CJEU 4 June 2020, Case C-828/18 Trendseteuse SARL v DCA SARL
The sales agent, an intermediary responsible for negotiating and possibly concluding the agreement
A commercial agent is an intermediary, charged by a company with negotiating and possibly concluding sales, purchase or service contracts in the name and on behalf of that company ( Article L.134-1 of the Commercial Code ).
Using a sales agent is advantageous for a company. Indeed, while maintaining control over its sales policy and limiting costs, it can explore new territories by benefiting from the agent's experience and knowledge of those territories.
As for the commercial agent, their status is protected. They remain independent, receive commissions based on the business generated, and are entitled to receive compensation at the end of the contract, the amount of which is generally equivalent to two years of gross commissions.
However, in order to claim this compensation, the activity of the professional concerned must correspond to that of a commercial agent, as defined by Article 1 of European Directive No. 86/653/EEC transposed into French law in Article L.134-1 of the Commercial Code.
The status of commercial agent and the ability to change prices
The Court of Cassation had long held a particularly strict interpretation of the concept of "negotiation," thus denying commercial agent status to professionals who did not have the power to modify the prices of the products or services of the company that mandated them. However, this position was not shared by all French courts, some of which even resisted it.
To resolve its differing viewpoints, on December 19, 2018, the Paris Commercial Court referred the question to the Court of Justice of the European Union. On June 4, 2020, the Court of Justice's response was clear:
« A person does not necessarily have to have the power to change the prices of the goods they sell on behalf of the principal to be considered a commercial agent within the meaning of this provision ».
The Court of Cassation aligned itself with this position on December 2, 2020. Expressly relying on the case law of the CJEU, it recognizes that an intermediary can be classified as a commercial agent " even though 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 grounds that they do not have the power to modify the prices of their principals, and to more easily assert their right to compensation in the event of termination of the contract at the initiative of the principal.
General Commercial Law
Arst Avocats assists its clients in various areas of commercial law:
• He advises his clients on the regulations that apply to them. He deals with the various issues relating to the law of obligations (contract law or special contracts law and contractual or tortious liability) and intervenes at the different stages (negotiation, conclusion, performance and termination) of the contractual relationship between the company and its partners or clients;
• he intervenes at all stages of the disputes that the company faces in the course of its business and represents it where necessary before the competent courts or in the context of alternative dispute resolution procedures (mediation, arbitration, etc.).
Example of a recent intervention:
• Establishment of a national fast food franchise network
PAULINE JACQUEMIN CUNY
associate lawyer
Holder of a Master II in Multimedia and Computer 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
