The judgments rendered in 2023 by the Court of Cassation continue to define the rights and obligations of commercial agents, particularly in matters of status, compensation, and access to information necessary for calculating their commissions. They remind that this protective status is based above all on the reality of the activity carried out, independently of the contractual terminology used, such as the title of the contract.
Application of French commercial agent law to an agent located outside the European Union (Cass, com, 11 Janv. 2023, n° 21-18.6831)
On the occasion of this judgment pitting Rémy Cointreau against its Canadian agent, the Court of Cassation recalls that a foreign commercial agent working outside the European Union may benefit from French commercial agent law as long as the parties have decided to subject the contract to French law in accordance with Article 5 of the Hague Convention of 14 March 19782. This solution is unsurprising. On the occasion of this judgment, the court also recalls, in a classic manner, that the most recent jurisprudence must be taken into account, even if a reversal of jurisprudence has occurred since the conclusion of a contract. In this case, the Court of Cassation, having returned to its restrictive interpretation of the commercial agent’s power of negotiation since the conclusion of the commercial agent contract which gave rise to the dispute, it is therefore wrongly that Rémy Cointreau denied its agent the status of commercial agent based on an earlier jurisprudence of the Court of Cassation, abandoned between times by the highest court.
Termination payment: Only serious misconduct invoked in support of the contract termination may deprive the sales agent of his right to the termination payment (Cass, com, 13 avril 2023, n° 21-23.0763)
It is well established in case law that a commercial agent cannot be deprived of their end-of-contract indemnity unless the serious fault invoked by the principal actually caused the termination. The Court recalls in this case that a breach discovered after termination, not mentioned in the termination letter, cannot justify the refusal of compensation, even if it is anterior. Only a serious fault known and invoked at the time of contract termination can thus exclude the right to the indemnity provided for in Article L134-12 of the Commercial Code4.
Commercial agent status: contract qualification depends exclusively on the actual activity carried out (Cass, Com, May 17, 2023, n° 22-11.2985)
The commercial agent shall not be deprived of the benefit of the status provided for in Articles L134-1 to 134-6 of the Commercial Code solely on the basis of the title given to the contract or of an exchange of emails. The Court once again emphasizes that it is the actual activity carried out by the service provider that determines the qualification as a commercial agent. According to the now established formula of the Court of Cassation, “the application of the status of commercial agent depends neither on the expression of will by the parties in the contract nor on the denomination they have given to their agreements but on the conditions in which the activity is actually carried out.”. »
Communication to the commercial agent regarding the accounting documents of the principal for verification of his commissions: regardless of whether the agent does not have exclusivity over his sector (Cass, com, 17 May 2023, n° 22-11.4636)
The sales agent has the right to require its principal to provide him with all information, in particular an extract from its accounting documents, necessary for the verification of the commissions due to him, without this right being waived to his detriment. On the occasion of this ruling, recalling this principle, the Court further points out that the principal cannot limit this right of the sales agent on the grounds that it would not have an exclusive right over its geographical area.
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- https://www.legifrance.gouv.fr/juri/id/JURITEXT000046990213 – Cour de cassation, civil chamber, commercial section, 11 January 2023, 21-18.683, Published in the bulletin ↩︎
- https://www.hcch.net/fr/instruments/conventions/full-text/?cid=89 – Convention of March 14, 1978 on the Law Applicable to Contracts of Agency and Representation ↩︎
- https://www.legifrance.gouv.fr/juri/id/JURITEXT000047482809?init=true&page=1&query=21-23.076&searchField=ALL&tab_selection=all – Court of Cassation, Civil Chamber, Commercial Section, April 13, 2023, 21-23.076, Unpublished ↩︎
- https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000006220456 – Commercial Code, Article L134-12 ↩︎
- https://www.legifrance.gouv.fr/juri/id/JURITEXT000047635620 – Court of Cassation, Civil Chamber, Commercial Section, May 17, 2023, 22-11.298, Unpublished ↩︎
- https://www.legifrance.gouv.fr/juri/id/JURITEXT000047635616?init=true&page=1&query=22-11.463&searchField=ALL&tab_selection=all – Court of Cassation, Civil Chamber, Commercial Section, May 17, 2023, 22-11.463, Unpublished ↩︎
