of the contractual relationship between the company and its partners. or customers; • he intervenes at all stages of disputes with which the company is confronted in the context of its activity and represents it, if necessary, before the competent courts or within the framework of alternative dispute resolution procedures (mediation, arbitration, etc.).
Example of recent intervention:
• Constitution of a national fast food franchise network
PAULINE JACQUEMIN CUNY
associate lawyer
Holder of a Master II in Multimedia and IT Law and a Master II in European Business Law from the University of Paris II.
LAURENCE KOUASSI
lawyer
Holder of a Master II in Business Law from the University of Paris X Nanterre and a Master II in Legal and Economic Translation from the University of Cergy-Pontoise
