A sales agent qualifies as a “commercial agent” if the agent is in charge of negotiating and, where appropriate, concluding sales, purchase, rental or service contracts on a permanent basis, in the name and on behalf of producers, industrialists, merchants or other commercial agents (French Commercial Code, art. L 134-1).
This qualification is mandatory. This means that, if a sales agent qualifies de facto as a commercial agent, the name which the parties have given to the activity of the agent or the contract is irrelevant for the agent’s rights.
It follows from the above that:
– the holder of an employment contract cannot be a sales agent, as he / she does not act independently from the principal (employer);
– the importer of goods cannot be a sales agent, as he / she is the owner of the imported goods from the moment they enter France until their retail sale;
– an agent is a commercial agent if he / she has the power to “negotiate” contracts, regardless of whether the contract specifies that he /she does not have the power to “bind” the principal. For a long time, French courts had required the agent to be able to modify the prices of the goods or services sold in the name of the principal, as a proof of the agent’s independence. The European Court of Justice has put an end to this requirement by a decison dated 4 of June 2020. It is therefore irrelevant for the application of the status of commercial agent to know whether the agent has or not the authority to negotiate the prices and grant discounts or rebates to the purchasers of the principal’s products or services.
Agents excluded from the qualification of commercial agents pursuant to French law
Certain agents are however excluded from the scope of application of the regulations; this is the case for those subject to special legislative provisions (C. com. art. L 134-1, al. 2), notably travel agents (CA Paris 30-9-1999: RJDA 5/00 n° 531), intermediaries in banking operations (Cass. com. 18-2-2004 n° 351: RJDA 11/04 n° 1209) and real estate agents (Cass. 1e civ. 23-2-2012 n° 10-18.343: RJDA 10/12 n° 846).
However, the provisions governing commercial agents apply to persons authorized by a holder of a real estate agent’s professional license (Law 70-9 of 2-1-1970 art. 3) to negotiate, mediate or enter into commitments on behalf of the latter, provided they are not salaried employees (Law 70-9 art. 4).
Can the parties to an agency contract waive the application of the legal regime of commercial agent provided for by French law?
The short answer is NO. The application of this regime is mandatory.
The legal regime applicable to commercial agents may be waived by the parties only if (C. com. art. L 134-15):
– the commercial agent’s activity is carried out by the agent pursuant to a contract the main purpose of which is different (for example, a supply contract entered into by franchisees with their franchisor in the framework of a franchise agreement whereby the franchisor in charge of negotiating purchases on behalf of the franchisees);
– this contract must be in writing; and
– the waiver must be in writing.
Any clause or agreement contrary to the above rules is deemed non-existent (C. com. art. L 134-16).
