8. 3. 78 Official  Journal  of the European  Communities No C 59/31 
Opinion  on the proposal  for a Council  Directive  to coordinate  the laws  of the Member 
States  relating  to (self-employed)  commercial  agents 
The text  referred  to the Committee  has been  published  in Official  Journal  of the European 
Communities  No  C 13 of 18 January  1977,  page  2. 
A. LEGAL  BASIS  FOR  THE  OPINION 
On 11 January  1977  the Council  referred  the abovementioned  proposal  to the Economic 
and Social  Committee  in accordance  with  Articles  57, 100  and  198  of the Treaty  establish-
ing the European  Economic  Community. 
B. OPINION  OF THE  ECONOMIC  AND  SOCIAL  COMMITTEE 
The Economic  and  Social  Committee  prepared  its opinion  on the above  matter  at its 153rd 
plenary  session  held  in Brussels  on 23 and  24 November  1977. 
The full text  of the opinion  is as follows: 
THE  ECONOMIC  AND  SOCIAL  COMMITTEE, 
Having  regard  to the Treaty  establishing  the European 
Economic  Community,  and  in particular  Articles  57, 
100 and  198  thereof, 
Having  regard  to the request  for an opinion  made  by 
the Council  of the  European  Communities  on 11 
January  1977, 
Having  regard  to the decision  taken  by its Bureau  on 25 
January  1977  instructing  the  Section  for  Industry, 
Commerce,  Crafts  and Services  to prepare  a draft  opin-
ion and  a report  on the matter, 
Having  regard  to the opinion  issued  by that  Section  at 
its meeting  on 9 November  1977, 
Having  regard  to the report  submitted  by the rappor-
teur,  Mr Purpura, 
Having  regard  to the discussions  at its 153  rd plenary 
session  held  on 23 and  24 November  1977  (meeting  of 
24 November), 
Whereas  the self-employed  commercial  agent's  right  to 
freedom  of establishment  and  freedom  to provide  ser-
vices  needs  to be effectively  implemented; 
Whereas  harmonization  of national  laws  on the com-
mercial  agency  relationship  would  be beneficial; 
Whereas  self-employed  commercial  agents  working  in 
the various  Member  States  of the  Community  need more  effective  legal  protection  in the course  of their 
agency  work,  such  protection  being  based  on principles 
of justice  and equity, 
HAS  ADOPTED  THE  FOLLOWING  OPINION 
with 16 votes  against  and  four  abstentions: 
The Committee  approves  the draft  Directive,  subject  to 
the following  general  comments,  specific  comments  and 
proposed  amendments. 
A. GENERAL  COMMENTS 
1.1. Harmonization  of the law  of commercial  agents  is 
a vital  adjunct  to the right  of establishment.  The  right  of 
establishment  itself  is governed  by Council  Directive 
64/224/EEC  of 25 February  1964,  a Directive  endorsed 
by the Committee  in one  of its opinions.  Disparities 
between  national  laws  in fact  not only  hamper  the in-
terpenetration  of markets  and  stand  in the way  of free 
competition  between  industrial  and  commercial  firms  in 
different  Member  States  (and  frequently  between  firms 
in one  and  the same  State).  They  also  make  it more  dif-
ficult,  in practice  if not in law,  for the commercial  agent 
to establish  himself  or provide  services  in a country 
other  than  his own. 
1.2. The  Directive  seeks  to coordinate  the legal  rules 
governing  the activities  of commercial  agents  in most 
No C 59/32 Official  Journal  of the European  Communities 8. 3. 78 
Member  States.  But if one looks  at the spirit  and practi-
cal implications  of the Directive,  then  'coordination'  is 
really  tantamount  to 'harmonization'  because,,  once  the 
provisions  of the Community  Directive  have  been  in-
corporated  into  national  law,  they  will  result  in a set of 
uniform  rules  regulating  the activities  and profession  of 
the commercial  agent. 
1.3. Harmonization  would  appear  to be not only  useful 
but also  necessary  for the legal  protection  of the com-
mercial  agent.  For  although  the latter  is autonomous 
and carries  out  his  activities  independently,  he can 
nevertheless  find  himself  in a weak  position  (in 
economic  or other  respects)  vis-a-vis  the  principal 
whether  the principal's  firm  belongs  to the industrial, 
commercial,  or even  small-business  sector.  To rectify 
this situation,  it is necessary  to draw  up a set of legal 
rules  whereby  a balance  can be struck  ab initio  between 
the interests  of the two  contracting  parties. 
1.4. In affording  legal  protection  to the  commercial 
agent  in his dealings  with  the  principal,  a sensible, 
equitable  balance  must  be maintained  between  the in-
terests,  obligations  and  reciprocal  rights  of the two  par-
ties on the basis  of good  faith  and  in the common  in-
terest.  The  agent,  by virtue  of his status  as a self-em-
ployed  person,  cannot  obtain  the social  security  benefits 
enjoyed  by salary  or wage-earners,  but  he still  needs 
legal  protection  in order  to consolidate  his indepen-
dence,  allow  him  to pursue  his professional  activities 
and provide  him  with  a basic  minimum  of social  se-
curity  cover. 
1.5. The  Committee  recognizes  that  in order  to achieve 
concrete  results  through  the harmonization  of national 
legislation  and to provide  commercial  agents  in the EEC 
with  a minimum  level  of uniform  protection,  mandatory 
rules  should  be drawn  up. These  should  cover  the sub-
stantive  elements  of the agency  relationship  and  be ap-
plicable  to both  principal  and  agent.  The  Committee 
feels  that  although  a number  of fundamental  aspects  of 
the agency  relationship  must  be regulated  by a core  of 
binding  rules,  agents  and principals  should  be at liberty 
in respect  of other,  non-essential  aspects,  to regulate 
their  relationship  with  each  other  as they  see fit. 
1.6. Finally,  die Committee  asks  the Commission  to 
push  on faster  with  the preparation  of a Directive  on 
the conditions  of employment  of dependent  workers 
(i.e. commercial  travellers)  as referred  to in Article  3 of 
Directive  64/224/EEC.  A large  number  of people  be-
long to this  category,  and they  require  Community-level 
protection. 
B. SPECIFIC  COMMENTS 
2.1. Taking  these  considerations  as a starting  point  and 
keeping  the aims  of the Directive  in mind,  the Commit-tee will  now  examine  the various  provisions  contained 
in the seven  chapters  of the proposal. 
2.2. To further  clarify  the aims  of the Directive,  the 
Committee  proposes  that  the  penultimate  recital  be 
amended  to read  as follows: 
'Whereas,  in this  matter,  the  legal  relationship 
between  commercial  agent  and  principal  must  be 
given  priority  of treatment  over  that  of the other 
classes  of intermediaries  listed  in Article  3 of Direc-
tive 64/224/EEC.' 
2.3. Scope  of the proposed  Directive 
2.3.1.  The  definition  of the commercial  agent  in Article 
2 is of fundamental  importance  in delimiting  the scope 
of the  Directive.  The  Committee  proposes,  however, 
that the Article  be remodelled  as follows: 
'For the purpose  of this  Directive,  the expression 
"commercial  agent"  means  a self-employed  inter-
mediary  who  has continuing  authority  for a fixed  or 
indeterminate  period,  and  in a specific  region  or 
area,  to negotiate  and/or  conclude  an unlimited 
number  of commercial  transactions  in the name  and 
for account  of another  person  (hereinafter  called 
"the principal").' 
2.3.2.  The  Committee  proposes  that  Article  3 (inter-
mediaries  falling  outside  the Directive)  be amended  as 
follows: 
(a) the fourth  indent  to read: 
'4. — to intermediaries  who  carry  on their  ac-
tivities  in the insurance  field  or on behalf  of 
credit  institutions.' 
(b) the addition  of a fifth  indent  as follows: 
'5. — to intermediaries  who  work  for  firms  en-
gaged  in mail-order  or doorstep  selling.' 
2.3.3.  The  explanatory  memorandum  states  that  the 
Commission  intends  to submit  a draft  Directive  coor-
dinating  the laws  of the Member  States  on agents  work-
ing in the field  of insurance  and  on behalf  of credit  in-
stitutions.  The  Committee,  pointing  out that  the Coun-
cil has  already  adopted  Directive  77/92/EEC  of 13 
December  1976  on the freedom  of establishment  and 
freedom  to provide  services  of insurance  agents,  urges 
that studies  be completed  and  that  the new  draft  Direc-
tive be submitted  as soon  as possible. 
2.3.4.  Article  4 gives  Member  States  the right  not  to 
apply  certain  legal  provisions  of the agency  contract  to 
persons  who  act as commercial  agents  'by way  of sec-
8. 3. 78 Official  Journal  of the European  Communities No C 59/33 
ondary  activity  only'.  It also  empowers  Member  States 
to apply  the Directive  to other  persons  who  can  'be 
assimilated  to commercial  agents'  (e.g.  women  who 
collect  bulk  orders  for mail-order  establishments  or who 
organize  collective  sales  in their  own  homes). 
2.3.5.  The  Committee  considers  that  Article  4 gives 
Member  States  too much  latitude  and  this  might  make 
it difficult  to define  the scope  of the Directive  precisely. 
Article  4 should,  therefore,  be deleted.  The  proposed 
fifth  indent  to Article  3 reinforces  the case  for deletion. 
Mail-order  agents  account  for the bulk  of the category 
referred  to in Article  4 (1). 
2.3.6.  The  Committee  thinks  that  a 'register'  or 'list'  or 
'roll'  should  be drawn  up to ensure  certainty  as to the 
law in respect  of professional  qualifications.  Article  4 
should,  therefore,  be replaced  by the following: 
'Member  States  shall  determine,  within  the 
framework  of the Directive,  the requirements  which 
the commercial  agent  must  fulfil  in order  to perform 
his activities.  Member  States  shall  keep  up-to-date 
registers  or lists  of agentsr  such  registers  or lists 
being  lodged  with  an administrative  or legal  auth-
ority  competent  in the field.  Registration  shall  be 
compulsory  if the agent  is to be able  to carry  on his 
professional  activities.' 
2.4. Rights  and  duties  of the parties 
2.4.1.  Article  5 defines  the duties  of the  commercial 
agent.  The  Committee  proposes  the following  amend-
ments  and additions. 
2.4.2.  In Articles  5 (1) and  5 (2) (d) the expression 
'sound  businessman'  should  be replaced  by the expres-
sion 'sound  professional'.  The  change  should  be made 
in all languages  except  Italian  where  the term  'buon 
padre  di famiglia'  would  be more  suitable. 
2.4.3.  The  following  changes  should  be made  to Article 
5(2): 
(a) A new  subparagraph  (a) should  be inserted  as fol-
lows: 
'(a) take  all necessary  steps  to further  the success  of 
the principal's  commercial  transactions;'. 
(b) In new  subparagraph  (b) (formerly  subparagraph 
(a)) (information  which  the agent  is obliged  to pass 
on to the principal)  the words  'at all times'  should 
be deleted  and  replaced  by the word  'promptly'. 
(c) In new  subparagraph  (d) (former  subparagraph  (c)) 
which  obliges  an agent  to keep  'proper  accounts 
relating  to the accounts  receivable  and  assets  of his principal',  'contabilita'  in the  Italian  version  (ac-
countancy)  should  be replaced  by the words  'tenere-
regolarmente  i conti'  (keep  proper  accounts). 
(d) The  wording  of new  subparagraphs  (c),  (e) and  (f) 
former  (b), (d) and  (e)) should  remain  unchaged. 
2.4.4.  The  phrase  'for  whose  activities  he shall  be ac-
countable  to the  principal  in the  event  of breaches' 
should  be added  to Article  5 (3). This  is only  fair and in 
keeping  with  standard  sub-agency  practice. 
2.4.5.  Article  6 deals  with  trade  secrecy.  The  Commit-
tee proposes  deletion  of the final  clause,  i.e. 'unless  he 
proves  that  his doing  so is consistent  with  the principles 
of a sound  businessman'.  This  deletion  makes  clear  and 
reinforces  the obligation  incumbent  upon  the agent. 
2.4.6.  Article  7 is concerned  with  the activities  of the 
agent  on own  account.  The  Committee  feels  that  it 
would  be better  to rule  out the possibility  of a commer-
cial agent  working  simultaneously  in a self-employed 
and employee  capacity.  This  is to avoid  the difficulties 
that might  arise  in such  an event  and  to ensure  com-
patibility  with  Article  2 which  states  that  the Directive 
applies  to self-employed  commercial  agents. 
To this  end the Committee  proposes  that: 
(a) the words  'or work  for an employer  as a salaried  or 
wage-earning  representative',  at the  end  of para-
graph  1, should  be deleted; 
(b) the words  'or as an employee'  at the end  of para-
graph  3 should  be deleted. 
2.4.7.  The  Committee  agrees  with  the  Commission's 
proposal  on damages  in the cases  described  in Article  8 
but proposes  that  the following  words  be added  to the 
end of paragraph  1: 'The  agent  must  inform  the princi-
pal of any  legal  proceedings  taken  against  him.' 
2.4.8.  The  Committee  is satisfied  with  the wording  of 
Article  10, which  lays  down  the obligations  of the prin-
cipal.  Nevertheless,  it proposes  that  paragraph  2 be 
worded,  as follows: 
'2. Without  prejudice  to the general  duty  specified 
in paragraph  1, the principal  shall  make  available  to 
the agent  in suitable  quantity  such  materials,  infor-
mation  and  documents  as are relevant  to his ac-
tivities.  He shall  in particular: 
(a) supply  the  agent  with  samples,  designs,  price 
lists,  printed  advertising  material,  general  condi-
tions  governing  the sale,  purchase  and  supply  of 
No C 59/34 Official  Journal  of the European  Communities 8. 3. 78 
services,  and all other  documents  relating  to the 
goods  and  services  for which  he has  been  ap-
pointed  agent; 
(b) provide  the commercial  agent  with  all informa-
tion which  is requisite  for the performance  of 
the contract  particularly  as regards  the current 
and prospective  production  of goods  handled  by 
the agent,  and  inform  the agent  without  delay 
when  he foresees  that  the volume  of commercial 
transactions  that  he will  be able  to execute  will 
be considerably  lower  than  the  commercial 
agent  could  normally  expect; 
(c) (unchanged).' 
2.5. Remuneration  and  reimbursement  of expenses 
2.5.1.  Article  11 concerns  the  remuneration  of the 
commercial  agent.  The  Committee  endorses  the Com-
mission's  proposals,  subject  to one  or two  minor 
changes  to paragraph  3, which  should  now  read: 
'Commercial  agency  contracts  which  exclude  the 
agent's  right  to be remunerated  in accordance  with 
paragraph  1 above  shall  be void.' 
2.5.2.  In connection  with  Article  12 (commission  dur-
ing the currency  of the contract),  the Committee  pro-
poses  that: 
— paragraph  1 (b) should  now  read:  '(b)  where  the 
transaction  is entered  into  with  a third  party  whom 
the agent  had  already  procured  for similar  transac-
tions', 
— paragraph  1 (c) should  read:  'where  the commercial 
agent  is appointed  exclusively  to cover  a specific 
geographical  area  or a specific  group  of customers 
and the transaction  is entered  into...', 
— paragraph  2 should  read: 
'The commercial  agent  shall  not be entitled  to the 
commission  referred  to in paragraph  (a) if the prin-
cipal  has reserved  the right  to directly  handle  certain 
transactions  with  specific  customers  or in specific 
sectors  or (b) by virtue  of Article  13 that  com-
mission  is payable  to another  agent'. 
2.5.3.  With  regard  to Article  13 (entitlement  to com-
mission  after  expiry  of the  contract),  the Committee 
proposes: 
(a) that  the last part  of Article  13 (b) be reworded: 
'... a "reasonable  period"  being  one  which  is pro-
portionate  t(i the type  and volume  of the transaction in question  and  which,  in default  of an agreement 
between  the principal  and  the agent,  will  be worked 
out on the basis  of national  and  local  commercial 
practice  and  in accordance  with  the principles  of 
equity.'; 
(b) that  Article  13 should  contain  a second  paragraph 
reading  as follows: 
'2. For  the agent  to be entitled  to commission  under 
the conditions  laid  down  in the first  paragraph,  he 
must  be engaged,  at the request  of the principal,  in 
the full,  normal  execution  of the  transaction  or 
transactions  in hand  at the moment  the agency  rela-
tionship  is terminated.' 
2.5.4.  The  Committee  proposes  that  Article  15 (3) be 
amended  to read  as follows: 
'3. If the principal  and  the third  party  fail  to per-
form  their  part  of the transaction  in full...' 
2.5.5.  With  regard  to Article  17 (calculation  of com-
mission),  the Committee  recommends  that  the commis-
sion should,  unless  otherwise  agreed,  be calculated  on 
the net amount  of the invoice. 
2.5.6.  Article  18 states  that  the commercial  agent  shall 
be entitled  to be supplied  with  extracts  from  the copies 
of the principal's  books  of account  — together  with 
explanations  thereof  — to enable  him  to check  the 
amounts  of commission  to which  he is entitled. 
2.5.7.  In order  to protect  both  the principal  and  the 
agent,  the Committee  proposes  that  Article  18 be re-
worded  as follows: 
'1. The  commercial  agent  may  ask the principal  for 
information  and  explanations  to enable  him  to 
check  the correctness  of the commission  to which  he 
is entitled. 
2. If the agent  has  grounds  for believing  that  the 
information  on commission  owing  or paid  to him  is 
inaccurate  or incomplete,  he shall  be entitled  to 
examine  the  books  of account  and  accounting 
documents.  This  right  of access  shall  be accorded  — 
at the discretion  of the principal  — either  to the 
agent  himself  or to some  person  designated  by the 
agent  (being  a person  normally  qualified  for that 
purpose  in accordance  with  the national  law  appli-
cable  in the State  where  the books  of account  and 
accounting  documents  are kept). 
3. This  right  may  be exercised  solely  to the extent 
necessary  for checking  the correctness  or complete-
ness of the statement  of commission,  and shall  in no 
way affect  the obligation  on the person  carrying  out 
the examination  not  to divulge  commercial  or in-
dustrial  secrets.' 
8. 3. 78 Official  Journal  of the European  Communities No C 59/35 
2.5.8.  Article  19 provides  for payment  of a guaranteed 
minimum  level  of commission  where  the principal  has 
made  no use of the agent's  services  or has used  them  to 
a lesser  extent  than  expected. 
2.5.9.  Article  19 raises  considerable  problems  of in-
terpretation.  For  example,  to award  agents  a right  to 
commission  in respect  of transactions  which  have  not 
been  performed  could  give  rise  to malpractices  and 
disputes.  It is also  difficult  to calculate  the exact  ex-
penses  referred  to in paragraph  3. Finally,  use of the 
term  'remuneration'  in paragraph  1 is debatable. 
2.5.10.  The  Committee  calls  on the  Commission  to 
re-examine  Article  19 in the light  of these  comments. 
2.5.11.  The  Committee  would  like  to see Article  20 
(reimbursement  of expenses)  worded  as follows  : 
'1. The  commercial  agent  shall  be entitled  to reim-
bursement  of expenses  incurred  in the usual  course 
of his activities  only  where  the parties  have  agreed 
that this  shall  be the case. 
2. Where  the agent  incurs  expenses  in connection 
with special  or unusual  activities  undertaken  on the 
express  instructions  of the  principal,  he shall  be 
entitled  to be reimbursed.' 
2.6. 'Del  credere' 
2.6.1.  Article  21 contains  a number  of provisions  gov-
erning,  del credere  agreements,  i.e. agreements  under 
which  the  commercial  agent  guarantees  his principal 
that a third  party  will  pay  for the goods  or services 
which  the agent  has negotiated. 
2.6.2.  The  Committee  considers  that  only  paragraphs 
1 and  3 of Article  21 should  be kept.  Paragraphs  2 and 
4 should  be deleted. 2.7.2.  The  Committee  does  not approve  Article  22 and 
requests  that  it be deleted. 
2.8. Making  and  cessation  of contract 
2.8.1.  Articles  23 and  24 entitle  the commercial  agent 
and the  principal  to receive  from  the other  a signed 
document  setting  out the terms  of the contract.  Neither 
party  may  waive  this  right. 
2.8.2.  Whilst  accepting  Articles  24,  the  Committee 
proposes  that  Article  23 be reworded  as follows: 
'1. Commercial  agency  contracts  shall  normally  be 
drawn  up in writing. 
2. Where  this  is not the case,  each  party  shall  be* 
entitled  to receive  from  the other  a signed  document 
setting  out the terms  of the contract  and  any  terms 
subsequently  agreed.  Any  purported  waiver  of this 
right  shall  be invalid.' 
2.8.3.  Article  26, deals  with  the period  of notice  re-
quired  to terminate  a contract.  In view  of standard 
practices  in this area  in the Member  States,  the Commit-
tee feels  that  Article  26 should  read: 
'1. (unchanged). 
2. During  the first  year  of the contract  the notice 
shall  be of not less than  one month.  Where  the con-
tract  does  not exceed  three  years,  minimum  notice 
shall  be two  months,  and  where  it exceeds  three 
years,  the minimum  notice  shall  be three  months. 
Notice  shall  begin  on the first  day  of a calendar 
month.' 
2.8.4.  Under  Article  27, a contract  may  be terminated 
(i) when  one  of the two  parties  commits  a fault  or (ii) 
where  some  circumstance  arises  which  makes  it impos-
sible  to perform  the contract  or which  seriously  pre-
judices  its performance. 
2.7. Bankruptcy  or winding-up  of principal 
2.7.1.  Article  22 is designed  to protect  the commercial 
agent  in cases  where  bankruptcy  or winding  up proce-
dures  have  been  opened  in respect  of the principal,  or 
where  there  is an arrangement,  composition  or other 
similar  procedure  in progress  with  the principal's  cre-
ditors.  To this  end it confers  on commercial  agents  the 
same  privileges  as are  enjoyed  by employees  in the 
matter  of claims  on the principal's  assets.  In relation  to 
sums  owing  to the agent  for remuneration  and  reim-
bursement  of expenses,  the Article  limits  the amount  of 
income  for which  execution  can  issue  where  third  par-
ties obtain  an order  for execution  against  the principal. 2.8.5.  The  Committee  considers  that  Article  27, which 
is compatible  with  one of the basic  principles  of the law 
on liability,  should  be worded  as follows: 
'1. Either  party  may  terminate  the contract  at any 
time: 
(a) Where  the  other  party  has  in relation  to the 
contract  committed  a fault  or a series  of succes-
sive repeated  errors  such  that  the  party  who 
terminates  . . . 
2. (unchanged). 
3. In the event  of termination  due  to one  of the 
contracting  parties  committing  a fault,  the offending 
party  shall  compensate  the  other  party  for  any 
damage  caused  by such  fault.' 
No C 59/36 Official  Journal  of the European  Communities 8. 3. 78 
2.8.6.  Entitling  commercial  agents  to a lump-sum 
indemnity  where  the  principal  terminates  a contract 
before  the end  of the period  of notice,  or the agreed 
period  of duration,  puts  the agent  in the same  position 
as an employee.  The  status  of the commercial  agent  as a 
self-employed  businessman  should  be retained.  Article 
28 (2) should  therefore  be deleted. 
2.8.7.  Article  29 requires  the agent  to return  documents 
and materials  to the  principal  upon  cessation  of the 
contract.  It also  gives  the agent  a lien  on the movables 
and other  property  of the  principal  as security  for 
commission  and  expenses. 
2.8.8.  The  Committee  considers  that  paragraph  2 
should  be reworded  as follows: 
'2. To  secure  his rights  as regards  remuneration 
and reimbursement  of expenses,  the  commercial 
agent  may,  even  after  cessation  of the contract,  re-
tain such  movables  and  other  property  of the prin-
cipal  as are held  by him  pursuant  to the contract; 
the value  of movables  and  other  property  held  by 
the agent  shall  not however  exceed  the amount  of 
the remuneration  and  expenses  owed  to him/ 
2.8.9.  Article  30, one  of the key  provisions  of the Di-
rective,  deals  with  the 'goodwill  indemnity'  due  to the 
agent  or his heirs  after  cessation  of the contract.  A simi-
lar provision  exists  in French,  Italian,  Dutch  and  Ger-
man law  and  in the Benelux  Convention. 
2.8.10.  The  Committee  is happy  that  the Commission 
has inserted  a 'goodwill  indemnity'  clause  in the Direc-
tive. For the sake  of clarity  and  precision,  however,  the 
Committee  considers  that  Article  30 should  be worded 
as follows: 
'1. After  cessation  of the contract  the commercial 
agent  or his heirs  shall  be entitled  to receive  from 
the principal  a goodwill  indemnity  ... 
2. (unchanged). 
3. The  amount  of the indemnity  shall  not exceed 
the average  annual  remuneration  calculated  .... (rest 
unchanged). 
4. Where  the  agent  terminates  the  contract  by 
notice,  the period  of which  is consistent  with  the 
period  of notice  required  by the contract  or by law, 
he shall  be entitled  to a goodwill  indemnity  not 
exceeding  ... (rest  unchanged). 
5. (unchanged). 
6. (unchanged).' 
2.8.11.  Article  32 deals  with  agreements  'restricting 
competition'.  It defines  the aim  and  scope  of such 
agreements  and  provides  for payment  of an indemnity 
to the agent. 2.8.12.  The  Committee  proposes  that  a new  paragraph 
7 be added  as follows: 
'7. The  principal  shall  be entitled  to damages  in the 
event  of the  agent  not  abiding  by the agreement 
restricting  competition.' 
2.9. General  and  final  provisions 
2.9.1.  Article  33 allows  certain  substantive  provisions 
of the Directive  to be departed  from  when  the agent  is a 
company  whose  most  recent  annual  accounts  show  it to 
have  a paid-up  capital  exceeding  100  000  European 
units  of account. 
2.9.2.  The  Committee  wonders  whether  the criterion  of 
'paid-up  capital'  referred  to in Article  33 is appro-
priate.  Would  it not  be preferable  to use  a different 
criterion,  e.g.  'turnover'?  The  Committee  calls  on the 
Commission  to re-examine  this  question. 
2.9.3.  Article  34 stipulates  that  claims  which  arise 
under  provisions  of the Directive  'shall  be subject  to a 
limitation  period  of four  years  .. . starting  from  the end 
of the year  during  which  the claim  arose'  (paragraph  1). 
For claims  arising  during  the past  10 years  of the con-
tract  the limitation  period  'shall  begin  to run from  the 
end of the year  during  which  the contract  came  to an 
end' (paragraph  2). 
2.9.4.  Having  looked  at the various  sides  of the ques-
tion and  having  observed  that  legislation  on the matter 
differs  widely  from  Member  State  to Member  State,  the 
Committee  proposes  that  paragraph  2 be deleted  and 
that the limitation  period  be four  (or five)  years  in all 
cases. 
2.9.5.  The  Committee  would  like  to take  this  oppor-
tunity  to point  out that  harmonization  is necessary  in 
respect  of limitation  periods  on the claims  of not only 
commercial  agents  but also  of many  other  commercial 
categories  as well.  The  Committee  therefore  calls  upon 
the Commission  to investigate  the  harmonization  of 
national  laws  concerning  specific  commercial  categories 
— with  particular  reference  to commercial  transactions 
— and  to put forward  appropriate  proposals. 
2.9.6.  Article  35 is fundamental  to the whole  Directive 
in that,  in referring  to individual  Articles,  it specifies  the 
extent  and  limits  of the parties'  freedom  to manoeuvre 
within  the agency  relationship.  The  Article  thus  declares 
void all exemption  clauses  whereby  the parties  derogate, 
to the detriment  of the agent,  from  certain  Articles  and 
paragraphs  listed  in paragraph  1. The  contracting  par-
ties are thus  required  to comply  with  the 'mandatory 
provisions'  in the Directive. 
8. 3. 78 Official  Journal  of the European  Communities No C 59/37 
2.9.7.  The  Committee  agrees  with  the  Commission 
proposal  and  feels  that  if certain  fundamental  provi-
sions  are not mandatory,  the objectives  of the Directive 
will be completely  frustrated  and  the document  worth-
less. Indeed,  the  harmonization  of national  laws  be-
comes  impossible  if certain  aspects  of the agency  rela-
tionship  are left to the discretion  of the contracting  par-
ties. Moreover,  failure  to include  a mandatory  element 
will jeopardize  the Directive's  other  main  aim,  i.e. that 
of affording  commercial  agents  in the EEC  greater  legal 
and economic  protection. 
2.9.8.  The  Committee  is convinced  that  Article  35, 
which  limits  the possibility  of derogating  from  certain 
basic  agency  contract  provisions,  must  remain  in the 
Directive. 
2.9.9.  The  Committee  nevertheless  feels  that  some  of 
the provisions  referred  to need  not  be binding.  These 
are: 
— the  second  paragraph  of Article  13, 
— Article  14. 
2.9.10.  The  Committee  proposes  that  the reference  to 
Article  21 (4) in Article  35 (2) be deleted  and  takes 
Article  35 (2) to mean  that  it is the parties  to the con-
tract  that  have  the right  to derogate  from  the compul-
sory provisions  specified  in Article  35 (1). 
2.9.11.  Article  36 provides  that  the Member  States,  the 
addressees  of the Directive  under  Article  37 shall,  before 
1 January  1980,  adopt  and  publish  the  provisions 
necessary  to comply  with  this  Directive  and  shall  bring 
these  provisions  into  force  from  1 July  1980. 
2.9.12.  The  Committee  agrees  with  the Commission's 
proposal  and  leaves  it to the  Council  of Ministers  to 
decide  whether  or not to postpone  entry  into  force  from 
1 July  1980  to 1 January  1981. 2.9.13.  The  Committee  is worried  about  what  will 
happen  to existing  commercial  agency  contracts  when 
the new  harmonized  laws  come  into  force.  A new 
Article  should  therefore  be inserted  after  Article  36, 
reading  as follows: 
'Article  36a 
Agency  contracts  running  when  the national  provi-
sions  referred  to in the  previous  paragraph  take 
effect,  shall  remain  valid  for not  more  than  three 
years.' 
2.10.  Social  security  for commercial  agents 
2.10.1.  The  Committee  would  now  like  to take  a look 
at social  security  for self-employed  commercial  agents. 
2.10.2.  The  Committee  would  appeal  to the Commis-
sion and  the  Council  to consider  coordinating  the 
Member  States'  laws  on social  security  for  the  self-
employed  and  particularly  commercial  agents. 
2.11.  Conclusions 
2.11.1.  As is clear  from  the Committee's  close  scrutiny 
of both  individual  Articles  and  the Directive  as a whole 
— and  from  its observations  and  concrete  proposals  — 
the introduction  of uniform  legal  safeguards  for com-
mercial  agents  is regarded  as a matter  of great  import-
ance. 
2.11.2.  On  the legal  front,  the draft  Directive  is a re-
markable  attempt  at Community  codification;  and  at a 
social  and  political  level  it is a major  practical  step 
towards  eliminating  disparities  and  conflicts  between 
the laws  of the nine  Member  States,  thereby  bringing 
about  a common  market. 
Done  at Brussels,  24 November  1977. 
The Chairman 
of the Economic  and  Social  Committee 
Basil  de FERRANTI 
No C 59/38 Official  Journal  of the European  Communities 8. 3. 78 
ANNEX 
to the opinion  of the Economic  and Social  Committee 
The following  amendment  was  rejected  during  the discussions: 
Delete  the entire  opinion  from  'Whereas  the self-employed  commercial  agent's  right  to freedom..and 
substitute: 
"Whereas  Article  189  of the Treaty  states  that  a Directive  shall  be binding  as to the result  to be 
achieved  upon  each  Member  State  to which  it is addressed  but shall  leave  to the national  authorities 
the choice  of form  and methods; 
Whereas  the proposed  Directive  attempts  to provide  a model  contract  containing  complex,  detailed 
and mandatory  rules,  regulating  the legal  relationship  between  commercial  agents  and their  princi-
pals,  leaving  Member  States  little  choice  as to form  and methods; 
Whereas  such  complex,  detailed  and  mandatory  rules  are inappropriate  for many  of the diversified 
principal  agent  relationships  throughout  the Community; 
Whereas  the hypothesis  on which  the draft  Directive  is based,  namely  that  agents  have  unequal 
bargaining  power  as compared  with  their  principles,  is, for some  Member  States,  a mere  allegation; 
Whereas  the definition  of "commercial  agent"  is too vague  to be of much  practical  use in helping 
Member  States  to formulate  precise  law, 
HAS  ISSUED  THE  FOLLOWING  OPINION: 
The proposal  for a Council  Directive  to coordinate  the laws  of Member  States  relating  to (self-em-
ployed)  commercial  agents,  containing  so many  detailed  and mandatory  rules  is inconsistent  with  the 
status  of a Directive  as an instrument  of Community  law.  The  Commission  should  be asked  to study 
the possibility  of achieving  the objectives  they  seek  to obtain,  either  by introducing  a code  of prac-
tice throughout  the Community  which  the parties  could  expressly  choose  to govern  their  relation-
ships  if they  so wished,  and  which  in the opinion  of the Economic  and  Social  Committee  would 
soon  have  universal  acceptance  as the recognized  system  of good  practice,  or, harmonize  the law on 
self-employed  agents  throughout  the Community  while  permitting  parties  to derogate  from  various 
substantive  provisions.' 
Justification 
Evident  from  terms  of amendment. 
Voting 
For: 17, against:  52, abstentions:  5.