No C 13/2 Official  Journal  of the European  Communities 18. 1. 77 
II 
(Preparatory  Acts) 
COMMISSION 
Proposal  for a Council  Directive  to coordinate  the laws  of the Member  States  relating  to 
(self-employed)  commercial  agents 
(Submitted  by the Commission  to the Council  on 17 December  1976) 
THE  COUNCIL  OF  THE  EUROPEAN  COMMUNITIES, 
Having  regard  to  the  Treaty  establishing  the 
European  Economic  Community,  and  in particular 
Articles  57 (2) and  100  thereof, 
Having  regard  to the proposal  from  the Commission, 
Having  regard  to the  opinion  of the  European 
Parliament, 
Having  regard  to the  opinion  of the  Economic  and 
Social  Committee, 
Whereas  the restrictions  on freedom  of establishment 
and freedom  to provide  services  in respect  of 
activities  of intermediaries  in commerce,  industry  and 
small  craft  industries  were  abolished  by Council 
Directive  64/224/EEC  of 25 February  1964  (x); 
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  can  be 
detrimental  both  to the  protection  available  to 
commercial  agents  vis-a-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 
commercial  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 those  rules; 
Whereas  in this  matter  the legal  relationship  between 
commercial  agent  and  principal  must  be  given 
priority  of treatment; 
Whereas  in many  cases  commercial  agents  are  as a 
rule,  though  in differing  degrees,  economically  in a 
weak  position  vis-a-vis  their  principals,  and  it is 
accordingly  appropriate  that  in harmonizing  and 
improving  the  minimum  rules  in the  laws  of the 
Member  States  relating  to commercial  agents  there  be 
alignment  upon  the  principles  set out  in Article  117 
of the EEC  Treaty, 
HAS  ADOPTED  THIS  DIRECTIVE: 
CHAPTER  I 
Scope  of Application 
Article  1 
(x) OJ  No 56, 4. 4. 1964.  o. 869/64. 1. The  harmonization  measures  prescribed  by this 
Directive  apply  to  the  laws,  regulations  and 
18.1.  77 Official  Journal  of the  European  Communities No C 13/3 
administrative  provisions  of the  Member  States 
governing  the  relations  between  self-employed 
commercial  agents  and  their  principals. 
2. National  laws  and  trade  usages  which  are  not 
inconsistent  with  the provisions  of this  Directive  shall 
continue  to apply  to the  relations  referred  to in 
paragraph  1. 
Article  2 
For the  purposes  of this  Directive  the  expression 
'commercial  agent'  means  a  self-employed 
intermediary  who  has  continuing  authority  for  a 
fixed  or indeterminate  period  to negotiate  and/or  to 
conclude  an  unlimited  number  of  commercial 
transactions  in the name  and  for account  of another 
person  (who  is hereinafter  called  'the  principal'). 
Article  3 
This  Directive  does  not apply: 
— to intermediaries  who  are wage  or salary  earning 
employees  within  the  meaning  of  Directive 
64/224/EEC  of 25 February  1964, 
— to intermediaries  who  act in their  own  name, 
— to intermediaries  appointed  to negotiate  or to 
conclude  in the name  of the principal  a specified 
transaction  or a number  of specified  transactions 
only, 
— to intermediaries  who  carry  on their  activities  in 
the insurance  or credit  fields. 
Article  4 
The Member  States  are at liberty: 
1. not  to apply  Articles  15 (4),  last  sentence,  19, 26 
(2), 30 and  31 to persons  who  act as commercial 
agents  but by way  of secondary  activity  only;  the 
question  whether  the activity  is carried  on in that 
way being  determined  in  accordance  with 
commercial  usage  in the State  whose  law  governs 
the relations  between  principal  and  agent; 
2. to apply  some  or all of the  provisions  of this 
Directive,  as the  case  requires,  to persons  who 
carry  on other  trades  or professions  and  who, 
although  they  work  for their  own  account  and/or 
in their  own  name,  can  under  the national  law  be 
assimilated  to commercial  agents. CHAPTER  II 
Rights  and  duties  of the parties 
Article  5 
1. The  commercial  agent  shall  in carrying  out  his 
activities  act  fairly  and  in good  faith  vis-a-vis  his 
principal  and  third  parties.  He  shall  perform  his 
duties  with  the  care  which  a sound  businessman 
would  exercise. 
2. Without  prejudice  to and  in pursuance  of the 
general  duty  specified  in paragraph  1 the commercial 
agent  shall: 
(a) at all  times  supply  to  the  principal  the 
information  he needs  in order  to conduct  the 
business  satisfactorily,  especially  as regards  the 
solvency  of third  parties  in current  commercial 
transactions  of which  the agent  is aware; 
(b) keep  separately  from  his own  moneys  all sums 
received  for the principal  and  pay  them  over  to 
him without  delay; 
(c) keep  proper  accounts  relating  to the  accounts 
receivable  and  assets  of his principal; 
(d) look  after  such  property  as is given  into  his 
possession  with  the  care  which  a sound 
businessman  would  exercise; 
(e) comply  with  all instructions  given  to him  by the 
principal  for attaining  the  object  of the  agency, 
provided  they  do not  basically  affect  the agents' 
independence.  The  agent  may  arrange  his 
activities  and  use his time  as he thinks  fit. 
3. Unless  otherwise  agreed  the  commercial  agent 
may employ  the  services  of commercial  agents  and 
commercial  travellers. 
Article  6 
The commercial  agent  shall  not,  even  after  the 
contract  has  come  to an end,  divulge  to third  parties 
or turn  to account  any  commercial  or industrial 
secrets  which  were  disclosed  to him  or of which  he 
became  aware  because  of his relationship  with  the 
principal,  unless  he proves  that  his  doing  so is 
consistent  with  the  principles  of  a  sound 
businessman. 
Article  7 
1. The  commercial  agent  may  carry  on business 
for his own  account  or for account  of a third  party 
provided  that  business  is in goods  or services  which 
No C 13/4 Official  Journal  of the European  Communities 18.1.  77 
do not  compete  with  those  for  which  he  was 
appointed  to represent  the principal.  In particular  he 
may undertake  to act  as commercial  agent  for 
another  principal  or work  for  an employer  as a 
salaried  or wage-earning  representative. 
2. The  commercial  agent  shall  obtain  the consent 
of his principal  for the carrying  on of any  activity  for 
his own  account  or for  account  of a third  party  if 
that activity  involves  goods  or  services  which 
compete  with  those  for which  he has been  appointed 
to represent  the principal. 
3. The  parties  may  derogate  from  the provisions  of 
paragraphs  1 and  2 and,  in particular,  agree  that  the 
commercial  agent  shall  not  carry  on other  activities 
for account  of another  principal,  for his own  account 
or as an employee. 
Article  8 
1. Where  the commercial  agent  has  had  to meet  a 
claim  for  breach  of  industrial,  commercial  or 
intellectual  property  rights  over  goods  or services 
forming  the  subject-matter  of his  agency  he may 
claim  damages  from  his principal  if the breach  was 
caused  by the principal. 
2. The  provisions  of paragraph  1 shall  apply 
mutatis  mutandis  in the event  of breach  of the rules 
of fair  competition. 
Article  9 
1. The  commercial  agent  shall  have  authority  to 
negotiate  commercial  transactions  for account  of the 
principal.  He  shall  have  authority  to conclude 
agreements  in  respect  thereof  only  where  the 
principal  empowers  him  to do so. 
2. The  agent  shall  be presumed  to have  authority: 
— to receive  complaints  from  third  parties  where 
goods  or services  supplied  are  defective,  and, 
where  goods  are  not  accepted,  notices  that  they 
are available  for collection, 
— to protect  the principal's  rights  to have  the means 
of proof  preserved. 
3. Limitations  of the  agent's  authority  shall  be 
ineffective  as against  third  parties  unless  they  were 
aware  or ought  to have  been  aware  thereof. 
Article  10 
1. The  principal  shall  in his  relations  with  the 
commercial  agent  act  fairly  and  in good  faith.  He shall  make  available  to the commercial  agent  all the 
assistance  he  needs,  having  regard  to  the 
circumstances,  for the performance  of his part  of the 
contract. 
2. Without  prejudice  to the general  duty  specified 
in paragraph  1, the principal  shall  make  available  to 
the agent  in  suitable  quantity  such  materials, 
information  and  documents  as are necessary  for the 
performance  of his activities.  He shall  in particular: 
(a) supply  the agent  with  samples,  designs,  price  lists, 
printed  advertising  material,  conditions  of 
contract  and  other  documents  relating  to the 
goods  and  services  for  which  he  has  been 
appointed  agent; 
(b) provide  the  commercial  agent  with  all 
information  which  is  requisite  for  the 
performance  of the  contract,  particularly  as 
regards  current  and  prospective  production,  and 
inform  the  agent  without  delay  when  the 
principal  foresees  that  the volume  of commercial 
transactions  that  the  principal  will  be able  to 
execute  will  be considerably  lower  than  the 
commercial  agent  could  normally  expect. 
(c) inform  the  commercial  agent  without  delay  of 
the acceptance,  refusal  or, in appropriate  cases, 
the partial  performance  of  a commercial 
transaction. 
CHAPTER  III 
Remuneration  and  reimbursement  of expenses 
Article  11 
1. The  principal  shall  remunerate  the  commercial 
agent  by paying  him  commission  or a fixed  sum  or 
both.  Any  variable  item  of remuneration  which  is 
calculated  by reference  to turnover  shall  be deemed 
to be commission. 
2. The  amount  of commission  shall  be agreed 
between  the parties.  In the absence  of agreement  the 
agent  shall  be entitled  to the  commission  that  is 
customarily  allowed  to agents  appointed  for  the 
goods  or services  which  form  the  subject-matter  of 
his agency  in the  place  where  he carries  on his 
activities.  If there  is no custom  as to the commission 
the agent  shall  be entitled  to a fair  commission. 
3. Agency  contracts  which  exclude  the  agent's 
right  to be remunerated  shall  be void. 
18. 1. 77 Official  Journal  of the European  Communities No C 13/5 
Article  12 
1. The  commercial  agent  shall  be  entitled  to 
commission  on commercial  transactions  entered  into 
during  the currency  of the contract: 
(a) where  the  transaction  is procured  by  the 
commerical  agent;  or 
(b) where  the transaction  is entered  into  with  a thi^d 
party  with  whom  the  agent  has  previously 
negotiated  or agreed  a transaction  falling  within 
the terms  of his agency;  or 
(c) where  the  commercial  agent  is appointed  to 
cover  a specific  geographical  area  or a specific 
group  of people  and  the  transaction  is entered 
into in that  geographical  area  or with  a person 
belonging  to that  group,  notwithstanding  that  the 
transaction  was  negotiated  or agreed  otherwise 
than  by the commercial  agent. 
2. The  commercial  agent  shall  not  be entitled  to 
the commission  referred  to in paragraph  1 if by virtue 
of Article  13 that  commission  is payable  to another 
agent. 
Article  13 
The commercial  agent  shall  be  entitled  to 
commission  on commercial  transactions  entered  into 
after  the contract  has come  to an end: 
(a) where  the transaction  was  negotiated  by him;  or 
(b) where,  the  preparatory  work  having  been  done 
by him,  the  transaction  was  entered  into  mainly 
as a result  of his efforts  during  the  currency  of 
the contract;  in these  cases,  however,  he shall  be 
entitled  to commission  only  if the  transaction 
was entered  into  within  a reasonable  period  after 
the contract  came  to an  end,  a 'reasonable 
period'  being  one  which  is proportionate  to the 
type  of transaction  in question  and  to the volume 
thereof. 
Article  14 
Where  the  commercial  agent  is under  duty  to the 
principal  to  collect  payment  of  moneys,  the 
commercial  agent  shall  be  entitled  to a special 
commission  therefor. 
Article  15 
1. The  right  to commission  arises  at the  moment 
when  the principal  and  the third  party  enter  into  the 
commercial  transaction. 
2. The  commission  shall  be  payable  upon  the 
happening  of either  of the two  following  events: (a) as soon  as and  to the extent  that  the principal  has 
performed  his part  of the  transaction,  even  if he 
fails  to carry  out  his  obligations  fully  in the 
manner  agreed  or satisfies  some  of them  only 
partially;  or 
(b) as soon  as and  to the extent  that  the third  party 
has performed  his part  of the transaction. 
3. If  the  principal  or the  third  party  fails  to 
perform  his part  of the transaction  in full  the amount 
of commission  due  shall  be calculated  by reference  to 
the value  of that  part  performed  whose  value  is the 
higher. 
4. The  parties  may  agree  that  so long  as the third 
party  has  not  performed  his  obligations  the 
commission  shall  be payable  at a later  time  than  that 
provided  for  in subparagraph  (a)  of paragraph  2 
above.  The  commission  shall,  however,  be payable  in 
all cases  not  later  than  the  last  day  of the  third 
month  following  the  month  during  which  the 
principal  completed  the  performance  of his  part  of 
the contract.  Where  the parties  agree  as aforesaid  the 
agent  shall  be entitled  to receive  a payment  on 
account,  of suitable  amount,  not  later  than  the  last 
day of the month  following  the month  during  which 
the principal  completed  the  performance  of his part 
of the contract. 
5. The  principal  shall  each  month  supply  the 
commercial  agent  with  a statement  of the  amount  of 
commission  earned  and  the  amount  of commission 
payable.  The  statement  shall  set out the essential  data 
used  in calculating  the amounts  of commission.  The 
statement  shall  be prepared  promptly  and  in any  event 
not later  than  the  last  day  of the  month  following 
that in which  the commission  in question  was  earned. 
The parties  may  agree  that  this  period  shall  be 
extended  to three  months. 
Article  16 
1. The  right  to commission  shall  be extinguished: 
(a) where  the  commercial  agent  has  not  fulfilled  his 
obligations  under  Article  5 (2) (a),  the principal 
having  entered  into  the  commercial  transaction 
without  being  aware  of  the  third  party's 
insolvency  and  it being  established  that  the third 
party  has  not  or will  not  perform  his part  of the 
transaction;  or 
(b) if and  to the extent  that  it has  become  impossible 
to perform  the transaction,  this  being  in no way 
attributable  to the principal;  or 
(c) if performance  of  the  transaction  cannot 
reasonably  be  required  of  the  principal, 
particularly  where  there  exist  in relation  to the 
third  party  serious  grounds  for non-performance. 
2. Any  commission  which  the  commercial  agent 
has already  received  for  these  commercial 
transactions  shall  be refunded. 
No C 13/6 Official  Journal  of the  European  Communities 18.1.77 
Article  17 
Unless  otherwise  agreed  commission  shall  be 
calculated  on  the  gross  amount  of the  invoice 
without  deduction  of cash  discounts,  fidelity  rebates 
or reductions  allowed  unilaterally  by the  principal 
after  entry  into  the  commercial  transaction,  and 
without  deduction  of incidental  expenses  such  as 
costs  of transport,  packaging,  insurance,  taxes  and 
customs  charges,  unless  these  incidental  expenses  are 
invoiced  separately  to the customer. 
Article  18 
1. The  commercial  agent  shall  be entitled  to be 
supplied  with  all necessary  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. 
Article  6 shall  apply  mutatis  mutandis. 
2. If  there  exist  proper  grounds  for thinking  that 
the items  referred  to in paragraph  1 which  the 
principal  has supplied  are incorrect  or incomplete,  or 
if the principal  refuses  to supply  them,  the agent  shall 
be entitled  to require  that  either  the agent  himself  of 
some  person  designated  by the agent  (being  a person 
qualified  for  that  purpose  in accordance  with  the 
requirements  of the  national  law  applicable  in the 
State  where  the  books  of account  are  kept),  at the 
option  of the principal,  be given  access  to the books 
of account  and  the  accounting  documents  for  the 
purpose  of examining  them.  This  right  may  be 
exercised  to the  extent  necessary  for  checking  the 
correctness  or  completeness  of the  commission 
statement  or of the said  items. 
Article  19 
1. The  agent  shall  be entitled  to remuneration  if he 
has already  fulfilled  his obligations  under  the agency 
contract  or if he has  already  taken  steps  to meet 
those  obligations,  even  though  the principal  has made 
no use  of his  services  or has  used  them  to a 
considerably  lesser  extent  than  the  agent  could 
normally  have  expected,  unless  the  principal's 
conduct  is due to circumstances  beyond  his control. 
2. Usually,  in calculting  the remuneration  referred 
to in paragraph  1, account  shall  be taken  of all the 
circumstances,  the  basis  being  the  average  monthly 
remuneration  of the commercial  agent  during  the 12 
months  before  the  circumstances  described  in 
paragraph  1 arose.  If the contract  was  concluded  less 
than 12 months  previously  the remuneration  shall  be 
calculated  on  the  basis  of the  average  monthly 
remuneration  paid  during  the  currency  of the 
contract. 3. In  applying  paragraph  2 the following  shall  be 
taken  into  account: 
(a) the  expenses  incurred  by the  commercial  agent 
for the  purpose  of setting  up the  agency  and 
preparing  to commence  business; 
(b) the  amounts  which  the  commercial  agent  has 
saved  on expenses,  the  amounts  which  he has 
earned  in carrying  on some  other  activity  and 
those  which  he  has  deliberately  not  earned 
because  he has declined  some  activity  which  was 
nevertheless  suitable. 
Article  20 
1. The  commercial  agent  shall  not  be entitled  to 
reimbursement  of expenses  incurred  in the  usual 
course  of his activities  unless  the parties  have  agreed 
otherwise  or there  is a custom  to the contrary. 
2. Where,  however,  the  agent  incurs  expenses  in 
connection  with  special  activities  undertaken  on the 
instructions  or with  the consent  of the  principal,  he 
shall  be entitled  to be reimbursed. 
CHAPTER  IV 
Del credere 
Article  21 
1. Every  agreement  whereby  the commercial  agent 
guarantees  in favour  of his  principal  that  a third 
party  will  pay  the price  of goods  or services  forming 
the subject-matter  of commercial  transactions  which 
the agent  has negotiated  or agreed,  shall  be evidenced 
in writing  or by cable,  telex  or telegram.  This  type  of 
agreement  is hereinafter  referred  to as a del credere 
agreement. 
2. (a) A del credere  agreement  covering  transactions 
which  were  not  negotiated  or agreed  by the 
commercial  agent  shall  be void. 
(b) A del credere  agreement  shall  be concluded  in 
relation  only  to a particular  commercial 
transaction  or in relation  to a series  of such 
transactions  with  particular  third  parties  who 
are specified  in the agreement. 
(c) Any  del credere  agreement  which  amounts  to 
an unlimited  guarantee  on the  part  of the 
commercial  agent  for  transactions  falling 
within  the first  sentence  of paragraph  1 shall 
be void. 
3. The  commercial  agent  shall  be entitled  to be 
paid a separate  commission,  of reasonable  amount, 
18.1.77 Official  Journal  of the European  Communities No C 13/7 
for transactions  entered  into  to which  his del credere 
guarantee  applies. 
4. The  parties  may  derogate  from  the provisions  of 
paragraphs  1 to 3 as regards  transactions: 
(a) in which  the place  of business  of the principal,  or 
of the  third  party  is outside  the territory  of the 
Community  or, if the principal  or third  party  has 
no place  of business,  then  his place  of habitual 
residence  is outside  that  territory;  or 
(b) which  the  agent  has  been  given  full  power  to 
agree  and  to carry  out. 
CHAPTER  V 
Bankruptcy  or winding-up  of the principal,  execution 
and assignment 
Article  22 
1. Natural  persons  whose  income  is mainly 
derived  from  a commercial  agency  shall  as regards 
sums  owing  to  them  for  remuneration  and 
reimbursement  of expenses  be treated  as employees 
of the  principal  where  bankruptcy  or winding-up 
proceedings  have  been  opened  in respect  of the 
principal  or an arrangement,  composition  or other 
procedure  is in progress  with  the principal's  creditors. 
2. The  natural  persons  to whom  paragraph  1 
applies  shall  in relation  to sums  owing  to them  by the 
principal  on  account  of  remuneration  and 
reimbursement  of expenses  enjoy  those  rights  to 
which  employees  are entitled  as regards  the amount 
of income  for  which  execution  cannot  issue  where 
third  parties  obtain  an order  for execution  against  the 
principal. 
3. The  provisions  of national  law  relating  to 
employees  shall  apply  mutatis  mutandis  to the natural 
persons  referred  to in paragraph  1 as regards 
assignment  of sums  owing  to them  by the principal 
for remuneration  and  reimbursement  of expenses. 
4. The  Member  States  may  fix maximum  figures 
of income  for  purposes  of the  application  of 
paragraph  1. 
CHAPTER  VI 
Making  of the contract  and  cessation  of the contract 
Article  23 
Each  party  shall  be entitled  to receive  from  the other 
a signed  written  document  setting  out  the  terms  of 
the contract  and  any  terms  subsequently  agreed.  Any 
purported  waiver  of this  right  shall  be invalid. Article  24 
Article  23 shall  apply  mutatis  mutandis  where  by 
mutual  agreement  the agency  contract  is terminated. 
Article  25 
Subject  to Articles  27 and  28 a contract  for a fixed  or 
determinable  period  shall  terminate  upon  the 
expiration  of the  period  for  which  it was  made. 
Unless  otherwise  agreed  a contract  for  a fixed  or 
determinable  period  which  continues  to be performed 
after  that  period  has  expired  shall  be deemed  to be 
converted  into  a contract  for  an  indeterminate 
period. 
Article  26 
1. Where  the  contract  is concluded  for  an 
indeterminate  period  either  party  may  terminate  it by 
notice.  Notice  shall  be given  in writing.  The  period  of 
notice  shall  be the same  for both  parties. 
2. During  the  first  year  of the  contract  the  notice 
shall  be of not  less  than  two  months.  After  the first 
year the period  of notice  shall  be increased  by one 
month  for each  additional  year  which  has begun.  The 
Member  States  may  prescribe  a maximum  period  of 
notice  which  shall  in no case  be less  than  12 months. 
Periods  of notice  shall  coincide  with  the  end  of a 
calendar  month. 
Article  27 
1. Either  party  may  terminate  the  contract  at any 
time: 
(a) where  the  other  party  has  in relation  to the 
contract  committed  a fault  such  that  the  party 
v who  terminates  cannot  be required  to keep  it in 
being  until  the  end  of the  period  of notice  or 
until  the ehd  of its agreed  period  of duration;  or 
(b) where  some  circumstance  arises  which  makes  it 
impossible  to perform  the  contract,  or which 
seriously  prejudices  its performance,  or which 
substantially  undermines  the commercial  basis  of 
the contract,  so that  the  party  who  terminates 
cannot  be required  to keep  it in being  until  the 
end of the period  of notice  or until  the end  of its 
agreed  period  of duration. 
2. Termination  must  be effected  vis-a-vis  the  other 
party  as soon  as the fault  becomes  known  or as soon 
as the events  which  justify  termination  have  occurred. 
The party  who  terminates  shall  upon  request  of the 
other  inform  him  in writing  of the reasons  therefor. 
No C 13/8 Official  Journal  of the European  Communities 18.1.  77 
3. Where  the  contract  is  terminated  under 
paragraph  1 (a) the  party  who  is at fault  shall  be 
liable  in damages  to the other. 
Article  28 
1. Where  one  of the parties  terminates  the contract 
or declares  that  it is at an end,  without  in either  case 
observing  the proper  period  of notice  provided  for by 
the contract  or by law,  and  neither  of the grounds  for 
termination  set out  in Article  27 applies,  that  party 
shall  be liable  in damages  to the other. 
2. In  the  cases  referred  to in paragraph  1 the 
commercial  agent  shall  be  entitled  to  claim  a 
lump-sum  indemnity  in lieu  of damages  where  the 
contract  is terminated  by the principal  or declared  by 
him to be  at an  end.  The  indemnity  shall  be 
calculated  on the  basis  of the  average  remuneration 
paid  to the  agent  during  the  period  of 12 months 
preceding  the  declaration  or  termination.  If the 
contract  was  concluded  less  than  12  months 
previously  the  indemnity  shall  be calculated  on the 
basis  of the average  remuneration  received  during  the 
currency  of the  contract  up to the  time  when  the 
relevant  event  took  place.  The  indemnity  shall  be 
paid for  the  unexpired  period  of the  contract  but 
subject  to a maximum  period  of two  years. 
Article  29 
1. Upon  cessation  of the  contract  the  commercial 
agent  shall  deliver  up to the  principal  the  materials 
and documents  referred  to in Article  10 (2) unless  he 
has disposed  of them  in the  normal  course  of 
business. 
2. To  secure  the rights  of the commercial  agent  as 
regards  remuneration  and  reimbursement  of 
expenses,  he shall  have  a lien  over  such  movables  and 
other  property  of  the  principal  as  are  in his 
possession  pursuant  to the  contract,  which  lien  shall 
continue  after  cessation  of the contract. 
Article  30 
1. After  cessation  of the  contract  the  commercial 
agent  or his heirs  shall  be entitled  to require  payment 
by the principal  of a goodwill  indemnity: 
(a) where  the  agent  has  brought  new  customers  to 
the principal  or has  appreciably  increased  the 
volume  of business  with  the  existing  customers; 
and 
(b) where  as a result  thereof  substantial  benefits  will 
continue  to accrue  to the principal;  and 
(c) where,  notwithstanding  Article  13, the cessation 
of the  contract  results  in his  not  receiving remuneration  for  transactions  negotiated  or 
agreed,  after  the  contract  has  come  to an end, 
between  the principal  and  the  customers  referred 
to in subparagraph  (a) above. 
2. The  goodwill  indemnity  shall  be reasonable  in 
amount  having  regard  to all the  circumstances.  It 
shall  be equal  to not  less  than  one-tenth  of the 
annual  remuneration  calculated  on the  basis  of the 
average  remuneration  during  the preceding  five  years, 
including  transactions  on which  commission  arises 
under  Article  13,  multiplied  by the  number  of years 
for which  the  contract  has  been  in existence.  If the 
contract  was  concluded  less  than  five  years 
previously  the  indemnity  shall  be calculated  on the 
average  remuneration  received  during  the  period 
which  has actually  run. 
3. The  amount  of the  indemnity  shall  not  exceed 
twice  the average  annual  remuneration  calculated  in 
the manner  provided  in paragraph  2. Subject  always 
to this  maximum,  either  party  may  request  that  the 
amount  of the  indemnity  be calculated  otherwise 
than  as provided  in paragraph  2 where,  having  regard 
to all the circumstances,  it would  be equitable  so to 
calculate  it. 
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 an indemnity  not exceeding  the 
amount  provided  for  in paragraph  2.  If such 
termination  is  . justified  having  regard  to  the 
principal's  conduct,  or  for  reasons  which  are 
particular  to the agent,  such  that  the agent  cannot  be 
required  to continue  his activities,  the indemnity  may 
be fixed  at the  maximum  amount  provided  for  in 
paragraph  3 if this  is equitable. 
5. The  right  to goodwill  indemnity  shall  not  by 
prior  agreement  be contracted  out  of or restricted.  It 
may be exercised  only  during  the  period  of three 
months  following  cessation  of the contract. 
6. The  right  to indemnity  provided  for  in Article 
28 shall  not affect  the right  to goodwill  indemnity. 
Article  31 
No claim  to goodwill  indemnity  shall  arise: 
(a) where  the  principal  terminates  or could  have 
terminated  the  contract  under  Article  27 (1) (a); 
(b) where  the  principal  maintains  the  contract  on 
foot with  the  agent's  successor  who  was 
introduced  by the  agent  himself  or by his heirs, 
the successor  being  from  the legal  point  of view 
substituted  entirely  in the place  of the agent; 
18.1.77 Official  Journal  of the European  Communities No C 13/9 
(c) where  the agent  terminates  the contract  without 
giving  notice  of the proper  duration  required  by 
the contract  or by  law  and  without  proper 
grounds  under  Article  27 (1). 
Article  32 
1. Any  agreement  restricting  the business  activities 
of the  commercial  agent  following  cessation  of the 
contract  shall  be in writing,  and  in default  thereof 
shall  be void.  This  type  of agreement  is hereinafter 
referred  to as an agreement  restricting  competition. 
2. An  agreement  restricting  competition  shall 
apply  only  in relation  to the  geographical  area  or 
group  of persons  entrusted  to the commercial  agent 
and to the goods  and  services  covered  by his agency 
at the time  when  the contract  came  to an end. 
3. An  agreement  restricting  competition  shall  be 
valid  for not more  than  two  years  after  cessation  of 
the contract. 
4. Subject  to the  provisions  of paragraph  5 the 
principal  shall  pay  to the commercial  agent  a suitable 
indemnity  so  long  as the  agreement  restricting 
competition  is in force.  The  indemnity  shall  be 
calculated  on the  basis  of the  remuneration  of the 
commercial  agent  and  shall  have  regard  to all the 
circumstances  of the case. 
5. (a) Where  the  principal  terminates  the  contract 
under  Article  27  (1)  (a)  the  agreement 
restricting  competition  shall  continue  effective 
but the  agent  shall  not  be entitled  to the 
indemnity. 
(b) Where  the  commercial  agent  terminates  the 
contract  under  Article  27 (1) (a) the agreement 
restricting  competition  shall  apply  unless 
terminated  by him.  Such  termination  shall  be 
effected  in writing. 
(c) Where  either  party  terminates  the  contract 
under  Article  27 (1) (b) or thereunder  declares 
it to be at an end,  the  other  party  may 
terminate  the  agreement  restricting  competi-
tion.  Such  termination  shall  be effected  in 
writing. 
6. Before  the  contract  has  come  to an end  the 
principal  may  terminate  the  agreement  restricting 
competition  and,  if he does  so,  shall  after  the 
expiration  of six months  from  the time  when  he gave 
notice  of termination  no longer  be under  obligation 
to pay  the indemnity  referred  to in paragraph  4. CHAPTER  VII 
General  and  final  provisions 
Article  33 
1. Where  the commercial  agency  is undertaken  by 
a company  or legal  person  whose  most  recent  annual 
accounts  show  that  it has a paid-up  capital  exceeding 
the equivalent  of 100  000 European  units  of account, 
the parties  may  derogate  from  the  provisions  of 
Articles  15 (4), 19, 21, 26 (2) and  30. 
2. The  European  unit  of account  (EUA)  means  the 
unit of account  defined  in Commission  Decision 
3289/75/ECSC  of 15 December  1975  (*). 
Article  34 
1. Claims  which  arise  under  the  foregoing 
provisions  shall  be subject  to a limitation  period  of 
four years.  The  limitation  period  shall  begin  to run 
from  the  end  of the  year  during  which  the  claim 
arose. 
2. As  regards  claims  which  arise  during  the last  10 
years  of the contract  for commission  which  has  not 
been  included  in the statement  referred  to in Article 
15 (5),  or for  reimbursement  of expenses  under 
Article  20, the  limitation  period  shall  begin  to run 
from  the end  of the year  during  which  the contract 
came  to an end. 
Article  3S 
1. Any  stipulation  whereby  the parties  derogate,  to 
the detriment  of the agent,  from  the provisions  next 
hereinafter  mentioned  shall  be void:  Articles  5 (1),  8, 
10 (1),  10 (2) (b) and  (c),  11 (1) and  (3),  12 (1),  13, 
14, 15, 16 (1),  18, 19 (1) and  (2),  20 (2),  21 (1) (2) 
and (3),  23, 26, 27, 28, 29 (2), 30, 32 and  34. 
2. In  addition  to the cases  of derogation  permitted 
under  Article  21 (4) and  Article  33, the parties  may 
derogate  from  the compulsory  provisions  specified  in 
the foregoing  paragraph  in relation  to those  activities 
which  the  commercial  agent  carries  on outside  the 
Community. 
Article  36 
1. The  Member  States  shall  before  1 January  1980 
adopt  and  publish  the provisions  which  are necessary 
(') OJ  No L 327,  19. 12. 1975,  p. 4. 
No C 13/10 Official  Journal  of the European  Communities 18.1.  77 
to comply  with  this  Directive  and  shall  inform  the 
Commission  thereof  immediately.  They  shall  apply 
those  provisions  from  1 July  1980. 
2. From  the  time  of notification  of this  Directive 
the Member  States  shall  inform  the Commission,  in 
good  time  to  enable  it to  communicate  its 
observations,  concerning  the  draft  laws,  regulations and administrative  provisions  which  they  plan  to 
adopt  in the field  governed  by this  Directive. 
Article  37 
This  Directive  is addressed  to the Member  States.