If online sales continue to grow, it is incumbent upon distributors utilizing sales agents and those agents themselves to fully understand the consequences of such sales on the commission of the sales agent. In fact, within the context of an online sale, unless it is prohibited for buyers located in a certain area to place online orders, the principal cannot exclude only buyers located in the geographic area delegated to his sales agent places an order online.
In such a case, in addition to the question of a any potential unfair competition by the client, the question also arises regarding the agent’s right to commission on such a sale.
This question may prove to be a source of difficulties, or even litigation between the client and the commercial agent. AUMANS AVOCATS, law firm specializing in commercial agent law, you will shed light on this potentially delicate question.
Sales through platform and clients dependent on the geographical area of the sales representative
In a classic manner, judges frequently recall that a sales agent must receive a commission on sales achieved through an online sales website with customers located within the sales agent’s geographical area provided that the latter benefits from the exclusivity within said sector.
But what about when the sales representative does not benefit from the exclusivity of the representation of the principal within their sector ?
Article L.134-6 of the Commercial Code and commercial agent commissions
Article L.134-6 of the Commercial Code, relating to the agent’s commission rights, provides:
« For any commercial transaction concluded during the term of the agency agreement, the agent has a right to the commission defined in Article L. 134-5 when it was concluded thanks to his intervention or when the transaction was concluded with a third party with whom he had previously obtained a client base for operations of the same type.
When entrusted with a geographical area or a determined group of individuals, the commercial agent is also entitled to commission for any transaction concluded during the duration of the agency contract with a person belonging to that area or that group ».
The article L.134-6 of the Commercial Code therefore provides for two types of commissions which the sales agent may rely upon.
- 1 – direct commissions: that is, commissions paid to the sales agent as regards orders he has personally placed with clients,
- 2 – indirect fees: that is, the commissions paid to the sales agent as remuneration for orders placed directly by clients belonging to the sector and/or client base entrusted to the sales agent.
Thus, in the event of online sales carried out by the principal to clients located within the geographical area assigned to the sales agent, the sales agent may in principle claim to be commissioned on these matters. And this, even though he does not benefit from exclusivity within his geographical area.
However, the provisions of Article L 134-16 of the Commercial Code are not of public order. The parties may therefore deviate from them contractually.
The parties are therefore free, at the time of conclusion of the commercial agency agreement, to exclude the agent’s commission entitlement on the indirect sales when the latter does not benefit from exclusivity within its sector.
The parties may even exclude the right to commissions of the commercial agent on sales made online by the principal notwithstanding that the commercial agent would benefit from the exclusivity of the representation of the principal within its sector.
It is therefore imperative to carefully consider these questions prior to the conclusion of a commercial agent agreement.
The AUMANS Law Firm, specializing in commercial agency law, stands at your disposal to share its expertise with you on this subject, whether during the conclusion of your agency agreement, its execution or still in the event of a dispute.
AUMANS AVOCATS (formely FOUSSAT AVOCATS): our expertise in commercial agent law at your service
With nearly thirty years of specialization in commercial agent law, and a thorough mastery of the issues related to the status of commercial agents, Jean-Charles FOUSSAT and his team advise and assist their clients throughout the lifecycle of their commercial agent contracts — including international ones — whether it involves their conclusion, qualification, execution, termination, or even their assignment.
Jean-Charles FOUSSAT and his team remain at your disposal for any further information you may need.
