Директива была принята
Советом Министров ЕС 18 декабря 1986 г. и направлена на
принципов в отношениях
принципала и агента. Она
распространяется на независимых
агентов, имеющих полномочия
заключать контракты от имени
принципала, а также на агентов,
Агент может быть физическим
лицом, товариществом или
Следует выделить два
положения Директивы. Первое
относится к повторным заказам. В
статье 7 говорится, что на агента
право на комиссионное
вознаграждение за заказы,
клиентами, т.е. найденными им
самим, хотя бы заказы и не были
организованы через него. Это
безусловным. Далее оно
предусматривает, что государства-участники
при введении этого положения на
своей территории могут выбрать
одну из следующих альтернатив:
агент имеет право на комиссию за
все заказы, исходящие с
оговоренной территории или от
группы клиентов, с которыми он
связан, независимо от того, "приобрел"
ли он их или нет; или же он
получает такое право только в
случае, если обладает
исключительным правом в этом
Директивы касается права агента
на компенсацию при прекращении
отношений с принципалом - ст. 17.
возможность выбора одной из двух
альтернатив. Первая заключается
в предоставлении компенсации за
вклад в поддержание реноме
принципала, а вторая
представляет собой "компенсацию
за ущерб", т. е. за утрату
отношений. Директива (ст. 18)
содержит перечень обстоятельств,
в которых компенсация не
выплачивается, однако она не
договора для того, чтобы агент
имел право на компенсацию. Сумма
компенсации (но не иска за ущерб)
не должна превышать суммы
вознаграждения агента за 1 год,
рассчитанного как среднее
годовое вознаграждение за 5
предшествующих лет - ст. 17(2в).
Стороны не могут отступить от
положений, относящихся к праву
агента получить возмещение или
компенсацию, до истечения
агентского соглашения (ст. 19).
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic
Community, and in particular Articles 57(2) and 100
Having regard to the proposal from the Commission (1),
(1) OJ No C 13, 18.1.1977, p.2; OJ No C 56, 2.3.1979, p.5.
Having regard to the opinion of the European Parliament (2),
(2) OJ No C 239, 9.10.1978, p.17.
Having regard to the opinion of the Economic and Social
(3) OJ No C 59, 8.03.1978, p.31.
Whereas the restrictions on the freedom of establishment and
the freedom to provide services in respect of activities of
intermediaries in commerce, industry and small craft
industries were abolished by Directive 64/224/EEC (4);
(4) OJ No 56, 4.4.1964, p.869/64.
Whereas the differences in national laws concerning
commercial representation substantially affect the conditions
of competition and the carrying-on of that activity within
the Community and are detrimental both to the protection
available to commercial agents vis-а-vis their principals
and to the security of commercial transactions; whereas
moreover those differences are such as to inhibit
substantially the conclusion and operation of commerical
representation contracts where principal and commercial
agents are established in different Member States;
Whereas trade in goods between Member States should be
carried on under conditions which are similar to those of a
single market, and this necessitates approximation of the
legal systems of the Member States to the extent required for
the proper functioning of the common market; whereas in this
regard the rules concerning conflict of laws do not, in the
matter of commercial representation, remove the
inconsistencies referred to above, nor would they even if
they were made uniform, and accordingly the proposed
harmonization is necessary notwithstanding the existence of
Whereas in this regard the legal relationship between
commercial agent and principal must be given priority;
Whereas it is appropriate to be guided by the principles of
Article 117 of the Treaty and to maintain improvementsalready
made, when harmonizing the laws of the Member States relating
to commercial agents;
Whereas additional transitional periods should be allowed for
certain Member States which have to make a particular effort
to adapt their regulations, especially those concerning
indemnity for termination of contract between the principal
and the commercial agent, to the requirements of this
HAS ADOPTED THIS DIRECTIVE:
CHAPTER I Scope
1. The harmonization measures prescribed by this Directive
shall apply to the laws, regulations and administrative
provisions of the Member States governing the relations
between commercial agents and their principals.
2. For the purposes of this Directive, 'commercial agent'
shall mean a self-employed intermediary who has continuing
authority to negotiate the sale or the purchase of goods on
behalf of another person, hereinafter called the 'principal',
or to negotiate and conclude such transactions on behalf of
and in the name of that principal.
3. A commercial agent shall be understood within the meaning
of this Directive as not including in particular:
- a person who, in his capacity as an officer, is empowered
to enter into commitments binding on a company or association,
- a parter who is lawfully authorized to enter into
commitments binding on his partners,
- a receiver, a receiver and manager, a liquidator or a
trustee in bankruptcy.
1. This Directive shall not apply to:
- commercial agents whose activities are unpaid,
- commercial agents when they operate on commodity exchanges
or in the commodity market, or
- the body known is the Crown Agents for Overseas Governments
and Administrations, as set up under the Crown Agents Act
1979 in the United Kingdom, or its subsidiaries.
2. Each of the Member States shall have the right to provide
that the Directive shall not apply to those persons whose
activities as commercial agents are considered secondary by
the law of that Member State.
CHAPTER II Rights and obligations
1. In performing has activities a commercial agent must look
after his principal's interests and act dutifully and in good
2. In particular, a commercial agent must:
(a) make proper efforts to negotiate and, where appropriate,
conclude the transactions he is instructed to take care of;
(b) communicate to his principal all the necessary
information available to him;
(c) comply with reasonable instructions given by his
1. In his relations with his commercial agent a principal
must act dutifully and in good faith.
2. A principal must in particular:
(a) provide his commercial agent with the necessary
documentation relating to the goods concerned;
(b) obtain for his commercial agent the information necessary
for the performance of the agency contract, and in particular
notify the commercial agent within a reasonable period once
he anticipates that the volume of commercial transactions
will be significantly lower than that which the commercial
agent could normally have expected.
3. A principal must, in addition, inform the commercial agent
within a reasonable period of his acceptance, refusal, and of
any non-execution of a commercial transaction which the
commercial agent has procured for the principal.
The parties may not derogate from the provisions of Articles
3 and 4.
CHAPTER III Remuneration
1. In the absence of any agreement on this matter between the
parties, and without prejudice to the application of the
compulsory provisions of the Member States concerning the
level of remuneration, a commercial agent shall be entitled
to the remuneration that commercial agents appointed for the
goods forming the subject of his agency contract are
customarily allowed in the place where he carries on his
activities. If there is no such customary practice a
commercial agent shall be entitled to reasonable remuneration
taking into account all the aspects of the transaction.
2. Any part of the remuneration which varies with the number
or value of business transactions shall be deemed to be
commission within the meaning of this Directive.
3. Articles 7 to 12 shall not apply if the commercial agent
is not remunerated wholly or in part by commission.
1. A commercial agent shall be entitled to commission on
commercial transactions concluded during the period covered
by the agency contract:
(a) where the transaction has been concluded as a result of
his action; or
(b) where the transaction is concluded with a third party
whom he has previously acquired as a customer for
transactions of the same kind.
2. A commercial agent shall also be entitled to commission on
transactions concluded during the period covered by the
- either where he is entrusted with a specific geographical
area or group of customers,
- or where he has an exclusive right to a specific
geographical area or group of customers,
and where the transaction has been entered into with a
customer belonging to that area or group.
Member State shall include in their legislation one of the
possibilities referred to in the above two indents.
A commercial agent shall be entitled to commission on
commercial transactions concluded after the agency contract
(a) if the transaction is mainly attributable to the
commercial agent's efforts during the period covered by the
agency contract and if the transaction was entered into
within a reasonable period after that contract terminated; or
(b) if, in accordance with the conditions mentioned in
Article 7, the order of the third party reached the principal
or the commercial agent before the agency contract terminated.
A commercial agent shall not be entitled to the commission
referred to in Article 7, if that commission is payable,
pursuant to Article 8, to the previous commercial agent,
unless it is equitable because of the circumstances for the
commission to be shared between the commercial agents.
1. The commission shall become due as soon as and to the
extent that one of the following circumstances obtains:
(a) the principal has executed the transaction; or
(b) the principal should, according to his agreement with the
third party, have executed the transaction; or
(c) the third party has executed the transaction.
2. The commission shall become due at the latest when the
third party has executed his part of the transaction or
should have done so if the principal had executed his part of
the transaction, as he should have.
3. The commission shall be paid not later than on the last
day of the month following the quarter in which it became due.
4. Agreements to derogate from paragraphs 2 and 3 to the
detriment of the commercial agent shall not be permitted.
1. The right to commission can be extinguished only if and to
the extent that:
- it is established that the contract between the third party
and the principal will not be executed, and
- that face is due to a reason for which the principal is not
2. Any commission which the commercial agent has already
received shall be refunded if the right to it is extinguished.
3. Agreements to derogate from paragraph 1 to the detriment
of the commercial agent shall not be permitted.
1. The principal shall supply his commercial agent with a
statement of the commission due, not later than the last day
of the month following the quarter in which the commission
has become due. This statement shall set out the main
components used in calculating the amount of commission.
2. A commercial agent shall be entitled to demand that he be
provided with all the information, and in particular an
extract from the books, which is available to his principal
and which he needs in order to check the amount of the
commission due to him.
3. Agreements to derogate from paragraphs 1 and 2 to the
detriment of the commercial agent shall not be permitted.
4. This Directive shall not conflict with the internal
provisions of Member States which recognize the right of a
commercial agent to inspect a principal's books.
CHAPTER IV Conclusion and termination of the agency
1. Each party shall be entitled to receive from the other on
request a signed written document setting out the terms of
the agency contract including any terms subsequently agreed.
Waiver of this right shall not be permitted.
2. Notwithstanding paragraph 1 a Member State may provide
that an agency contract shall not be valid unless evidenced
An agency contract for a fixed period which continues to be
performed by both parties after that period has expired shall
be deemed to be converted into an agency contract for an
1. Where an agency contract is concluded for an indefinite
period either party may terminate it by notice.
2. The period of notice shall be one month for the first year
of the contract, two months for the second year commenced,
and three months for the third year commenced and subsequent
years. The parties may not agree on shorter periods of notice.
3. Member States may fix the period of notice at four months
for the fourth year of the contract,five months for the fifth
year and six months for the sixth and subsequent years. They
may decide that the parties may not agree to shorter periods.
4. If the parties agree on longer periods than those laid
down in paragraphs 2 and 3, the period of notice to be
observed by the principal must not be shorter than that to be
observed by the commercial agent.
5. Unless otherwise agreed by the parties, the end of the
period of notice must coincide with the end of a calendar
6. The provision of this Article shall apply to an agency
contract for a fixed period where it is converted under
Article 14 into an agency contract for an indefinite period,
subject to the proviso that the earlier fixed period must be
taken into account in the calculation of the period of notice.
Nothing in this Directive shall affect the application of the
law of the Member States where the latter provides for the
immediate termination of the agency contract:
(a) because of the failure of one party to carry out all or
part of his obligations;
(b) where exceptional circumstances arise.
1. Member States shall take the measures necessary to ensure
that the commercial agent is, after termination of the agency
contract, indemnified in accordance with paragraph 2 or
compensated for damage in accordance with paragraph 3.
2. (a) The commercial agent shall be entitled to an indemnity
if and to the extent that:
- he has brought the principal new customers or has
significantly increased the volume of business with existing
customers and the principal continues to derive substantial
benefits from the business with such customers, and
- the payment of this indemnity is equitable having regard to
all the circumstances and, in particular, the commission lost
by the commercial agent on the business transacted with such
customers. Member States may provide for such circumstances
also to include the application or otherwise of a restraint
of trade clause, within the meaning of Article 20;
(b) The amount of the indemnity may not exceed a figure
equivalent to an indemnity for one year calculated from the
commercial agent's average annual remuneration over the
preceding five years and if the contract goes back less than
five years the indemnity shall be calculated on the average
for the period in question;
(c) The grant of such an indemnity shall not prevent the
commercial agent from seeking damages.
3. The commercial agent shall be entitled to compensation for
the damage he suffers as a result of the termination of his
relations with the principal.
Such damage shall be deemed to occur particularly when the
termination takes place in circumstances:
- depriving the commercial agent of the commission which
proper performance of the agency contract would have procured
him whilst providing the principal with substantial benefits
linked to the commercial agent's activities,
- and/or which have not enabled the commercial agent to
amortize the costs and expenses that he had incurred for the
performance of the agency contract on the principal's advice.
4. Entitlement to the indemnity as provided for in paragraph
2 or to compensation for damage as provided for under
paragraph 3, shall also arise where the agency contract is
terminated as a result of the commercial agent's death.
5. The commercial agent shall lose his entitlement to the
indemnity in the instances provided for in paragraph 2 or to
compensation for damage in the instances provided for in
paragraph 3, if within one year following termination of the
contract he has not notified the principal that he intends
pursuing his entitlement.
6. The Commission shall submit to the Council, within eight
years following the date of notification of this Directive, a
report on the implementation of this Article, and shall if
necessary submit to it proposals for amendments.
The indemnity or compensation referred to in Article 17 shall
not be payable:
(a) where the principal has terminated the agency contract
because of default attributable to the commercial agent which
would justify immediate termination of the agency contract
under national law;
(b) where the commercial agent has terminated the agency
contract, unless such termination is justified by
circumstances attributable to the principal or on grounds of
age, infirmity or illness of the commercial agent in
consequence of which he cannot reasonably be required to
continue his activities;
(c) where, with the agreement of the principal, the
commercial agent assigns his rights and duties under the
agency contract to another person.
The parties may not derogate from Articles 17 and 18 to the
detriment of the commercial agent before the agency contract
1. For the purposes of this Directive an agreement
restricting the business activities of a commercial agent
following termination of the agency contract is hereinafter
referred to as a restraint of trade clause.
2. A restraint of trade clause shall be valid only if and to
the extent that:
(a) it is concluded in writing; and
(b) it relates to the geographical area or the group of
customers and the geographical area entrusted to the
commercial agent and to the kind of goods covered by his
agency under the contract.
3. A restraint of trade clause shall be valid for not more
than two years after termination of the agency contract.
4. This Article shall not affect provisions of national law
which impose other restrictions on the validity or
enforceability of restraint of trade clauses or which enable
the courts to reduce the obligations on the parties resulting
from such an agreement.
CHAPTER V General and final provisions
Nothing in this Directive shall require a Member State to
provide for the disclosure of information where such
disclosure would be contrary to public policy.
1. Member States shall bring into force the provisions
necessary to comply with this Directive before 1 January
1990. They shall for with inform the Commission thereof. Such
provisions shall apply at least to contracts concluded after
their entry into force. They shall apply to contracts in
operation by 1 January 1994 at the latest.
2. As from the notification of this Directive, Member States
shall communicate to the Commission the main laws,
regulations and administrative provisions which they adopt in
the field governed by this Directive.
3. However, with regard to Ireland and the United Kingdom, 1
January 1990 referred to in paragraph 1 shall be replaced by
1 January 1994.
With regard to Italy, 1 January 1990 shall be replaced by 1
January 1993 in the case of the obligations deriving from
This Directive is addressed to the Member States.
Done et Brussels, 18 December 1986.
For the Council