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美国
USA – Distribution Agreements
12 9 月 2017
- 反垄断
- 分销协议
主要特点
2018年财政法案引入了一个于关于数字交易的新税种（即“网络税”）。
简介:
- “网络税”适用于通过电子工具向居住在意大利的企业提供的服务所应缴纳的税；
- 应税基数是交易价值；
- 税率为 3%;
- 当服务提供者每个自然年进行的相关交易超过3000起时，应缴纳网络税；
- 该税由税务机关向服务接受者征收;
- 该税种将从2019年1月1日起生效。
纳税人
网络税适用于相关服务（见下）的提供者，无论其是否在意大利居住，也不论交易在何地进行。
相关交易
应缴纳“网络税”的交易为通过电子途径向居住在意大利的企业（不包括一些小企业）提供服务的数字交易。
2018年4月30日经济和金融部长将做出法令(“实施条例”)指出“网络税”适用的服务范围。
基于本法的目的，通过电子方式提供的服务是：
- 通过互联网或者电子网络提供的服务；
- 服务的性质根本上是自动化的；
- 人的参与程度被降至最低；
- 如果不具有技术知识，服务无法被提供
应税基数与适用税率
应税基数是交易价值，均相关服务的代价，扣除增值税。 适用税率是3%。
最低阙值
当提供者每个自然年进行的相关交易超过3000起时，应缴纳网络税。由此，如果相关交易低于上述阙值，不需要缴纳“网络税”。
适用机制
除非服务提供商在发票（或者与发票一起发送的其他文件）中写出尚未超出最低限额，否则网络税从服务接受者的对价中预扣。
服务接受者应该在支付对价的次月的16日之前，向税务局缴纳网络税。
适用的方法以及纳税申报和付款义务，适用实施条例的规定。
生效日期
虽然规定“网络税”的法律条款已经生效，但本”网络税”将自2019年1月1日起施行。
If you want to develop your distribution network abroad, a network of commercial agents is the easiest way, and France is no exception. Before entering into an agency contract ruled by French law, it is nevertheless advisable to know its main features, which will be discussed in this post.
Definition
A commercial agent is a professional representative who negotiates and eventually concludes contracts in the name of and on behalf of his principal.
The French Commercial Code (Article L134-1) defines a commercial agent precisely as:
«L’agent commercial est défini comme un mandataire qui, à titre de profession indépendante, sans être lié par un contrat de louage de services, est chargé, de façon permanente, de négocier et, éventuellement, de conclure des contrats de vente, d’achat, de location ou de prestation de services, au nom et pour le compte de producteurs, d’industriels de commerçants ou d’autres agents commerciaux.»
«The commercial agent is an agent who, as an independent professional, without being bound by an employment contract, is in a permanent position to negotiate and eventually to enter into contracts for the sale, purchase, rent/hire or performance of service in the name and on behalf of manufacturers, industrialists, traders or other commercial agents.»
The definition shows that the agent is independent: he/she is free to organise his/her own employment activity and business (sole agency, limited company etc.). This notion is fundamental, because the more the agent will be present and active in the organisation of the principal activity, the more the contract will be at risk of being requalified as a VRP (employee contract of sales representative) contract by the courts.
In the spirit of the contractual relationship and in the drafting of the contract itself, one must be very careful not to confuse an agent with a VRP since, according to French law, the latter is considered an employee, with greater rights and compensation for termination of contract.
Requirements
The agent must be registered in the register of commercial agents at the Registry of the Commercial Court at his place of domicile.
Contract form
The written form is not mandatory but strongly recommended. Article L134-2 of the Commercial Code provides that each party may request both the contract and addenda to be in writing.
Execution of the contract – important clauses
- Duration: for a fixed period or indefinite.
- Fee: a commission freely defined between the parties.
- Territory: it is very important to define the territory with precision and avoid wide generic clauses such as “world”.
- Exclusive: the clause must specify whether the exclusivity is in relation to the territory and/or on the clientele in a precise manner and if the principal reserves the right to intervene.
- Notice of withdrawal (Article L134-11, paragraph 3 of the Commercial Code): 1 month for the first year, 2 months for the second year, 3 months thereafter.
Post-contract – important clauses
Post-contractual non-competition clauses (Article L134-14 of the Commercial Code) must be in written form and limited to a maximum of 2 years post-contract.
The non-competition clauses restriction (territory, customers, products) must not be so restrictive as to prohibit the agent from working after the end of the contract. Therefore customers and products included in the agreement must be competitors of the type of goods subject of the agency contract. Otherwise, the courts will consider the clause as null and non-existent, entitling the agent to claim compensation.
French law does not provide any compensation for compliance with this clause.
After termination of the contract, the agent is entitled to an indemnity for termination as compensation (Article L134-12 of the Commercial Code). It is a rule of public order, therefore, the clause that provides for an exemption of this entitlement will be considered null and non-existent.
The agent has one year to assert this right to severance indemnity.
There is no requirement of keeping it in writing, however, it is advisable to write a notice of receipt as proof of the termination.
The amount of the compensation is equal to two years of commissions (gross) received by the agent. This is to be seen as a maximum measure and it is up to the principal to prove the reason as to why the agent should be entitled to a lower compensation.
In the event of litigation, the courts will at their discretion evaluate the amount of the request of a maximum of two years.
Cases in which compensation is not due:
- Assignment of the contract to another agent;
- Termination of the contract by the agent;
- Serious non-fulfilment of the contract by the agent.
Serious breach of contract can result from the non-fulfilment of clauses that are defined in the contract as important or must be assessed from time to time with the advice of your lawyer.
Focus: the termination of contract due to retirement
The agent is entitled to the indemnity for termination as compensation also when he/she ceases the activity and retires.
French jurisprudence (in particular the jurisprudence of the Court of Cassation), however, requires a more specific check of the reason for the termination of the contract: the agent must not only claim to be entitled to the retirement pension, he should also assert he is not in physical conditions to be able to work anymore.
Which is the competent French court?
Even if the agent is a trading company, the nature of the contract is still civil. By virtue of this, the competent court varies according to the person who brings the claim.
If the agent is the claimant, he can choose between “tribunal de grande instance” and “tribunal de commerce”.
If, on the other hand, the principal is the claimant, he must also begin the claim before the “tribunal de grande instance”.
Long expected by manufacturers of brand-name products, brick-and-mortar-distributors, internet retailers and online platform providers as Amazon, eBay, Zalando, the Court of Justice of the European Union (CJEU) just decided yesterday on 6 December 2017 – its “Santa Claus decision” – that manufacturers may lawfully ban sales via third party platforms.
In a previous Legalmondo post we analysed this dispute (“the Coty case”) just resolved by the CJEU. According to its decision, such platform ban is not necessarily an unlawful restriction of competition under article 101 Treaty on the Functioning of the European Union (“TFEU”): The court has confirmed that selective distribution systems for luxury goods, which shall primarily preserve the goods’ luxury image may comply with European antitrust law.
More specifically, the court decided that platforms bans are lawful, namely that EU law allows restricting online sales in
“a contractual clause, such as that at issue in the present case, which prohibits authorised distributors of a selective distribution network of luxury goods designed, primarily, to preserve the luxury image of those goods from using, in a discernible manner, third-party platforms for internet sales of the goods in question, provided that the following conditions are met: (i) that clause has the objective of preserving the luxury image of the goods in question; (ii) it is laid down uniformly and not applied in a discriminatory fashion; and (iii) it is proportionate in the light of the objective pursued. It will be for the Oberlandesgericht to determine whether those conditions are met.”
(cf. the CJEU’s press release No. 132/2017).
This is the intermediary result of the Coty case as it is now up to the Higher Regional Court of Frankfurt to apply these requirements in the Coty case. Simply put, the question in that case is whether owners of luxury brands may generally or at least partially ban the resale via internet on third-party platforms. The Coty case’s history is quite interesting: The luxury perfume manufacturer Coty’s German subsidiary Coty Germany GmbH (“Coty”) set up a selective distribution network and its distributors may sell via the Internet – but banned to sell via third party platforms which are externally visible as such, i.e. Amazon, eBay, Zalando & Co. The court of first instance decided that such ban of sales via third party platforms was an unlawful restriction of competition. The court of second instance, however, did not see the answer that clear. Instead, the court requested the CJEU to give a preliminary ruling on how European antitrust rules have to be interpreted, namely article 101 TFEU and article 4 lit. b and c of the Vertical Block Exemptions Regulation or “VBER” (decision of 19.04.2016, for details, see the previous post “eCommerce: restrictions on distributors in Germany”). On 30 March 2017, the hearing took place before the CJEU. Coty defended its platform ban, arguing it aimed at protecting the luxury image of brands such as Marc Jacobs, Calvin Klein or Chloe. The distributor Parfümerie Akzente GmbH instead argued that established platforms such as Amazon and eBay already sold various brand-name products, e.g. of L’Oréal. Accordingly, there was no reason for Coty to ban the resale via these marketplaces. Another argument brought forward against the platform ban was that online platforms were important for small and medium-sized enterprises. Indications on how the court could decide appeared on 26 July 2017, with the Advocate General giving his opinion, concluding that platform bans appear possible, provided that the platform ban depends “on the nature of the product, whether it is determined in a uniform fashion and applied without distinction and whether it goes beyond what is necessary” (see the previous post “Distribution online – Platform bans in selective distribution (The Coty case continues)”).
Practical Conclusions:
- This “Santa Claus decision” of 6 December 2017 is highly important for all manufacturers of brand-name products, brick-and-mortar-distributors, internet retailers and online platform providers – because it clarifies that manufacturers of brand-name products may ban sales via third party platforms (Amazon, eBay, Zalando and Co.) to ensure the same level of quality of distribution throughout all distribution channels, offline and online.
- As a glimpse back in advance: the district court of Amsterdam already on 4 October 2017 decided that Nike’s ban on its selective distributors not to use online platforms as Amazon was a lawful distribution criterion to safeguard Nike’s luxury brand image (case of Nike European Operations Netherlands B.V. vs. the Italy-based retailer Action Sport Soc. Coop, A.R.L., ref. no. C/13/615474 / HA ZA 16-959). More details soon!
- The general ban to use price comparison tools as stipulated by the sporting goods manufacturer Asics in its “Distribution System 1.0“ shall be anti-competitive – according to the Bundeskartellamt, as confirmed by the Higher Regional Court of Düsseldorf on 5 April 2017. The last word is, however, still far from being said – see the post “Ban of Price Comparison Tools anti-competitive & void?”. It will be interesting to see how the Coty case’s outcome will influence how to see such bans on price comparison tools.
- For further trends in distribution online, see the EU Commission’s Final report on the E-commerce Sector Inquiry and details in the Staff Working Document, „Final report on the E-commerce Sector Inquiry“.
- For details on distribution networks and distribution online, please see my articles
- “Internetvertrieb in der EU 2018 ff. – Online-Vertriebsvorgaben von Asics über BMW bis Coty”, in: Zeitschrift für Vertriebsrecht2017, 274-281: and
- „Plattformverbote im Selektivvertrieb – der EuGH-Vorlagebeschluss des OLG Frankfurt vom 19.4.2016“, in: Zeitschrift für Vertriebsrecht 2016,278–283.
The Coty case is extremely relevant to distribution in Europe because more than 70% of the world’s luxury items are sold here, many of them online now. For further implications on existing and future distribution networks and the respective agreements, stay tuned: we will elaborate this argument on Legalmondo!
Based on our experience in many years advising and representing companies in the commercial distribution (in Spanish jurisdiction but with foreign manufacturers or distributors), the following are the six key essential elements for manufacturers (suppliers) and retailers (distributors) when establishing a distribution relationship.
These ideas are relevant when companies intend to start their commercial relationship but they should not be neglected and verified even when there are already existing contacts.
The signature of the contract
Although it could seem obvious, the signature of a distribution agreement is less common than it might seem. It often happens that along the extended relationship, the corporate structures change and what once was signed with an entity, has not been renewed, adapted, modified or replaced when the situation has been transformed. It is very convenient to have well documented the relationship at every moment of its existence and to be sure that what has been covered legally is also enforceable y the day-to-day commercial relationship. It is advisable this work to be carried out by legal specialists closely with the commercial department of the company. Perfectly drafted clauses from a legal standpoint will be useless if overtaken or not understood by the day-to-day activity. And, of course, no contract is signed as a “mere formality” and then modified by verbal agreements or practices.
The proper choice of contract
If the signature of the distribution contract is important, the choice of the correct type is essential. Many of the conflicts that occur, especially in long-term relationships, begin with the interpretation of the type of relationship that has been signed. Even with a written text (and with an express title), the intention of the parties remains often unclear (and so the agreement). Is the “distributor” really so? Does he buy and resell or there are only sporadic supply relationships? Is there just a representative activity (ie, the distributor is actually an “agent“)? Is there a mixed relationship (sometimes represents, sometimes buys and resells)? The list could continue indefinitely. Even in many of the relationships that currently exist I am sure that the interpretation given by the Supplier and the Distributor could be different.
Monitoring of legal and business relations
If it is quite frequent not to have a clear written contract, it happens in almost all the distribution relationships than once the agreement has been signed, the day-to-day commercial activity modifies what has been agreed. Why commercial relations seem to neglect what has been written in an agreement? It is quite frequent contracts in which certain obligations for distributors are included (reporting on the market, customers, minimum purchases), but which in practice are not respected (it seems complicated, there is a good relationship between the parties, and nobody remembers what was agreed by people no longer working at the company…). However, it is also quite frequent to try to use these (real?) defaults later on when the relationship starts having problems. At that moment, parties try to hide behind these violations to terminate the contracts although these practices were, in a sort of way, accepted as a new procedure. Of course no agreement can last forever and for that reason is highly recommendable a joint and periodical monitoring between the legal adviser (preferably an independent one with the support of the general managers) and the commercial department to take into account new practices and to have a provision in the contractual documents.
Evidences about customers
In distribution contracts, evidences about customers will be essential in case of termination. Parties (mainly the supplier) are quite interested in showing evidences on who (supplier or distributor) procured the customers. Are they a result of the distributor activity or are they obtained as a consequence of the reputation of the trademark? Evidences on customers could simplify or even avoid future conflicts. The importance of the clientele and its possible future activity will be a key element to define the compensation to which the distributor will pretend to be eligible.
Evidences on purchases and sales
Another essential element and quite often forgotten is the justification of purchases to the supplier and subsequent sales by distributors. In any distribution agreement distributors acquire the products and resell them to the final customers. A future compensation to the distributor will consider the difference between the purchase prices and resale prices (the margin). It is therefore advisable to be able to establish the correspondent evidence on such information in order to better prepare a possible claim.
Damages in case of termination of contracts
Similarly, it would be convenient to justify what damages have been suffered as a result of the termination of a contract: has the distributor made investments by indication of the supplier that are still to be amortized? Has the distributor hired new employees for a line of business that have to be dismissed because of the termination of the contract (costs of compensation)? Has the distributor rented new premises signing long-term contracts due to the expectations on the agreement? Please, take into account that the Distributor is an independent trader and, as such, he assumes the risks of his activity. But to the extent he is acting on a distribution network he shall be subject to the directions, suggestions and expectations created by the supplier. These may be relevant to later determine the damages caused by the termination of the contract.
If your business is related to France or you wish to develop your business in this direction, you need to be aware of one very specific provision with regards to the termination of a business relationship.
Article L. 442-6, I, 5° of the French Commercial Code protects a party to a contract who considers that the other party has terminated the existing business relationship in a sudden and abrupt way, thus causing her a damage.
This is a ‘public policy’ provision and therefore any contractual provision to the contrary will be unenforceable.
Initially, the lawmaker aimed to protect any business relationship between suppliers and major large-scale retailers delisting (ie, removing a supplier’s products that were referenced by a distributor) at the moment of contracts renegotiations or renewals.
Eventually, the article has been drafted in order to extend its scope to any business relationship, regardless of the status of the professionals involved and the nature of the commercial relationship.
The party who wishes to terminate the business relationship does not need to provide any justification for her actions but must send a sufficient prior notice to the other party.
The purpose is to allow the parties, and in particular the abandoned party, to anticipate the discharge of the contract, in particular in cases of economic dependency.
It is an accentuated obligation of loyalty.
There are only two cases strictly interpreted by case law in which the partner is exempted from sending a prior notice:
- an aggravated breach of a contractual obligation;
- a frustration or a force majeure.
There are two main requirements to be fulfilled in order to be able to invoke this provision in front of a judge – an established business relationship and an abrupt termination.
The judge will assess whether the requirements have been fulfilled on a case by case basis.
What does the term ‘established business relationship’ mean?
The most important criterion is the duration, whether a written contract exists or not.
A relationship may be considered as long-term whether there is a single contract or a few consecutive contracts.
If there is no contract in place, the judge will take into account the following criteria:
- the existence of a long-term established business relationship;
- the good faith of the parties;
- the frequency of the transactions and the importance and evolving of the turnover;
- any agreement on the prices applied and/or the discounts granted to the other party;
- any correspondence exchanged between the parties.
What does the term ‘abrupt termination’ mean?
The Courts consider the application of Article L442-6-I 5° if the termination is “unforeseeable, sudden and harsh”.
The termination must comply with the following three conditions in order to be considered as abrupt:
- with no prior notice or with insufficient prior notice;
- sudden;
- unpredictable.
To consider whether a prior notice is sufficient, a judge may consider the following criteria:
- the investments made by the victim of the termination;
- the business involved (eg seasonal fashion collections);
- a constant increase in turnover;
- the market recognition of the products sold by the victim and the difficulty of finding replacement products;
- the existence of a post-contractual non-compete undertaking ;
- the existence of exclusivity between the parties;
- the time period required for the victim to find other openings or refocus the business activity;
- the existence of any economic dependency for the victim.
The courts have decided that a partial termination may also be considered as abrupt in the following cases:
- an organisational change in the distribution structure of the supplier;
- a substantial decrease in trade flows;
- a change in pricing terms or an increase in prices without any prior notice sent by a supplier granting special prices to the buyers, or in general any unilateral and substantial change in the contract terms.
Whatever the justification for the termination, it is necessary to send a registered letter with an acknowledgment of receipt and ensure that the prior notice is sent sufficienlty in advance (some businesses have specific time periods applicable to them by law).
Compensation for a damage
The French Commercial Code provides for the award of damages in order to compensate a party for an abrupt termination of a business relationship.
The damages are calculated by multiplying the notice period which should have been applied by the average profit achieved prior to the termination. Such profit is evaluated based on the pre-tax gross margin that would have been achieved during the required notice period, had sufficient notice been given.
The courts may also award damages for incidental and consequential losses such as redundancy costs, losses of scheduled stocks, operational costs, certain unamortised investments and restructuring costs, indemnities paid to third parties or even image or reputational damage.
International law
The French supreme court competent in civil law (‘Cour de cassation’) considers that in cases where the decision to terminate the business relationship and the resulting damage take place in two different countries, it is a matter of torts and the applicable law will be the one of the country where the triggering event the most closely connected with the tort took place. Therefore the abrupt termination will be subject to French law if the business of the supplier is located in France.
However, the Court of Justice of the European Union (CJEU) has issued a preliminary ruling dated 14 July 2016 answering two questions submitted by the Paris Court of Appeal in a judgment dated 17 April 2015. A French company had been distributing in France the food products of an Italian company for the last 25 years, with no framework agreement or any exclusivity provision in place. The Italian company had terminated the business relationship with no prior notice. The French company issued proceedings against the Italian company in front of the French courts and invoked the abrupt termination of an established business relationship.
The Italian company opposed both the jurisdiction of the French courts and the legal ground for the action arguing that the Italian courts had jurisdiction as the action involved contract law and was therefore subject to the laws of the country where the commodities had been or should have been delivered, in this case Incoterm Ex-works departing from the plant in Italy.
The CJEU has considered that in case of a tacit contractual relationship and pursuant to European law, the liability will be based on contract law (in the same case, pursuant to French law, the liability will be based on torts). As a consequence, Article 5, 3° of the Regulation (EC) 44/2001, also known as Brussels I (which has been replaced by Regulation (EC) 1215/2012, also known as Brussels I bis) will not apply. Therefore, the competent judge will not be the one of the country where the damage occurred but the one of the country where the contractual obligation was being performed.
In addition and answering the second question submitted to it, the CJEU has considered that the contract is:
- a contract for the sale of goods if its purpose is the delivery of goods, in which case the competent jurisdiction will be the one of the country where the goods have been or should have been delivered; and
- a contract for services if its purpose is the provision of services, in which case the competent jurisdiction will be the one of the country where the services have been or should have been provided.
In this case, the Paris Court of Appeal will have to recharacherise the contractual relationship either as consecutive contracts for the sale of goods and deduct the jurisdiction of the Italian courts, or as a contract for services implying the participation of the distributor in the development and the distribution of the supplier’s goods and business strategy and deduct the jurisdiction of the French courts.
In summary, in case of an intra-Community dispute, the distributor who is the victim of an abrupt termination of an established business relationship cannot issue proceedings based on torts in front of a court in the country where the damage occurred if there is a tacit contractual relationship with the supplier. In order to determine the competent jurisdiction in such case, it is necessary to determine whether such tacit contractual relationship consists of a supply of goods or a provision of services.
The next judgment of the Paris Court of Appeal and those of the Cour de cassation to come need to be followed very closely.
To understand the regulation of commercial agency agreements in the US, it is helpful to remember the interplay between federal and state statutory and common law in the US legal system. Under the US Constitution, all power not specifically reserved for the federal government resides with the states. Federal law has exclusive jurisdiction only over certain types of cases (e.g., those involving federal laws, controversies between states and cases involving foreign governments), and share jurisdiction with the state courts in certain other areas (e.g., cases involving parties that reside in different states). In the vast majority of cases, however, state law has exclusive jurisdiction.
Commercial agency is regulated at the state level rather than by US federal law. Almost two-thirds of the US states have adopted specific legislation for commercial agency relationships with non-employees. Most state statutes regulating commercial agency relate to the relationship between a principal and an agent that solicits orders for the purchase of the principal’s products, mainly in wholesale rather than retail transactions (although state law often has special rules for agency relationships with respect to real estate transactions and insurance policies). Typically, state law in this area follows the common law definition of agency, which imputes a fiduciary duty upon the agent for the benefit of the principal to act on the principal’s behalf and subject to the principal’s control.
A second, overarching theme of note to understand the regulation of commercial agency agreements in the US is the primary importance of the doctrine of freedom of contract under state law jurisprudence. As the doctrine’s title suggests, as a matter of policy, courts interpreting a contract generally will seek to respect its terms. Exceptions exist where public policy requires otherwise (e.g., in the consumer or investor context, in cases of adherence contracts or where unconscionable terms are found to exist). As a result, state law generally contain few mandatory, substantive terms that are superimposed on the relationship between principal and agent in an agency arrangement. With certain exceptions (i.e., under certain state franchise regulation where the relationship is deemed to be a franchise under such law), the parties are generally free to contract as they wish in areas ranging from terms of payment to risk allocation to other commercial terms.
General Legal Provisions Applicable to Agency Agreements
As noted, commercial agency is mostly regulated at the state level in the US State laws on agency mainly address commissioned agency, and, where in force, is primarily aimed at ensuring that the principal timely pays the agent the commissions that are owed by imposing liability on the principal for a multiple (often two to four times) of unpaid commissions, as well as for reimbursement of the agent’s attorneys’ fees and costs incurred in collecting the unpaid amount. Other states further require that agency agreements satisfy certain formalities, including that they be in writing (under the so-called “Statute of Frauds” in force in most states) and that they contain specified information (i.e., how earned commissions will be calculated). A minority of states further impose substantive requirements, such as a minimum notice period for termination, the obligation to payment commissions on certain post-term shipments or those in process at expiration or termination of the agency agreement.
Formalities for the Creation of an Agency
New York law does not impose particular formalities for the creation of an agency relationship. In fact, under New York law, absent circumstances under which New York’s general Statute of Frauds rules apply as set forth in § 5-701 of the General Obligations Law, parties may be deemed to be in an agency relationship even without signing an agreement evidencing the agreement consideration or any writing which evidences their agreement. New York law does regulate the payment of sales commissions under New York labor law. New York labor law defines a sales representative as an independent contractor who solicits orders in New York for the wholesale purchase of a supplier’s product or is compensated entirely or partly by commission. However, New York labor law does not otherwise regulate meaningfully the actual sales representative relationship.
Agency Elements and Purpose
Under the law of New York and the majority of states, an “agent” is a person or entity who, by agreement with another called the “principal,” represents the principal in dealings with third persons or transacts business, manages some affair or does some service for the principal. The key elements of an agency are: (i) mutual consent of the parties; (ii) the agent’s fiduciary duties, and (iii) the principal’s control over the agent. A principal may act on a disclosed, undisclosed, or partially disclosed basis in dealing with third parties.
The purpose of an agency may be broadly defined, and ultimately a principal may appoint an agent to perform any act except those which by their nature require personal performance by the principal, violate public policy or are illegal.
A defining element of agency under New York law and the law of the majority of states is the principal’s control over the agent. Indeed, whether the principal will be bound by the agent’s acts will depend, in large part, on whether the agent had actual or apparent authority to act on behalf of the principal. Separate from the question whether an agent’s acts bind the principal is the question whether the agent’s actions create a permanent establishment of the principal under applicable rules of taxation and/or an employer-employee relationship under applicable employment law in the agent’s jurisdiction, thereby potentially subjecting the principal to onerous state and federal tax and employment law obligations.
Factors taken into account in whether the relationship could give rise to a permanent establishment include, among others, the degree to which the agent has the authority to bind the principal and whether the agent carries out a material portion of contract negotiation ultimately signed by the principal. Two of the many factors taken into account in determining whether such a relationship could be characterized as one of employment include whether the agent: (i) provides the services according to her own methods and (ii) is subject to the control of the principal (other than with respect to the results of the agent’s work). Both analyses are specific to fact and circumstances.
Appointment of Sub-agents
Under New York law and the law of the majority of states, a principal may authorize an agent to appoint another agent to act on the principal’s behalf. The second agent may be a subagent or a co-agent. A “subagent” is commonly defined as a person appointed by an agent to perform functions that the agent has consented to perform on behalf of the agent’s principal and for whose conduct the appointing agent is responsible to the principal. Thus, an agent who appoints a subagent delegates to the subagent power to act on behalf of the principal that the principal has conferred on the agent. Appointment of a subagent requires that the appointing agent have actual or apparent authority to do so, and it may be inferred in certain circumstances. As an example, in one case from New York, a claims adjuster hired by an insurance company (acting as agent of the insured) was held to be a subagent of the insured because it was common practice for insurance companies to retain adjusters to aid them to pursue insurance investigations.
With respect to subagents, we note that the relationship between an appointing agent and a subagent is also one of agency. A subagent acts subject to the control of the appointing agent, and the principal’s legal position is affected by action taken by the subagent as if the action had been taken by the appointing agent. As such, in most states, a subagent typically has two principals: the appointing agent and that agent’s principal. In New York and a limited number of other states, by contrast, the agency relation does not exist between the principal and a subagent. Under New York law, a subagent that has been appointed with proper authority will owe the principal the same duties as would the agent; however, for the subagent to have a fiduciary duty to that principal, the subagent must be aware of the identity of the ultimate principal. An agent may appoint a subagent only if the agent has actual or apparent authority to do so.
Rights and Obligations of the Agent
Generally, the following are the most important duties of the agent under state common law:
- Agent must not act outside of its express and implied authority.
- Agent must use care, competence and diligence in acting for the principal.
- Agent must obey the principal’s instructions as long as they are legal.
- Agent must avoid conduct which will damage the principal’s business.
- Agent must not act for an adverse party to a transaction with the principal.
- Agent cannot compete with the principal in the same business in which the agent acts in such capacity for the principal without the principal’s consent.
- Agent must provide the principal with information relevant to the marketing of the principal’s products.
- Agent must separate, account for and remit to the principal all collections for the principal’s account and other property of the principal.
- Agent must not receive compensation from any third party in connection with transactions or actions on which the agent is acting on behalf of the principal.
- Agent must maintain the confidentiality of, and not misuse, the principal’s confidential information.
The agent is subject to a general duty of good faith in the performance of its responsibilities and dealings carried out on behalf of the principal under an agency agreement. However, the agent’s duty generally will not override the specific terms provided for in the agreement between the parties. Under New York law, the agent owes the principal duties of loyalty, obedience and care. Under these duties, an agent cannot have interests in a transaction that is adverse to its principal (e.g., self-dealing or secret profits), the agent must obey all reasonable directions of the principal and the agent must carry out its agency with reasonable care (which includes a duty to notify the principal of all matters that come to the agent’s knowledge affecting the subject of the agency).
Rights and Obligations of the Principal
The following are the most important duties of the principal under state common law:
- Principals must promptly pay terminated agents the commissions that they are owed; in most states, failure to pay can result in penalties, including multiple-damages. Some states apply similar penalties to failures to pay commissions in a timely fashion during the term of the relationship; in contrast, a few states require that a commission be paid on transactions in the pipeline at the time of termination.
- Under the law of some states, an agency arrangement must be in writing, and certain formalities complied with, for the agency arrangement to be binding.
Generally under state law, principal and agent alike are required to act in good faith in performing their obligations in an agency relationship, subject to the express terms agreed to in the agency agreement. Additionally, under the law of some states, the principal is required to indemnify the agent against liabilities vis-à-vis third parties arising out of the performance of the agent’s duties, to compensate the agent reasonably for its services and to reimburse the agent for the reasonable expenses it incurred in carrying such service. New York law does not provide for any mandatory obligations by the principal in favor of the agent in this regard (New York courts having constantly held an agent’s right to indemnification from a principal is based on contract).
Exclusivity
State law generally does not contain mandatory provisions on exclusivity. Indirectly, certain rules (such as the Statute of Frauds under New York law that requires that exclusivity provisions be in writing if they will exceed one year) may apply. Otherwise, parties to a commercial agency arrangement generally may agree contractually on the terms of exclusivity, including whether: (i) to prohibit the agent from entering into agency arrangements with other principals covering the same subject matter within the same territory; (ii) to allow the principal to deal directly with customers located in the same territory without the agent’s involvement; (iii) to limit marketing and sales through the internet (including whether to prohibit the same through the principal’s website and/or whether the agent may do so through its own website); and (iv) a commission is due to the agent on sales made by the principal online to customers in the territory.
Remuneration
There are no specific federal or state regulations regarding commissions or stock consignments generally in commercial agency agreements. Generally, provisions regarding commissions, including the right to the same at and after contract termination or expiration, loss of commission rights and the right to inspect the principal’s books are provided for contractually. We do note an exception: in some US government contracts suppliers are required to certify that they are not paying commissions to non-employees. Furthermore, some federal funding of purchases by foreign buyers carry with them restrictions on commissions payable by the sellers.
Understanding the interplay between federal and state statutory and common law in the US legal system is important to understanding the regulation of exclusive distribution agreements in the US.
Under the US Constitution all power not specifically reserved for the federal government remains with the states. Federal law has exclusive jurisdiction only over certain types of cases (e.g., those involving federal laws, controversies between states and cases involving foreign governments), and share jurisdiction with the states courts in certain other areas (e.g., cases involving parties that reside in different states). In the vast majority of cases, however, state law has exclusive jurisdiction. Similarly, the doctrine of freedom of contract under US law also directly affects how distribution agreements are regulated in the US.
Furthermore, because a distributor is typically an unaffiliated third party acting on its own account rather than on behalf of the supplier as principal, distribution agreements are subject to greater regulation under US federal and state antitrust law. Such law, among other things, (i) regulates whether and the degree to which a supplier in a distribution arrangement may seek in a contract or otherwise to dictate the price at which the distributor will resell products supplied; (ii) imposes restrictions on suppliers that engage in “dual distribution” (selling product directly as well as through a distributor); and (iii) may limit the suppliers’ ability to sell product to different distributors at a different price. Antitrust law also regulates exclusivity and selective distribution arrangements, as well as distribution relationships in certain industries (e.g., federally: automobile manufacturers and petroleum; at the state level, heavy equipment, liquor and farm equipment industries). Furthermore, distribution agreements often may resemble franchise arrangements, subjecting those arrangements to extensive federal and state regulation.
Under the law of most states (including New York), exclusive distribution exists when a supplier grants a distributor exclusive rights to promote and sell the contract goods or services within a territory or to a specific group of customers. Exclusive rights in a distribution arrangement are often granted by the supplier for the distribution of high quality or technically complex products that require a relatively high level of expertise by the distributor, including staff that is specially training to sell the goods or specialized after-sales repair and maintenance or other services. Distribution agreements differ from commercial agency agreements in several respects. In contrast to a distributor, a commercial agent does not take title to product, does not hold inventory and typically has no contractual liability to the customer (including risk of customer non-payment). Conversely, a distributor, in line with the greater risk of its activities, typically can expect greater upside economically in terms of margins on resale relative to an agent’s profit through earned commissions.
Sub-distributors
Under the law of most states (including New York), a distributor may appoint sub-distributors absent any restrictions to the contrary in the agency agreement. Commercially, the appointment of a sub-distributor may have an adverse effect on the supplier by reducing the supplier’s control over its distribution channel activities or increasing the supplier’s potential liability exposure given the increased number of distributors whose actions may be attributed to the supplier. A supplier that does not manage properly the appointment of sub-distributors may also lose valuable product knowledge with respect to the distributed goods (particularly if the goods are novel or complex in nature). Advantages to sub-distributor appointments for the supplier may include a more effective overall marketing presence with enhanced local market knowledge, a broader geographic scope, a potentially lower costs as a result of the sub-distributors’ expertise and efficiencies, etc.
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Rights and Obligations of the Exclusive Distributor
- Sales organization: suppliers are not required to establish sales organizations in exclusive distribution agreements.
- Sales’ target: there are no mandatory rules under federal law or state law (including New York) generally regarding sales targets in exclusive distribution agreements. However, such provisions are common in exclusive distribution agreements.
- Guaranteed minimum target: minimum sales requirements are common in exclusive distribution agreements. As a commercial matter, a supplier as a requirement to give, or maintain, exclusivity with one distributor, will seek through such requirements to ensure that economically the distributor is performing satisfactorily. Often failure to meet sales targets may entitle a supplier to rescind the exclusivity, terminate the agreement or reduce the portion of the territory to which the exclusivity applies. We note that minimum sales requirements in an exclusive distribution arrangement may, in certain cases, be subject to challenge under antitrust law as having an undue anticompetitive effect by preventing a distributor from purchasing products from a competitive supplier.
- Minimum stock: there are no mandatory rules in federal law or the law of the majority of states (including New York) regarding minimum stock. A supplier may seek to have the distributor agree, contractually, to maintain adequate levels of stock relative to market demands as well as to store the product properly.
- After-sales service: the parties to a distribution agreement are generally free to agree as they deem appropriate with respect to after-sale service regarding products.
- Resale Prices: the Exclusive Distributor is free to fix the resale prices. State law (including New York law) generally does not limit the ability of an exclusive distributor to fix resale prices. […] A supplier’s ability to set resale prices for distributors is subject to limitations under federal and state antitrust law. Many state antitrust laws (including New York’s) closely resemble the federal antitrust laws. However, differences exist such that certain conduct may be found not to violate federal antitrust law but still be found to violate state antitrust law (or vice versa). Because the distributor (contrary to an agent) is acting on its own behalf, an agreement between supplier and distributor to maintain certain prices (or if a distributor is deemed to have been coerced by the supplier to follow certain prices), may be a per se price-fixing violation under federal and state antitrust law. Under federal antitrust law, vertical price-fixing until 2007 had been illegal per se. This per se rule was overturned by the Supreme Court. Horizontal price fixing remains per se illegal under the Sherman Act (see below).
Rights and Obligations of the Supplier
- Exclusive Distributor undertaking to supply: generally, state statutes do not specifically provide that a supplier in a distribution relationship has a duty to supply specific levels of product to a distributor, with such obligations generally be established by contractual provision. However, a supplier does have an implied covenant of good faith and fair dealing toward the distributor under state law generally, which generally requires that a party to a commercial agreement not do anything which injures the right of the other to receive the benefits of the agreement). Under the foregoing, a supplier may be deemed to have an obligation to supply product to a distributor (or be found to have violated the implied covenant of good faith and fair dealing in the event that the supplier, although able, decided not to provide a distributor with product without any other contractual justification for not doing so). However, even where such a duty were found to exist, the quantity and frequency of product supply and other details often remain unclear. To avoid uncertainty, distributors often seek to have a specific provision included in the distribution agreement, providing at least for the supplier to be required to use some degree of effort (e.g., “best efforts,”, “reasonable best efforts” or “reasonable efforts”) to supply product responsive to distributor’s submitted purchase orders. On a related topic, generally a distributor typically is only required to inform the supplier of lower purchase estimates if the distributor undertakes to do so (or undertakes a more general obligation with respect to the market) in the distribution agreement. However, even if the supplier is not, under an exclusive distribution agreement, required to supply the distributor with product, the supplier may still be subject to a contractual or common law obligation not to sell to third parties in the territory. New York courts held that suppliers that make direct sales to customers in the territory under an exclusive distribution agreement have breached their duties to the exclusive distributor.
- Retention of title: typically, in sales transactions on credit in the US, title is passed at the moment of initial sale. The buyer typically grants the supplier a security interest in the goods purchased, which if proper perfected under state law, affords the supplier with a priority position relative to other creditors with respect to the products provided (inventory) in the event of non-payment and enforcement.
Construction defects warranty
The law of “products liability” in the US is based on the law of torts. Under New York law, in cases of where an end user is injured by a defective product which was sold by the distributor under a distribution agreement, the end user generally is able to sue the distributor and the supplier of the product under one or more of the following theories: (i) strict liability; (ii) negligence; or (iii) breach of warranty. The usual theory of recovery against a distributor is strict liability. Under a strict liability theory, a supplier or distributor that sells a defective product while engaged in its normal course of business shall be liable for injuries it causes to customers, regardless of privity, foreseeability or the exercise of due care. Product liability cases also are brought under breach of warranty claims. Breach of warranty claims can be based on express warranties (e.g., from advertisement or a product label) and on implied warranties (typically, warranties of merchantability and fitness for a particular purpose under the provisions of the Uniform Commercial Code as adopted by the states). Lastly, negligence claims brought by plaintiffs are based on the improper conduct of the defendant, whether supplier or distributor or other participant in the distribution chain, with respect to the manner of distribution or care of the product sold (examples include improper storage or transport).
Under New York law, exceptions based on misuse, neglect or abuse by the suing party generally apply as defenses against liability under theories of strict liability, negligence or breach of warranty.
The supplier and distributor can allocate third-party liabilities (e.g., potential losses to be paid to plaintiffs in a products liability law suit) and related attorneys fees as between themselves through warranty and other indemnification provisions. Parties to a distribution agreement in the US often seek to put in place such re-allocation provisions not only because of potential liability resulting from a final, unfavorable judgment, but also because of the sizeable legal fees that litigants in the US often incur. In this regard, we note that in the US litigation costs are generally born by all of the litigating parties and not by the losing party as is common in many other countries. Such provisions may include indemnification provisions relating to product liability or trademark infringement claims brought by third parties, limitations on liability provisions (based on monetary caps and exclusions as to the types of damages that may be recovered, such as consequential, punitive, special and indirect damages) and disclaimers in respect of express or implied warranties that may otherwise apply under state law applicable to the distribution agreement.
Exclusivity
Exclusive-dealing provisions – under which the distributor undertakes not to distribute competing products in the territory – are quite common in distribution agreements. However, although it is not easy for a plaintiff to prevail, such a provision may be subject to challenge as an unlawful restriction on competition under federal and state antitrust law, typically under the following federal antitrust laws: (i) section 1 of the Sherman Act, which prohibits contracts “in restraint of trade;”; (ii) section 2 of the Sherman Act, which prohibits “attempt[s] to monopolize” and monopolization; (iii) section 3 of the Clayton Antitrust Act of 1914 […], which prohibits exclusivity arrangements that may “substantially lessen competition” or tend to create a monopoly; and, finally, (iv) section 5 of the Federal Trade Commission Act […], which prohibits “[u]nfair methods of competition.” In deciding these cases, typically courts apply the “rule of reason analysis” under which the exclusive dealing arrangements is analyzed considering a host of factors, including: (a) the defendant’s market power; (b) the degree of foreclosure from the market and barriers to entry; (c) the duration of the contracts; (d) whether exclusivity has the potential to raise competitors’ costs; (e) the presence of actual or likely anticompetitive effects; and (f) legitimate business justifications.
当进入新市场时，有不同的经销策略可供选择（1）在零售，汽车和批发贸易中，经销协议相当普遍（2）在国际经销协议中，双方可以选择适用的法律（3）无论是否被选择，适用的法律仍可能含有令人不快的条款，如德国法律下的商誉赔偿（4）本文将会展示如何可以避免这种令人不快的条款- 参考德国联邦法院（5）的2016年最新判决。
一．进入新市场
进入新市场时，存在不同的结构。选择哪一个取决于所期望的策略：让自己的员工直接销售，或者通过销售商，特许经营商，佣金代理商等销售代理间接销售贴牌产品，或者在许可范围内制造和销售第三方产品。有关德国销售的详细信息，请参阅Legalmondo上发布的“德国经销协议”。
二.经销协议
在零售（特别是电子，化妆品，珠宝，一些时尚用品），汽车和批发贸易中，分销系统是特别常见的 – 无论销售中介是否是指“分销商”，“中间商”，“经销商”，“专业零售商”，“特许经销商”，或“授权经销商”。经销商是个体经营的、独立的承包商，不断以自己的名义和自己的账户出售和推广产品。他们承担销售风险，反之亦然 – 制造商的利润相当低。经销商受到的保护通常较商业代理人少（在欧盟内，1986自营商业代理人的指令适用于欧盟成员国的各自的国家法律。）与销售代理人的协议相反，经销协议受到反垄断法的限制。原则上限制竞争是被禁止的，除非在第十一条TFEU（“欧洲联盟条约”）下它们不明显地限制竞争。有关在线销售的详细信息，请参阅Legalmondo上发布的“限制电子商务经销商”。
三．国际经销和法律选择
当制造商在国际范围内销售其产品或服务时，制造商和经销商的国家法律“碰撞”。为了解决冲突，创造法律确定性，当事人往往会选择适用的法律。通常，每个当事人都会试图适用它“自己的”，也许不是更有利的，但至少在国内外众所周知的法律。或者，双方可以就一个“中立的”，第三方国家的法律达成一致——比如在意大利制造商和德国经销商之间适用瑞士法，并且合同标准方面也有更多的自由。即使选择了法律，在国际贸易中也会有令人不悦的意外——正如“不同国家，不同风俗”的说法一样。
- 首先，因为适用法的选择可能无效——例如，在一些南美国家和中东地区。
- 其次，因为可能会有国际强制性规定(“overriding mandatory provisions”, “lois des police” or “Eingriffsnormen“) ，其对维护国家公共利益具有重要意义以至于“凌驾于”法律选择之上即尽管有其他可选择的有效力的法律其仍被适用。
- 再者，因为所选择的法律可能包含令人不悦的意外，比如德国的经销商商誉损害赔偿。
- 四．“德国”经销商赔偿
此外，德国法律可能会制造意外，特别是以经销商在终止时的善意赔偿请求为形式。虽然在德国法律下没有明确的经销商规则，但有广泛的判例法，并且经销商也适用不同的代理规则，如果以下两种情况得到满足：
经销商
- 整合到供应商的销售组织中；以及
- 在合同终止或期间有义务（由于协议或事实）转发客户数据
如果允许的话，经销商基本上也有权要求终止时的商誉补偿（在与代理人相同的条件下）。一般来说，这种商誉补偿的计算是基于经销商在过去一年中的新客户或经销商已经显著增加业务的已有客户所带来的利润。细节不同；德国法院接受不同的计算方法。
五、如何避免“德国”的经销商商誉赔偿
长期以来，经销商在德国以外但在欧洲经济区（“EEA”）以内经营，是否可以提前排除（即在终止合同前）在德国法律以及相似的代理法下（德国商法典.89b节）的经销商商誉赔偿，这一问题一直存在争议。
这一问题在提交德国联邦法院前被审查（第25／02／2016号决定，参考文献第七号ZR102/15）。被告为在德国成立的电气工业设备制造商。原告为在瑞典和其他欧洲经济区国家活动的经销商。由德国法支持的经销协议；任何签约后的补偿或者薪酬被排除。在被告终止协议后，原告作为经销商要求商誉赔偿。原告在下级法院没有成功，但德国联邦法院现在决定支持原告（并且，法兰克福高级地方法院在06／02／2016，第11号U 136/14（Kart）上采取同样的做法）。
裁决的重点是关于商誉赔偿条款的领土范围（德国商法典89b节）。根据该条款，代理人的商誉赔偿不能提前排除。在已有的判例法中，这一规定可能类似地适用于经销商（见上文）。然而，对于如果经销商在德国范围外，在欧盟/欧洲经济区内经营是否仍被强制支付商誉损害赔偿这一问题存有争议。德国联邦法院如今已经确认——尤其争论于（1）代理法的历史发展和（2）其保护代理商以及经销商的目的：在其他欧洲经济区国家而非德国经营的经销商应当和在德国经营的经销商一样受到保护；相关条款的目的是防止由于对制造商/供应商经济上的依赖而导致的不利的协议。最后，联邦法院认为没有必要向欧盟法院提交这一问题，因为它不属于《1986自营商业代理人指令》的范围。
新的判决与现行判例法相一致：德国联邦法院很可能会继续以此类推向经销商实施代理法。
合同惯例和未来合同起草的五个实用技巧：
1．商誉补偿是一种仅在销售协议出现之后的费用，但应事先考虑——并且，如果此费用可被避免或事先另行规定（例如：规定入门费）。
2.如果经销商在EEA欧洲经济区以外经营，商誉赔偿的索赔随时可被排除，例如：已经存在于经销协议中可被排除（德国商法典92c节；慕尼黑区域法院，11 / 01 / 2002决定，参考号为23 U 4416 / 01）
- 如果经销商在欧洲经济区内经营，适用德国法律并且满足上述两个条件，经销商的商誉损害赔偿的索赔不得在协议终止之前被排除。
- 经销商的德国商誉赔偿可以事先被排除，尤其当当事人:
(i) 排除转移客户数据；或
(ii) 强迫制造商封锁，停止使用，如有必要，在协议终止时删除此类客户数据（德国联邦法院，第05／02／2015号决定，参考第七号315/13文献）；或
(iii) 选择另一法律（因此，导致另一管辖权或仲裁）。
- 或者，当事人可以通过约定“入门费”(“Einstandszahlungen”)来减轻商誉赔偿的索赔——甚至可以推迟到协议终止，然后抵消对商誉赔偿的索赔。然而，此类入门费不可以不合理地过高（联邦法院，第24／02／1983号决定，参考第I ZR 14/81文献），其必须对应于回报值。例如：一个特别高的经销折扣或者一个长期协议期限（慕尼黑高等地区法院，04 / 12/1996的决定，参考号为7 U 3915/96，Saarbrücken高等地区法院，30 / 08 / 2013的决定，参考号为1 U 161/12）。简而言之，制造商必须证明，即使没有入门款，双方也不会同意更高的手续费（正如德国联邦法院2016年7月14日所决定的，参考第VII ZR 297/15文献）。b
意大利 
阿根廷 
巴西 
乌拉圭 
西班牙 
法国 
欧洲 
中国 
写信给 Eric
“德国”经销商赔偿-如何避免
5 9 月 2017
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德国
- 分销协议
- 机构
主要特点
2018年财政法案引入了一个于关于数字交易的新税种（即“网络税”）。
简介:
- “网络税”适用于通过电子工具向居住在意大利的企业提供的服务所应缴纳的税；
- 应税基数是交易价值；
- 税率为 3%;
- 当服务提供者每个自然年进行的相关交易超过3000起时，应缴纳网络税；
- 该税由税务机关向服务接受者征收;
- 该税种将从2019年1月1日起生效。
纳税人
网络税适用于相关服务（见下）的提供者，无论其是否在意大利居住，也不论交易在何地进行。
相关交易
应缴纳“网络税”的交易为通过电子途径向居住在意大利的企业（不包括一些小企业）提供服务的数字交易。
2018年4月30日经济和金融部长将做出法令(“实施条例”)指出“网络税”适用的服务范围。
基于本法的目的，通过电子方式提供的服务是：
- 通过互联网或者电子网络提供的服务；
- 服务的性质根本上是自动化的；
- 人的参与程度被降至最低；
- 如果不具有技术知识，服务无法被提供
应税基数与适用税率
应税基数是交易价值，均相关服务的代价，扣除增值税。 适用税率是3%。
最低阙值
当提供者每个自然年进行的相关交易超过3000起时，应缴纳网络税。由此，如果相关交易低于上述阙值，不需要缴纳“网络税”。
适用机制
除非服务提供商在发票（或者与发票一起发送的其他文件）中写出尚未超出最低限额，否则网络税从服务接受者的对价中预扣。
服务接受者应该在支付对价的次月的16日之前，向税务局缴纳网络税。
适用的方法以及纳税申报和付款义务，适用实施条例的规定。
生效日期
虽然规定“网络税”的法律条款已经生效，但本”网络税”将自2019年1月1日起施行。
If you want to develop your distribution network abroad, a network of commercial agents is the easiest way, and France is no exception. Before entering into an agency contract ruled by French law, it is nevertheless advisable to know its main features, which will be discussed in this post.
Definition
A commercial agent is a professional representative who negotiates and eventually concludes contracts in the name of and on behalf of his principal.
The French Commercial Code (Article L134-1) defines a commercial agent precisely as:
«L’agent commercial est défini comme un mandataire qui, à titre de profession indépendante, sans être lié par un contrat de louage de services, est chargé, de façon permanente, de négocier et, éventuellement, de conclure des contrats de vente, d’achat, de location ou de prestation de services, au nom et pour le compte de producteurs, d’industriels de commerçants ou d’autres agents commerciaux.»
«The commercial agent is an agent who, as an independent professional, without being bound by an employment contract, is in a permanent position to negotiate and eventually to enter into contracts for the sale, purchase, rent/hire or performance of service in the name and on behalf of manufacturers, industrialists, traders or other commercial agents.»
The definition shows that the agent is independent: he/she is free to organise his/her own employment activity and business (sole agency, limited company etc.). This notion is fundamental, because the more the agent will be present and active in the organisation of the principal activity, the more the contract will be at risk of being requalified as a VRP (employee contract of sales representative) contract by the courts.
In the spirit of the contractual relationship and in the drafting of the contract itself, one must be very careful not to confuse an agent with a VRP since, according to French law, the latter is considered an employee, with greater rights and compensation for termination of contract.
Requirements
The agent must be registered in the register of commercial agents at the Registry of the Commercial Court at his place of domicile.
Contract form
The written form is not mandatory but strongly recommended. Article L134-2 of the Commercial Code provides that each party may request both the contract and addenda to be in writing.
Execution of the contract – important clauses
- Duration: for a fixed period or indefinite.
- Fee: a commission freely defined between the parties.
- Territory: it is very important to define the territory with precision and avoid wide generic clauses such as “world”.
- Exclusive: the clause must specify whether the exclusivity is in relation to the territory and/or on the clientele in a precise manner and if the principal reserves the right to intervene.
- Notice of withdrawal (Article L134-11, paragraph 3 of the Commercial Code): 1 month for the first year, 2 months for the second year, 3 months thereafter.
Post-contract – important clauses
Post-contractual non-competition clauses (Article L134-14 of the Commercial Code) must be in written form and limited to a maximum of 2 years post-contract.
The non-competition clauses restriction (territory, customers, products) must not be so restrictive as to prohibit the agent from working after the end of the contract. Therefore customers and products included in the agreement must be competitors of the type of goods subject of the agency contract. Otherwise, the courts will consider the clause as null and non-existent, entitling the agent to claim compensation.
French law does not provide any compensation for compliance with this clause.
After termination of the contract, the agent is entitled to an indemnity for termination as compensation (Article L134-12 of the Commercial Code). It is a rule of public order, therefore, the clause that provides for an exemption of this entitlement will be considered null and non-existent.
The agent has one year to assert this right to severance indemnity.
There is no requirement of keeping it in writing, however, it is advisable to write a notice of receipt as proof of the termination.
The amount of the compensation is equal to two years of commissions (gross) received by the agent. This is to be seen as a maximum measure and it is up to the principal to prove the reason as to why the agent should be entitled to a lower compensation.
In the event of litigation, the courts will at their discretion evaluate the amount of the request of a maximum of two years.
Cases in which compensation is not due:
- Assignment of the contract to another agent;
- Termination of the contract by the agent;
- Serious non-fulfilment of the contract by the agent.
Serious breach of contract can result from the non-fulfilment of clauses that are defined in the contract as important or must be assessed from time to time with the advice of your lawyer.
Focus: the termination of contract due to retirement
The agent is entitled to the indemnity for termination as compensation also when he/she ceases the activity and retires.
French jurisprudence (in particular the jurisprudence of the Court of Cassation), however, requires a more specific check of the reason for the termination of the contract: the agent must not only claim to be entitled to the retirement pension, he should also assert he is not in physical conditions to be able to work anymore.
Which is the competent French court?
Even if the agent is a trading company, the nature of the contract is still civil. By virtue of this, the competent court varies according to the person who brings the claim.
If the agent is the claimant, he can choose between “tribunal de grande instance” and “tribunal de commerce”.
If, on the other hand, the principal is the claimant, he must also begin the claim before the “tribunal de grande instance”.
Long expected by manufacturers of brand-name products, brick-and-mortar-distributors, internet retailers and online platform providers as Amazon, eBay, Zalando, the Court of Justice of the European Union (CJEU) just decided yesterday on 6 December 2017 – its “Santa Claus decision” – that manufacturers may lawfully ban sales via third party platforms.
In a previous Legalmondo post we analysed this dispute (“the Coty case”) just resolved by the CJEU. According to its decision, such platform ban is not necessarily an unlawful restriction of competition under article 101 Treaty on the Functioning of the European Union (“TFEU”): The court has confirmed that selective distribution systems for luxury goods, which shall primarily preserve the goods’ luxury image may comply with European antitrust law.
More specifically, the court decided that platforms bans are lawful, namely that EU law allows restricting online sales in
“a contractual clause, such as that at issue in the present case, which prohibits authorised distributors of a selective distribution network of luxury goods designed, primarily, to preserve the luxury image of those goods from using, in a discernible manner, third-party platforms for internet sales of the goods in question, provided that the following conditions are met: (i) that clause has the objective of preserving the luxury image of the goods in question; (ii) it is laid down uniformly and not applied in a discriminatory fashion; and (iii) it is proportionate in the light of the objective pursued. It will be for the Oberlandesgericht to determine whether those conditions are met.”
(cf. the CJEU’s press release No. 132/2017).
This is the intermediary result of the Coty case as it is now up to the Higher Regional Court of Frankfurt to apply these requirements in the Coty case. Simply put, the question in that case is whether owners of luxury brands may generally or at least partially ban the resale via internet on third-party platforms. The Coty case’s history is quite interesting: The luxury perfume manufacturer Coty’s German subsidiary Coty Germany GmbH (“Coty”) set up a selective distribution network and its distributors may sell via the Internet – but banned to sell via third party platforms which are externally visible as such, i.e. Amazon, eBay, Zalando & Co. The court of first instance decided that such ban of sales via third party platforms was an unlawful restriction of competition. The court of second instance, however, did not see the answer that clear. Instead, the court requested the CJEU to give a preliminary ruling on how European antitrust rules have to be interpreted, namely article 101 TFEU and article 4 lit. b and c of the Vertical Block Exemptions Regulation or “VBER” (decision of 19.04.2016, for details, see the previous post “eCommerce: restrictions on distributors in Germany”). On 30 March 2017, the hearing took place before the CJEU. Coty defended its platform ban, arguing it aimed at protecting the luxury image of brands such as Marc Jacobs, Calvin Klein or Chloe. The distributor Parfümerie Akzente GmbH instead argued that established platforms such as Amazon and eBay already sold various brand-name products, e.g. of L’Oréal. Accordingly, there was no reason for Coty to ban the resale via these marketplaces. Another argument brought forward against the platform ban was that online platforms were important for small and medium-sized enterprises. Indications on how the court could decide appeared on 26 July 2017, with the Advocate General giving his opinion, concluding that platform bans appear possible, provided that the platform ban depends “on the nature of the product, whether it is determined in a uniform fashion and applied without distinction and whether it goes beyond what is necessary” (see the previous post “Distribution online – Platform bans in selective distribution (The Coty case continues)”).
Practical Conclusions:
- This “Santa Claus decision” of 6 December 2017 is highly important for all manufacturers of brand-name products, brick-and-mortar-distributors, internet retailers and online platform providers – because it clarifies that manufacturers of brand-name products may ban sales via third party platforms (Amazon, eBay, Zalando and Co.) to ensure the same level of quality of distribution throughout all distribution channels, offline and online.
- As a glimpse back in advance: the district court of Amsterdam already on 4 October 2017 decided that Nike’s ban on its selective distributors not to use online platforms as Amazon was a lawful distribution criterion to safeguard Nike’s luxury brand image (case of Nike European Operations Netherlands B.V. vs. the Italy-based retailer Action Sport Soc. Coop, A.R.L., ref. no. C/13/615474 / HA ZA 16-959). More details soon!
- The general ban to use price comparison tools as stipulated by the sporting goods manufacturer Asics in its “Distribution System 1.0“ shall be anti-competitive – according to the Bundeskartellamt, as confirmed by the Higher Regional Court of Düsseldorf on 5 April 2017. The last word is, however, still far from being said – see the post “Ban of Price Comparison Tools anti-competitive & void?”. It will be interesting to see how the Coty case’s outcome will influence how to see such bans on price comparison tools.
- For further trends in distribution online, see the EU Commission’s Final report on the E-commerce Sector Inquiry and details in the Staff Working Document, „Final report on the E-commerce Sector Inquiry“.
- For details on distribution networks and distribution online, please see my articles
- “Internetvertrieb in der EU 2018 ff. – Online-Vertriebsvorgaben von Asics über BMW bis Coty”, in: Zeitschrift für Vertriebsrecht2017, 274-281: and
- „Plattformverbote im Selektivvertrieb – der EuGH-Vorlagebeschluss des OLG Frankfurt vom 19.4.2016“, in: Zeitschrift für Vertriebsrecht 2016,278–283.
The Coty case is extremely relevant to distribution in Europe because more than 70% of the world’s luxury items are sold here, many of them online now. For further implications on existing and future distribution networks and the respective agreements, stay tuned: we will elaborate this argument on Legalmondo!
Based on our experience in many years advising and representing companies in the commercial distribution (in Spanish jurisdiction but with foreign manufacturers or distributors), the following are the six key essential elements for manufacturers (suppliers) and retailers (distributors) when establishing a distribution relationship.
These ideas are relevant when companies intend to start their commercial relationship but they should not be neglected and verified even when there are already existing contacts.
The signature of the contract
Although it could seem obvious, the signature of a distribution agreement is less common than it might seem. It often happens that along the extended relationship, the corporate structures change and what once was signed with an entity, has not been renewed, adapted, modified or replaced when the situation has been transformed. It is very convenient to have well documented the relationship at every moment of its existence and to be sure that what has been covered legally is also enforceable y the day-to-day commercial relationship. It is advisable this work to be carried out by legal specialists closely with the commercial department of the company. Perfectly drafted clauses from a legal standpoint will be useless if overtaken or not understood by the day-to-day activity. And, of course, no contract is signed as a “mere formality” and then modified by verbal agreements or practices.
The proper choice of contract
If the signature of the distribution contract is important, the choice of the correct type is essential. Many of the conflicts that occur, especially in long-term relationships, begin with the interpretation of the type of relationship that has been signed. Even with a written text (and with an express title), the intention of the parties remains often unclear (and so the agreement). Is the “distributor” really so? Does he buy and resell or there are only sporadic supply relationships? Is there just a representative activity (ie, the distributor is actually an “agent“)? Is there a mixed relationship (sometimes represents, sometimes buys and resells)? The list could continue indefinitely. Even in many of the relationships that currently exist I am sure that the interpretation given by the Supplier and the Distributor could be different.
Monitoring of legal and business relations
If it is quite frequent not to have a clear written contract, it happens in almost all the distribution relationships than once the agreement has been signed, the day-to-day commercial activity modifies what has been agreed. Why commercial relations seem to neglect what has been written in an agreement? It is quite frequent contracts in which certain obligations for distributors are included (reporting on the market, customers, minimum purchases), but which in practice are not respected (it seems complicated, there is a good relationship between the parties, and nobody remembers what was agreed by people no longer working at the company…). However, it is also quite frequent to try to use these (real?) defaults later on when the relationship starts having problems. At that moment, parties try to hide behind these violations to terminate the contracts although these practices were, in a sort of way, accepted as a new procedure. Of course no agreement can last forever and for that reason is highly recommendable a joint and periodical monitoring between the legal adviser (preferably an independent one with the support of the general managers) and the commercial department to take into account new practices and to have a provision in the contractual documents.
Evidences about customers
In distribution contracts, evidences about customers will be essential in case of termination. Parties (mainly the supplier) are quite interested in showing evidences on who (supplier or distributor) procured the customers. Are they a result of the distributor activity or are they obtained as a consequence of the reputation of the trademark? Evidences on customers could simplify or even avoid future conflicts. The importance of the clientele and its possible future activity will be a key element to define the compensation to which the distributor will pretend to be eligible.
Evidences on purchases and sales
Another essential element and quite often forgotten is the justification of purchases to the supplier and subsequent sales by distributors. In any distribution agreement distributors acquire the products and resell them to the final customers. A future compensation to the distributor will consider the difference between the purchase prices and resale prices (the margin). It is therefore advisable to be able to establish the correspondent evidence on such information in order to better prepare a possible claim.
Damages in case of termination of contracts
Similarly, it would be convenient to justify what damages have been suffered as a result of the termination of a contract: has the distributor made investments by indication of the supplier that are still to be amortized? Has the distributor hired new employees for a line of business that have to be dismissed because of the termination of the contract (costs of compensation)? Has the distributor rented new premises signing long-term contracts due to the expectations on the agreement? Please, take into account that the Distributor is an independent trader and, as such, he assumes the risks of his activity. But to the extent he is acting on a distribution network he shall be subject to the directions, suggestions and expectations created by the supplier. These may be relevant to later determine the damages caused by the termination of the contract.
If your business is related to France or you wish to develop your business in this direction, you need to be aware of one very specific provision with regards to the termination of a business relationship.
Article L. 442-6, I, 5° of the French Commercial Code protects a party to a contract who considers that the other party has terminated the existing business relationship in a sudden and abrupt way, thus causing her a damage.
This is a ‘public policy’ provision and therefore any contractual provision to the contrary will be unenforceable.
Initially, the lawmaker aimed to protect any business relationship between suppliers and major large-scale retailers delisting (ie, removing a supplier’s products that were referenced by a distributor) at the moment of contracts renegotiations or renewals.
Eventually, the article has been drafted in order to extend its scope to any business relationship, regardless of the status of the professionals involved and the nature of the commercial relationship.
The party who wishes to terminate the business relationship does not need to provide any justification for her actions but must send a sufficient prior notice to the other party.
The purpose is to allow the parties, and in particular the abandoned party, to anticipate the discharge of the contract, in particular in cases of economic dependency.
It is an accentuated obligation of loyalty.
There are only two cases strictly interpreted by case law in which the partner is exempted from sending a prior notice:
- an aggravated breach of a contractual obligation;
- a frustration or a force majeure.
There are two main requirements to be fulfilled in order to be able to invoke this provision in front of a judge – an established business relationship and an abrupt termination.
The judge will assess whether the requirements have been fulfilled on a case by case basis.
What does the term ‘established business relationship’ mean?
The most important criterion is the duration, whether a written contract exists or not.
A relationship may be considered as long-term whether there is a single contract or a few consecutive contracts.
If there is no contract in place, the judge will take into account the following criteria:
- the existence of a long-term established business relationship;
- the good faith of the parties;
- the frequency of the transactions and the importance and evolving of the turnover;
- any agreement on the prices applied and/or the discounts granted to the other party;
- any correspondence exchanged between the parties.
What does the term ‘abrupt termination’ mean?
The Courts consider the application of Article L442-6-I 5° if the termination is “unforeseeable, sudden and harsh”.
The termination must comply with the following three conditions in order to be considered as abrupt:
- with no prior notice or with insufficient prior notice;
- sudden;
- unpredictable.
To consider whether a prior notice is sufficient, a judge may consider the following criteria:
- the investments made by the victim of the termination;
- the business involved (eg seasonal fashion collections);
- a constant increase in turnover;
- the market recognition of the products sold by the victim and the difficulty of finding replacement products;
- the existence of a post-contractual non-compete undertaking ;
- the existence of exclusivity between the parties;
- the time period required for the victim to find other openings or refocus the business activity;
- the existence of any economic dependency for the victim.
The courts have decided that a partial termination may also be considered as abrupt in the following cases:
- an organisational change in the distribution structure of the supplier;
- a substantial decrease in trade flows;
- a change in pricing terms or an increase in prices without any prior notice sent by a supplier granting special prices to the buyers, or in general any unilateral and substantial change in the contract terms.
Whatever the justification for the termination, it is necessary to send a registered letter with an acknowledgment of receipt and ensure that the prior notice is sent sufficienlty in advance (some businesses have specific time periods applicable to them by law).
Compensation for a damage
The French Commercial Code provides for the award of damages in order to compensate a party for an abrupt termination of a business relationship.
The damages are calculated by multiplying the notice period which should have been applied by the average profit achieved prior to the termination. Such profit is evaluated based on the pre-tax gross margin that would have been achieved during the required notice period, had sufficient notice been given.
The courts may also award damages for incidental and consequential losses such as redundancy costs, losses of scheduled stocks, operational costs, certain unamortised investments and restructuring costs, indemnities paid to third parties or even image or reputational damage.
International law
The French supreme court competent in civil law (‘Cour de cassation’) considers that in cases where the decision to terminate the business relationship and the resulting damage take place in two different countries, it is a matter of torts and the applicable law will be the one of the country where the triggering event the most closely connected with the tort took place. Therefore the abrupt termination will be subject to French law if the business of the supplier is located in France.
However, the Court of Justice of the European Union (CJEU) has issued a preliminary ruling dated 14 July 2016 answering two questions submitted by the Paris Court of Appeal in a judgment dated 17 April 2015. A French company had been distributing in France the food products of an Italian company for the last 25 years, with no framework agreement or any exclusivity provision in place. The Italian company had terminated the business relationship with no prior notice. The French company issued proceedings against the Italian company in front of the French courts and invoked the abrupt termination of an established business relationship.
The Italian company opposed both the jurisdiction of the French courts and the legal ground for the action arguing that the Italian courts had jurisdiction as the action involved contract law and was therefore subject to the laws of the country where the commodities had been or should have been delivered, in this case Incoterm Ex-works departing from the plant in Italy.
The CJEU has considered that in case of a tacit contractual relationship and pursuant to European law, the liability will be based on contract law (in the same case, pursuant to French law, the liability will be based on torts). As a consequence, Article 5, 3° of the Regulation (EC) 44/2001, also known as Brussels I (which has been replaced by Regulation (EC) 1215/2012, also known as Brussels I bis) will not apply. Therefore, the competent judge will not be the one of the country where the damage occurred but the one of the country where the contractual obligation was being performed.
In addition and answering the second question submitted to it, the CJEU has considered that the contract is:
- a contract for the sale of goods if its purpose is the delivery of goods, in which case the competent jurisdiction will be the one of the country where the goods have been or should have been delivered; and
- a contract for services if its purpose is the provision of services, in which case the competent jurisdiction will be the one of the country where the services have been or should have been provided.
In this case, the Paris Court of Appeal will have to recharacherise the contractual relationship either as consecutive contracts for the sale of goods and deduct the jurisdiction of the Italian courts, or as a contract for services implying the participation of the distributor in the development and the distribution of the supplier’s goods and business strategy and deduct the jurisdiction of the French courts.
In summary, in case of an intra-Community dispute, the distributor who is the victim of an abrupt termination of an established business relationship cannot issue proceedings based on torts in front of a court in the country where the damage occurred if there is a tacit contractual relationship with the supplier. In order to determine the competent jurisdiction in such case, it is necessary to determine whether such tacit contractual relationship consists of a supply of goods or a provision of services.
The next judgment of the Paris Court of Appeal and those of the Cour de cassation to come need to be followed very closely.
To understand the regulation of commercial agency agreements in the US, it is helpful to remember the interplay between federal and state statutory and common law in the US legal system. Under the US Constitution, all power not specifically reserved for the federal government resides with the states. Federal law has exclusive jurisdiction only over certain types of cases (e.g., those involving federal laws, controversies between states and cases involving foreign governments), and share jurisdiction with the state courts in certain other areas (e.g., cases involving parties that reside in different states). In the vast majority of cases, however, state law has exclusive jurisdiction.
Commercial agency is regulated at the state level rather than by US federal law. Almost two-thirds of the US states have adopted specific legislation for commercial agency relationships with non-employees. Most state statutes regulating commercial agency relate to the relationship between a principal and an agent that solicits orders for the purchase of the principal’s products, mainly in wholesale rather than retail transactions (although state law often has special rules for agency relationships with respect to real estate transactions and insurance policies). Typically, state law in this area follows the common law definition of agency, which imputes a fiduciary duty upon the agent for the benefit of the principal to act on the principal’s behalf and subject to the principal’s control.
A second, overarching theme of note to understand the regulation of commercial agency agreements in the US is the primary importance of the doctrine of freedom of contract under state law jurisprudence. As the doctrine’s title suggests, as a matter of policy, courts interpreting a contract generally will seek to respect its terms. Exceptions exist where public policy requires otherwise (e.g., in the consumer or investor context, in cases of adherence contracts or where unconscionable terms are found to exist). As a result, state law generally contain few mandatory, substantive terms that are superimposed on the relationship between principal and agent in an agency arrangement. With certain exceptions (i.e., under certain state franchise regulation where the relationship is deemed to be a franchise under such law), the parties are generally free to contract as they wish in areas ranging from terms of payment to risk allocation to other commercial terms.
General Legal Provisions Applicable to Agency Agreements
As noted, commercial agency is mostly regulated at the state level in the US State laws on agency mainly address commissioned agency, and, where in force, is primarily aimed at ensuring that the principal timely pays the agent the commissions that are owed by imposing liability on the principal for a multiple (often two to four times) of unpaid commissions, as well as for reimbursement of the agent’s attorneys’ fees and costs incurred in collecting the unpaid amount. Other states further require that agency agreements satisfy certain formalities, including that they be in writing (under the so-called “Statute of Frauds” in force in most states) and that they contain specified information (i.e., how earned commissions will be calculated). A minority of states further impose substantive requirements, such as a minimum notice period for termination, the obligation to payment commissions on certain post-term shipments or those in process at expiration or termination of the agency agreement.
Formalities for the Creation of an Agency
New York law does not impose particular formalities for the creation of an agency relationship. In fact, under New York law, absent circumstances under which New York’s general Statute of Frauds rules apply as set forth in § 5-701 of the General Obligations Law, parties may be deemed to be in an agency relationship even without signing an agreement evidencing the agreement consideration or any writing which evidences their agreement. New York law does regulate the payment of sales commissions under New York labor law. New York labor law defines a sales representative as an independent contractor who solicits orders in New York for the wholesale purchase of a supplier’s product or is compensated entirely or partly by commission. However, New York labor law does not otherwise regulate meaningfully the actual sales representative relationship.
Agency Elements and Purpose
Under the law of New York and the majority of states, an “agent” is a person or entity who, by agreement with another called the “principal,” represents the principal in dealings with third persons or transacts business, manages some affair or does some service for the principal. The key elements of an agency are: (i) mutual consent of the parties; (ii) the agent’s fiduciary duties, and (iii) the principal’s control over the agent. A principal may act on a disclosed, undisclosed, or partially disclosed basis in dealing with third parties.
The purpose of an agency may be broadly defined, and ultimately a principal may appoint an agent to perform any act except those which by their nature require personal performance by the principal, violate public policy or are illegal.
A defining element of agency under New York law and the law of the majority of states is the principal’s control over the agent. Indeed, whether the principal will be bound by the agent’s acts will depend, in large part, on whether the agent had actual or apparent authority to act on behalf of the principal. Separate from the question whether an agent’s acts bind the principal is the question whether the agent’s actions create a permanent establishment of the principal under applicable rules of taxation and/or an employer-employee relationship under applicable employment law in the agent’s jurisdiction, thereby potentially subjecting the principal to onerous state and federal tax and employment law obligations.
Factors taken into account in whether the relationship could give rise to a permanent establishment include, among others, the degree to which the agent has the authority to bind the principal and whether the agent carries out a material portion of contract negotiation ultimately signed by the principal. Two of the many factors taken into account in determining whether such a relationship could be characterized as one of employment include whether the agent: (i) provides the services according to her own methods and (ii) is subject to the control of the principal (other than with respect to the results of the agent’s work). Both analyses are specific to fact and circumstances.
Appointment of Sub-agents
Under New York law and the law of the majority of states, a principal may authorize an agent to appoint another agent to act on the principal’s behalf. The second agent may be a subagent or a co-agent. A “subagent” is commonly defined as a person appointed by an agent to perform functions that the agent has consented to perform on behalf of the agent’s principal and for whose conduct the appointing agent is responsible to the principal. Thus, an agent who appoints a subagent delegates to the subagent power to act on behalf of the principal that the principal has conferred on the agent. Appointment of a subagent requires that the appointing agent have actual or apparent authority to do so, and it may be inferred in certain circumstances. As an example, in one case from New York, a claims adjuster hired by an insurance company (acting as agent of the insured) was held to be a subagent of the insured because it was common practice for insurance companies to retain adjusters to aid them to pursue insurance investigations.
With respect to subagents, we note that the relationship between an appointing agent and a subagent is also one of agency. A subagent acts subject to the control of the appointing agent, and the principal’s legal position is affected by action taken by the subagent as if the action had been taken by the appointing agent. As such, in most states, a subagent typically has two principals: the appointing agent and that agent’s principal. In New York and a limited number of other states, by contrast, the agency relation does not exist between the principal and a subagent. Under New York law, a subagent that has been appointed with proper authority will owe the principal the same duties as would the agent; however, for the subagent to have a fiduciary duty to that principal, the subagent must be aware of the identity of the ultimate principal. An agent may appoint a subagent only if the agent has actual or apparent authority to do so.
Rights and Obligations of the Agent
Generally, the following are the most important duties of the agent under state common law:
- Agent must not act outside of its express and implied authority.
- Agent must use care, competence and diligence in acting for the principal.
- Agent must obey the principal’s instructions as long as they are legal.
- Agent must avoid conduct which will damage the principal’s business.
- Agent must not act for an adverse party to a transaction with the principal.
- Agent cannot compete with the principal in the same business in which the agent acts in such capacity for the principal without the principal’s consent.
- Agent must provide the principal with information relevant to the marketing of the principal’s products.
- Agent must separate, account for and remit to the principal all collections for the principal’s account and other property of the principal.
- Agent must not receive compensation from any third party in connection with transactions or actions on which the agent is acting on behalf of the principal.
- Agent must maintain the confidentiality of, and not misuse, the principal’s confidential information.
The agent is subject to a general duty of good faith in the performance of its responsibilities and dealings carried out on behalf of the principal under an agency agreement. However, the agent’s duty generally will not override the specific terms provided for in the agreement between the parties. Under New York law, the agent owes the principal duties of loyalty, obedience and care. Under these duties, an agent cannot have interests in a transaction that is adverse to its principal (e.g., self-dealing or secret profits), the agent must obey all reasonable directions of the principal and the agent must carry out its agency with reasonable care (which includes a duty to notify the principal of all matters that come to the agent’s knowledge affecting the subject of the agency).
Rights and Obligations of the Principal
The following are the most important duties of the principal under state common law:
- Principals must promptly pay terminated agents the commissions that they are owed; in most states, failure to pay can result in penalties, including multiple-damages. Some states apply similar penalties to failures to pay commissions in a timely fashion during the term of the relationship; in contrast, a few states require that a commission be paid on transactions in the pipeline at the time of termination.
- Under the law of some states, an agency arrangement must be in writing, and certain formalities complied with, for the agency arrangement to be binding.
Generally under state law, principal and agent alike are required to act in good faith in performing their obligations in an agency relationship, subject to the express terms agreed to in the agency agreement. Additionally, under the law of some states, the principal is required to indemnify the agent against liabilities vis-à-vis third parties arising out of the performance of the agent’s duties, to compensate the agent reasonably for its services and to reimburse the agent for the reasonable expenses it incurred in carrying such service. New York law does not provide for any mandatory obligations by the principal in favor of the agent in this regard (New York courts having constantly held an agent’s right to indemnification from a principal is based on contract).
Exclusivity
State law generally does not contain mandatory provisions on exclusivity. Indirectly, certain rules (such as the Statute of Frauds under New York law that requires that exclusivity provisions be in writing if they will exceed one year) may apply. Otherwise, parties to a commercial agency arrangement generally may agree contractually on the terms of exclusivity, including whether: (i) to prohibit the agent from entering into agency arrangements with other principals covering the same subject matter within the same territory; (ii) to allow the principal to deal directly with customers located in the same territory without the agent’s involvement; (iii) to limit marketing and sales through the internet (including whether to prohibit the same through the principal’s website and/or whether the agent may do so through its own website); and (iv) a commission is due to the agent on sales made by the principal online to customers in the territory.
Remuneration
There are no specific federal or state regulations regarding commissions or stock consignments generally in commercial agency agreements. Generally, provisions regarding commissions, including the right to the same at and after contract termination or expiration, loss of commission rights and the right to inspect the principal’s books are provided for contractually. We do note an exception: in some US government contracts suppliers are required to certify that they are not paying commissions to non-employees. Furthermore, some federal funding of purchases by foreign buyers carry with them restrictions on commissions payable by the sellers.
Understanding the interplay between federal and state statutory and common law in the US legal system is important to understanding the regulation of exclusive distribution agreements in the US.
Under the US Constitution all power not specifically reserved for the federal government remains with the states. Federal law has exclusive jurisdiction only over certain types of cases (e.g., those involving federal laws, controversies between states and cases involving foreign governments), and share jurisdiction with the states courts in certain other areas (e.g., cases involving parties that reside in different states). In the vast majority of cases, however, state law has exclusive jurisdiction. Similarly, the doctrine of freedom of contract under US law also directly affects how distribution agreements are regulated in the US.
Furthermore, because a distributor is typically an unaffiliated third party acting on its own account rather than on behalf of the supplier as principal, distribution agreements are subject to greater regulation under US federal and state antitrust law. Such law, among other things, (i) regulates whether and the degree to which a supplier in a distribution arrangement may seek in a contract or otherwise to dictate the price at which the distributor will resell products supplied; (ii) imposes restrictions on suppliers that engage in “dual distribution” (selling product directly as well as through a distributor); and (iii) may limit the suppliers’ ability to sell product to different distributors at a different price. Antitrust law also regulates exclusivity and selective distribution arrangements, as well as distribution relationships in certain industries (e.g., federally: automobile manufacturers and petroleum; at the state level, heavy equipment, liquor and farm equipment industries). Furthermore, distribution agreements often may resemble franchise arrangements, subjecting those arrangements to extensive federal and state regulation.
Under the law of most states (including New York), exclusive distribution exists when a supplier grants a distributor exclusive rights to promote and sell the contract goods or services within a territory or to a specific group of customers. Exclusive rights in a distribution arrangement are often granted by the supplier for the distribution of high quality or technically complex products that require a relatively high level of expertise by the distributor, including staff that is specially training to sell the goods or specialized after-sales repair and maintenance or other services. Distribution agreements differ from commercial agency agreements in several respects. In contrast to a distributor, a commercial agent does not take title to product, does not hold inventory and typically has no contractual liability to the customer (including risk of customer non-payment). Conversely, a distributor, in line with the greater risk of its activities, typically can expect greater upside economically in terms of margins on resale relative to an agent’s profit through earned commissions.
Sub-distributors
Under the law of most states (including New York), a distributor may appoint sub-distributors absent any restrictions to the contrary in the agency agreement. Commercially, the appointment of a sub-distributor may have an adverse effect on the supplier by reducing the supplier’s control over its distribution channel activities or increasing the supplier’s potential liability exposure given the increased number of distributors whose actions may be attributed to the supplier. A supplier that does not manage properly the appointment of sub-distributors may also lose valuable product knowledge with respect to the distributed goods (particularly if the goods are novel or complex in nature). Advantages to sub-distributor appointments for the supplier may include a more effective overall marketing presence with enhanced local market knowledge, a broader geographic scope, a potentially lower costs as a result of the sub-distributors’ expertise and efficiencies, etc.
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Rights and Obligations of the Exclusive Distributor
- Sales organization: suppliers are not required to establish sales organizations in exclusive distribution agreements.
- Sales’ target: there are no mandatory rules under federal law or state law (including New York) generally regarding sales targets in exclusive distribution agreements. However, such provisions are common in exclusive distribution agreements.
- Guaranteed minimum target: minimum sales requirements are common in exclusive distribution agreements. As a commercial matter, a supplier as a requirement to give, or maintain, exclusivity with one distributor, will seek through such requirements to ensure that economically the distributor is performing satisfactorily. Often failure to meet sales targets may entitle a supplier to rescind the exclusivity, terminate the agreement or reduce the portion of the territory to which the exclusivity applies. We note that minimum sales requirements in an exclusive distribution arrangement may, in certain cases, be subject to challenge under antitrust law as having an undue anticompetitive effect by preventing a distributor from purchasing products from a competitive supplier.
- Minimum stock: there are no mandatory rules in federal law or the law of the majority of states (including New York) regarding minimum stock. A supplier may seek to have the distributor agree, contractually, to maintain adequate levels of stock relative to market demands as well as to store the product properly.
- After-sales service: the parties to a distribution agreement are generally free to agree as they deem appropriate with respect to after-sale service regarding products.
- Resale Prices: the Exclusive Distributor is free to fix the resale prices. State law (including New York law) generally does not limit the ability of an exclusive distributor to fix resale prices. […] A supplier’s ability to set resale prices for distributors is subject to limitations under federal and state antitrust law. Many state antitrust laws (including New York’s) closely resemble the federal antitrust laws. However, differences exist such that certain conduct may be found not to violate federal antitrust law but still be found to violate state antitrust law (or vice versa). Because the distributor (contrary to an agent) is acting on its own behalf, an agreement between supplier and distributor to maintain certain prices (or if a distributor is deemed to have been coerced by the supplier to follow certain prices), may be a per se price-fixing violation under federal and state antitrust law. Under federal antitrust law, vertical price-fixing until 2007 had been illegal per se. This per se rule was overturned by the Supreme Court. Horizontal price fixing remains per se illegal under the Sherman Act (see below).
Rights and Obligations of the Supplier
- Exclusive Distributor undertaking to supply: generally, state statutes do not specifically provide that a supplier in a distribution relationship has a duty to supply specific levels of product to a distributor, with such obligations generally be established by contractual provision. However, a supplier does have an implied covenant of good faith and fair dealing toward the distributor under state law generally, which generally requires that a party to a commercial agreement not do anything which injures the right of the other to receive the benefits of the agreement). Under the foregoing, a supplier may be deemed to have an obligation to supply product to a distributor (or be found to have violated the implied covenant of good faith and fair dealing in the event that the supplier, although able, decided not to provide a distributor with product without any other contractual justification for not doing so). However, even where such a duty were found to exist, the quantity and frequency of product supply and other details often remain unclear. To avoid uncertainty, distributors often seek to have a specific provision included in the distribution agreement, providing at least for the supplier to be required to use some degree of effort (e.g., “best efforts,”, “reasonable best efforts” or “reasonable efforts”) to supply product responsive to distributor’s submitted purchase orders. On a related topic, generally a distributor typically is only required to inform the supplier of lower purchase estimates if the distributor undertakes to do so (or undertakes a more general obligation with respect to the market) in the distribution agreement. However, even if the supplier is not, under an exclusive distribution agreement, required to supply the distributor with product, the supplier may still be subject to a contractual or common law obligation not to sell to third parties in the territory. New York courts held that suppliers that make direct sales to customers in the territory under an exclusive distribution agreement have breached their duties to the exclusive distributor.
- Retention of title: typically, in sales transactions on credit in the US, title is passed at the moment of initial sale. The buyer typically grants the supplier a security interest in the goods purchased, which if proper perfected under state law, affords the supplier with a priority position relative to other creditors with respect to the products provided (inventory) in the event of non-payment and enforcement.
Construction defects warranty
The law of “products liability” in the US is based on the law of torts. Under New York law, in cases of where an end user is injured by a defective product which was sold by the distributor under a distribution agreement, the end user generally is able to sue the distributor and the supplier of the product under one or more of the following theories: (i) strict liability; (ii) negligence; or (iii) breach of warranty. The usual theory of recovery against a distributor is strict liability. Under a strict liability theory, a supplier or distributor that sells a defective product while engaged in its normal course of business shall be liable for injuries it causes to customers, regardless of privity, foreseeability or the exercise of due care. Product liability cases also are brought under breach of warranty claims. Breach of warranty claims can be based on express warranties (e.g., from advertisement or a product label) and on implied warranties (typically, warranties of merchantability and fitness for a particular purpose under the provisions of the Uniform Commercial Code as adopted by the states). Lastly, negligence claims brought by plaintiffs are based on the improper conduct of the defendant, whether supplier or distributor or other participant in the distribution chain, with respect to the manner of distribution or care of the product sold (examples include improper storage or transport).
Under New York law, exceptions based on misuse, neglect or abuse by the suing party generally apply as defenses against liability under theories of strict liability, negligence or breach of warranty.
The supplier and distributor can allocate third-party liabilities (e.g., potential losses to be paid to plaintiffs in a products liability law suit) and related attorneys fees as between themselves through warranty and other indemnification provisions. Parties to a distribution agreement in the US often seek to put in place such re-allocation provisions not only because of potential liability resulting from a final, unfavorable judgment, but also because of the sizeable legal fees that litigants in the US often incur. In this regard, we note that in the US litigation costs are generally born by all of the litigating parties and not by the losing party as is common in many other countries. Such provisions may include indemnification provisions relating to product liability or trademark infringement claims brought by third parties, limitations on liability provisions (based on monetary caps and exclusions as to the types of damages that may be recovered, such as consequential, punitive, special and indirect damages) and disclaimers in respect of express or implied warranties that may otherwise apply under state law applicable to the distribution agreement.
Exclusivity
Exclusive-dealing provisions – under which the distributor undertakes not to distribute competing products in the territory – are quite common in distribution agreements. However, although it is not easy for a plaintiff to prevail, such a provision may be subject to challenge as an unlawful restriction on competition under federal and state antitrust law, typically under the following federal antitrust laws: (i) section 1 of the Sherman Act, which prohibits contracts “in restraint of trade;”; (ii) section 2 of the Sherman Act, which prohibits “attempt[s] to monopolize” and monopolization; (iii) section 3 of the Clayton Antitrust Act of 1914 […], which prohibits exclusivity arrangements that may “substantially lessen competition” or tend to create a monopoly; and, finally, (iv) section 5 of the Federal Trade Commission Act […], which prohibits “[u]nfair methods of competition.” In deciding these cases, typically courts apply the “rule of reason analysis” under which the exclusive dealing arrangements is analyzed considering a host of factors, including: (a) the defendant’s market power; (b) the degree of foreclosure from the market and barriers to entry; (c) the duration of the contracts; (d) whether exclusivity has the potential to raise competitors’ costs; (e) the presence of actual or likely anticompetitive effects; and (f) legitimate business justifications.
当进入新市场时，有不同的经销策略可供选择（1）在零售，汽车和批发贸易中，经销协议相当普遍（2）在国际经销协议中，双方可以选择适用的法律（3）无论是否被选择，适用的法律仍可能含有令人不快的条款，如德国法律下的商誉赔偿（4）本文将会展示如何可以避免这种令人不快的条款- 参考德国联邦法院（5）的2016年最新判决。
一．进入新市场
进入新市场时，存在不同的结构。选择哪一个取决于所期望的策略：让自己的员工直接销售，或者通过销售商，特许经营商，佣金代理商等销售代理间接销售贴牌产品，或者在许可范围内制造和销售第三方产品。有关德国销售的详细信息，请参阅Legalmondo上发布的“德国经销协议”。
二.经销协议
在零售（特别是电子，化妆品，珠宝，一些时尚用品），汽车和批发贸易中，分销系统是特别常见的 – 无论销售中介是否是指“分销商”，“中间商”，“经销商”，“专业零售商”，“特许经销商”，或“授权经销商”。经销商是个体经营的、独立的承包商，不断以自己的名义和自己的账户出售和推广产品。他们承担销售风险，反之亦然 – 制造商的利润相当低。经销商受到的保护通常较商业代理人少（在欧盟内，1986自营商业代理人的指令适用于欧盟成员国的各自的国家法律。）与销售代理人的协议相反，经销协议受到反垄断法的限制。原则上限制竞争是被禁止的，除非在第十一条TFEU（“欧洲联盟条约”）下它们不明显地限制竞争。有关在线销售的详细信息，请参阅Legalmondo上发布的“限制电子商务经销商”。
三．国际经销和法律选择
当制造商在国际范围内销售其产品或服务时，制造商和经销商的国家法律“碰撞”。为了解决冲突，创造法律确定性，当事人往往会选择适用的法律。通常，每个当事人都会试图适用它“自己的”，也许不是更有利的，但至少在国内外众所周知的法律。或者，双方可以就一个“中立的”，第三方国家的法律达成一致——比如在意大利制造商和德国经销商之间适用瑞士法，并且合同标准方面也有更多的自由。即使选择了法律，在国际贸易中也会有令人不悦的意外——正如“不同国家，不同风俗”的说法一样。
- 首先，因为适用法的选择可能无效——例如，在一些南美国家和中东地区。
- 其次，因为可能会有国际强制性规定(“overriding mandatory provisions”, “lois des police” or “Eingriffsnormen“) ，其对维护国家公共利益具有重要意义以至于“凌驾于”法律选择之上即尽管有其他可选择的有效力的法律其仍被适用。
- 再者，因为所选择的法律可能包含令人不悦的意外，比如德国的经销商商誉损害赔偿。
- 四．“德国”经销商赔偿
此外，德国法律可能会制造意外，特别是以经销商在终止时的善意赔偿请求为形式。虽然在德国法律下没有明确的经销商规则，但有广泛的判例法，并且经销商也适用不同的代理规则，如果以下两种情况得到满足：
经销商
- 整合到供应商的销售组织中；以及
- 在合同终止或期间有义务（由于协议或事实）转发客户数据
如果允许的话，经销商基本上也有权要求终止时的商誉补偿（在与代理人相同的条件下）。一般来说，这种商誉补偿的计算是基于经销商在过去一年中的新客户或经销商已经显著增加业务的已有客户所带来的利润。细节不同；德国法院接受不同的计算方法。
五、如何避免“德国”的经销商商誉赔偿
长期以来，经销商在德国以外但在欧洲经济区（“EEA”）以内经营，是否可以提前排除（即在终止合同前）在德国法律以及相似的代理法下（德国商法典.89b节）的经销商商誉赔偿，这一问题一直存在争议。
这一问题在提交德国联邦法院前被审查（第25／02／2016号决定，参考文献第七号ZR102/15）。被告为在德国成立的电气工业设备制造商。原告为在瑞典和其他欧洲经济区国家活动的经销商。由德国法支持的经销协议；任何签约后的补偿或者薪酬被排除。在被告终止协议后，原告作为经销商要求商誉赔偿。原告在下级法院没有成功，但德国联邦法院现在决定支持原告（并且，法兰克福高级地方法院在06／02／2016，第11号U 136/14（Kart）上采取同样的做法）。
裁决的重点是关于商誉赔偿条款的领土范围（德国商法典89b节）。根据该条款，代理人的商誉赔偿不能提前排除。在已有的判例法中，这一规定可能类似地适用于经销商（见上文）。然而，对于如果经销商在德国范围外，在欧盟/欧洲经济区内经营是否仍被强制支付商誉损害赔偿这一问题存有争议。德国联邦法院如今已经确认——尤其争论于（1）代理法的历史发展和（2）其保护代理商以及经销商的目的：在其他欧洲经济区国家而非德国经营的经销商应当和在德国经营的经销商一样受到保护；相关条款的目的是防止由于对制造商/供应商经济上的依赖而导致的不利的协议。最后，联邦法院认为没有必要向欧盟法院提交这一问题，因为它不属于《1986自营商业代理人指令》的范围。
新的判决与现行判例法相一致：德国联邦法院很可能会继续以此类推向经销商实施代理法。
合同惯例和未来合同起草的五个实用技巧：
1．商誉补偿是一种仅在销售协议出现之后的费用，但应事先考虑——并且，如果此费用可被避免或事先另行规定（例如：规定入门费）。
2.如果经销商在EEA欧洲经济区以外经营，商誉赔偿的索赔随时可被排除，例如：已经存在于经销协议中可被排除（德国商法典92c节；慕尼黑区域法院，11 / 01 / 2002决定，参考号为23 U 4416 / 01）
- 如果经销商在欧洲经济区内经营，适用德国法律并且满足上述两个条件，经销商的商誉损害赔偿的索赔不得在协议终止之前被排除。
- 经销商的德国商誉赔偿可以事先被排除，尤其当当事人:
(i) 排除转移客户数据；或
(ii) 强迫制造商封锁，停止使用，如有必要，在协议终止时删除此类客户数据（德国联邦法院，第05／02／2015号决定，参考第七号315/13文献）；或
(iii) 选择另一法律（因此，导致另一管辖权或仲裁）。
- 或者，当事人可以通过约定“入门费”(“Einstandszahlungen”)来减轻商誉赔偿的索赔——甚至可以推迟到协议终止，然后抵消对商誉赔偿的索赔。然而，此类入门费不可以不合理地过高（联邦法院，第24／02／1983号决定，参考第I ZR 14/81文献），其必须对应于回报值。例如：一个特别高的经销折扣或者一个长期协议期限（慕尼黑高等地区法院，04 / 12/1996的决定，参考号为7 U 3915/96，Saarbrücken高等地区法院，30 / 08 / 2013的决定，参考号为1 U 161/12）。简而言之，制造商必须证明，即使没有入门款，双方也不会同意更高的手续费（正如德国联邦法院2016年7月14日所决定的，参考第VII ZR 297/15文献）。b
