CELEX: 51978PC0773
Language: en
Date: 1979-01-15
Title: AMENDMENT TO THE PROPOSAL FOR A COUNCIL DIRECTIVE TO CO-ORDINATE THE LAWS OF THE MEMBER STATES RELATING TO ( SELF-EMPLOYED ) COMMERCIAL AGENTS

2. 3. 79                            Official Journal of the European Communities                       No C 56/5
                                                           II
                                                  (Preparatory Acts)
                                              COMMISSION
              Amendment to the proposal for a Council Directive to coordinate the laws of the
                            Member States relating to (self-employed) commercial agents (1)
              (Submitted    by the Commission to the Council pursuant to Article        149 (2) of the
                                           EEC Treaty on 29 January 1979)
                    ORIGINAL PROPOSAL                                           AMENDED PROPOSAL
THE COUNCIL OF THE EUROPEAN
COMMUNITIES,
Having regard to the Treaty establishing the                   Preamble and recitals unchanged.
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 (2);
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-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
(>) OJ N o C 13, 18. 1. 1977, p. 2.
M OJ N o 56, 4. 4. 1964, p. 869/64.
 ---pagebreak--- N o C 56/6                        Official Journal of the European Communities                                 2. 3. 79
                   ORIGINAL PROPOSAL                                             A M E N D E D PROPOSAL
representation    contracts    where principal       and
commercial agent 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                                                        Article 1
 1.    The harmonization measures prescribed by this                                  Unchanged
 Directive apply to the laws, regulations and
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                                                        Article 2
 For the purposes of this Directive the expression             For the purposes of this Directive the expression
 'commercial     agent'    means      a    self-employed       'commercial      agent'        means    a self-employed
 intermediary who has continuing authority for a                intermediary who has continuing authority for a
 fixed or indeterminate period to negotiate and/or to           fixed or indeterminate period to negotiate and/or to
 conclude an unlimited number of commercial                    conclude an unlimited number of commercial
 transactions in the name and for account of another           transactions in the name and for account of another
 person (who is hereinafter called 'the principal').           person (who is hereinafter called 'the principal'). The
                                                               agent may arrange his activities and use his time as he
                                                                thinks fit.
 ---pagebreak--- 2. 3 . 7 9                            Official Journal of the European Communities                             N o C 56/7
                     ORIGINAL PROPOSAL                                              AMENDED PROPOSAL
                          Article 3                                                       Article 3
This Directive does not apply:                                    Unchanged
— 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.
                                                                  — to intermediaries who, according to the practice
                                                                      prevailing in the State in which they habitually
                                                                      carry on their activities, are regarded as doing so
                                                                      by way of secondary activity only.
                          Article 4                                                       Article 4
The Member States are at liberty:                                 The Member States are at liberty:
1. not to apply Articles 15 (4), last sentence, 19, 26            1.   Deleted
     (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                2. Unchanged
    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.
(») OJ N o 56, 4. 4. 1964, p. 869/64.
                                                        CHAPTER II
                                               Rights and duties of the parties
                          Article 5                                                       Article 5
 1.      The commercial agent shall in carrying out his           1.    Unchanged
 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             2.    Without prejudice to and in pursuance of the
 general duty specified in paragraph 1 the commercial             general duty specified in paragraph 1, the commercial
 agent shall:                                                     agent shall:
 ---pagebreak--- No C 56/8                           Official Journal of the European Communities                               2. 3. 79
                    ORIGINAL PROPOSAL                                             AMENDED PROPOSAL
                                                               (a) make proper efforts to negotiate or conclude the
                                                                    transactions entrusted to him,
 (a) at all times supply to the principal the                 (b) supply the principal with the information he
     information he needs in order to conduct the                   needs for the satisfactory conduct of his business,
     business satisfactorily, especially as regards the             especially as regards the solvency of third parties
     solvency of third parties in current commericial               who are to the knowledge of the agent involved
     transactions of which the agent is aware,                      in current commercial transactions with the
                                                                    principal,
 (b) keep separately from his own moneys all sums             (c) keep separately from his own moneys all sums
     received for the principal and pay them over to                received for the principal and pay them over to
     him without delay,                                             him without delay,
 (c) keep proper accounts relating to the accounts            (d) keep proper accounts relating to the accounts
     receivable and assets of his principal,                        receivable and assets of his principal,
 (d) look after such property as is given into his            (e) look after such property as is given into his
     possession with the care which a sound                         possession with the care which a sound
     businessman would exercise,                                    businessman would exercise,
 (e) comply with all instructions given to him by the         ( f ) comply with all instructions given to him by the
     principal for attaining the object of the agency,              principal for attaining the object of the agency,
     provided they do not basically affect the agent's              provided they do not basically affect the agent's
     independence. The agent may arrange his                        independence.
     activities and use his time as he thinks fit.
 3.    Unless otherwise agreed the commercial agent           3.      Unchanged
 may employ the services of commercial agents and
 commercial travellers.
                         Article 6                                                     Article 6
The commercial agent shall not, even after the                The agent shall not, even after the contract has come
contract has come to an end, divulge to third parties         to an end, divulge to third parties or turn to account
or turn to account any commercial or industrial               in his relations with third parties any commercial or
secrets which were disclosed to him or of which he            industrial secrets which were disclosed to him, or of
became aware because of his relationship with the             which he became aware, because of his relationship
principal, unless he proves that his doing so is              with the principal, unless such turning to account is
consistent with the principles of a sound                     generally accepted as being consistent with proper
businessman.                                                  business ethics.
                      .  Article 7                                                     Article 7
1.    The commercial agent may carry on business              1.     Unchanged
for his own account or for account of a third party
provided that business is in goods or services which
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           2.     Unchanged
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.
 ---pagebreak--- 2. 3.79                             Official Journal of the European Communities                           No C 56/9
                    ORIGINAL PROPOSAL                                             AMENDED PROPOSAL
3.     The parties may derogate from the provisions of         3.    Deleted
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            1.    Unchanged
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               2.    Unchanged
 mutatis mutandis in the event of breach of the rules
 of fair competition.
                                                               3.    The commercial agent shall inform the principal
                                                                of any legal action taken against the agent in respect
                                                               of any such breach as referred to in paragraphs 1
                                                               and 2.
                         Article 9                                                     Article 9
 1.     The commercial agent shall have authority to                                  Unchanged
 negotiate 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                                                    Article 10
  1.    The principal shall in his relations with      the      1.    Unchanged
  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.
 ---pagebreak---  No C 56/10                         Official Journal of the European Communities                                    2. 3. 79
                    ORIGINAL PROPOSAL                                                 AMENDED PROPOSAL
 2.    Without prejudice to the general duty specified             2.     Unchanged
 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,          (a) Unchanged
     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          (b) provide the agent with all information necessary
     information which          is requisite for the                   for the performance of the contract, particularly
     performance of the contract, particularly as                       as regards current and prospective production,
     regards current and prospective production, and                   and inform the agent without delay when the
     inform the agent without delay when the principal                 principal foresees that the volume of commercial
     foresees that the volume of commercial                            transactions which the principal will be able to
     transactions that the principal will be able to                   execute will be considerably lower than the agent
     execute will be considerably lower than the                        could normally expect;
     commercial agent could normally expect;
 (c) inform the commercial agent without delay of                  (c) Unchanged
     the acceptance, refusal or, in appropriate cases,
     the partial performance of a commercial
     transaction.
                                                     C H A P T E R III
                                    Remuneration and reimbursement of expenses
                         Article 11                                                       Article 11
 1.   The principal shall remunerate the commercial               1.     The principal shall remunerate the commercial
agent by paying him commission or a fixed sum or                  agent. Contracts of agency which exclude the agent's
both. Any variable item of remuneration which is                  right to be remunerated shall be void.
calculated by reference to turnover shall be deemed
to be commission.
2.    The amount of commission shall be agreed                    2.     The remuneration may take the form of
between the parties. In the absence of agreement the              commission or of a fixed sum or of both. Part of the
agent shall be entitled to the commission that is                 remuneration may be paid in kind. Any variable
customarily allowed to agents appointed for the goods             remuneration factor which is calculated by reference
or services which form the subject-matter of his                  to turnover shall be deemed to be commission.
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                  3.     The text of paragraph 2 of the original proposal
right to be remunerated shall be void.                            is to be inserted here. Old paragraph 3 is deleted.
                        Article 12                                                        Article 12
1.    The commercial agent shall be entitled to                   1.     Unchanged
commission on commercial transactions entered into
during the currency of the contract:
 ---pagebreak--- 2. 3. 79                             Official Journal of the European Communities                            N o C 56/11
                    ORIGINAL PROPOSAL                                                AMENDED PROPOSAL
(a) where the transaction         is  procured    by   the      (a) Unchanged
      commercial agent; or
(b) where the transaction is entered into with a third          (b) where the transaction is entered into with a third
     party with w h o m the agent has previously                    party whom the agent had previously acquired as
      negotiated or agreed a transaction falling within              a client for transactions of the same kind; or
      the terms of his agency; or
(c) where the commercial agent is appointed to                  (c) Unchanged
      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           2.    Unchanged
the commission referred to in paragraph 1 if by virtue
of Article 13 that commission is payable to another
 agent.
                         Article 13                                                      Article 13
 The commercial agent shall be entitled to                      1.    The commercial agent shall be entitled to
 commission on commercial transactions entered into             commission on commercial transactions entered into
 after the contract has come to an end:                         after the contract has come to an end:
 (a) where the transaction was negotiated by him; or            (a) Unchanged
 (b) where, the preparatory work having been done               (b) where, the preparatory work having been done
       by him, the transaction was entered into mainly               by him, the transaction was entered into mainly
      as a result of his efforts during the currency of              as a result of his efforts during the currency of
      the contract; in these cases, however, he shall be             the contract.
      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.
                                                                2.    In the aforesaid 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. The parties
                                                                may fix this period by mutual agreement.
                         Article H                                                       Article 14
Where the commercial agent is under duty to the                                          Unchanged
 principal to collect payment of moneys, the
 commercial agent shall be entitled to a special
 commission therefor.
                         Article IS                                                       Article 15
1.      The right to commission arises at the moment             1.    Unchanged
when the principal and the third party enter into the
 commercial transaction.
 ---pagebreak--- No C 56/12                          Official Journal of the European Communities                                   2. 3. 79
                    ORIGINAL PROPOSAL                                                AMENDED PROPOSAL
2.     The commission shall be payable upon the                2.      The commission shall become due upon the
happening of either of the two following events:               happening of either of the two following events:
 (a) as soon as and to the extent that the principal has        (a) Unchanged
      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          (b) as soon as and to the extent that the client has
      has performed his part of the transaction.                     fulfilled    the obligations   laid down     in the
                                                                     contract.
3.     If the principal or the third party fails to            3.     If the principal and the third party have failed
perform his part of the transaction in full the amount         to perform their respective obligations in full, the
of commission due shall be calculated by reference to          amount of commission due shall be calculated by
the value of that part performed whose value is the            reference to the value of that part performed whose
higher.                                                        value is the greater.
4.     The parties may agree that so long as the third         4. (a) The parties may agree that so long as the third
party has not performed his obligations the                              party has not performed his obligations the
commission shall be payable at a later time than that                    commission shall not become due until a later
provided for in subparagraph (a) of paragraph 2                          time than that provided for in subparagraph
above. The commission shall, however, be payable in                       (a) of paragraph 2 above.
all cases not later than the last day of the third
month following the month during which the                         (b) Where the parties agree as aforesaid, the agent
principal completed the performance of his part of                       shall be entitled to receive a payment on
the contract. Where the parties agree as aforesaid the                   account, of suitable amount, not later than the
agent shall be entitled to receive a payment on                          last day of the month following the month
account, of suitable amount, not later than the last                     during which the principal completed the
day of the month following the month during which                        performance of his part of the contract.
the principal completed the performance of his part                (c) The commission shall, however, in any
of the contract.                                                         eventuality become due, at the latest, on the
                                                                         last day of the third 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              5       Transferred to Article 18 (1).
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                                                        Article 16
1.     The right to commission shall be extinguished:          1.      The right to commission shall be extinguished:
(a) Where the commercial agent has not fulfilled his           (a) Where the commercial agent has not fulfilled his
     obligations under Article 5 (2) (a), the principal             obligations under Article 5 (2) (b), the principal
     having entered into the commercial transaction                  having entered into the commercial transaction
     without being aware of the third party's                       without being aware of the third party's
     insolvency and it being established that the third             insolvency and it being established that the third
     party has not or will not perform his part of the              party has not or will not perform his part of the
     transaction; or                                                transaction; or
 ---pagebreak--- 2. 3. 79                            Official Journal of the European Communities                            No C 56/13
                    ORIGINAL PROPOSAL                                               AMENDED PROPOSAL
(b) if and to the extent that it has become impossible          (b) if and to the. extent that it has become impossible
     to perform the transaction, this being in no way                 to perform the transaction, this being in no way
     attributable to the principal; or                                attributable to the principal; or
(c) if performance of the transaction cannot                    (c) if performance of the transaction cannot
      reasonably be required of the principal,                       reasonably be required of the principal,
     particularly where there exist in relation to the               particularly where there exist in relation to the
     third party serious grounds for non-performance.                third party serious grounds for non-performance.
2.     Any commission which the commercial agent               2.      Unchanged
has      already   received    for these commercial
transactions shall be refunded.
                        Article 17                                                       Article 17
Unless otherwise agreed commission shall be                    The words 'Unless otherwise agreed' have been
calculated on the gross amount of the invoice                  deleted.
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                                                       Article 18
                                                                1.      The principal shall each month supply the
                                                                commercial agent which 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.
1.     The commercial agent shall be entitled to be            2.      The commercial agent shall be entitled to be
supplied with all necessary extracts from the copies           supplied with all necessary extracts from the copies
of the principal's books of account, together with             of the principal's books of account, together with
explanations thereof, to enable him to check the               explanations thereof, to enable him to check the
amounts of commission to which he is entitled.                 amounts of commission to which he is entitled. (The
Article 6 shall apply mutatis mutandis.                         last sentence is deleted).
2.     If there exist proper grounds for thinking that         3.      If there exist proper grounds for thinking that
the items referred to in paragraph 1 which the                 the commission statement referred to in paragraph 1
principal has supplied are incorrect or incomplete, or         or the information which the principal has supplied
if the principal refuses to supply them, the agent shall       are incorrect or incomplete, or if the principal refuses
be entitled to require that either the agent himself or        to supply the information, the agent shall be entitled
some person designated by the agent (being a person            to require that either the agent himself or some
qualified for that purpose in accordance with the              person designated by the agent (being a person
requirements of the national law applicable in the             qualified for that purpose in accordance with the
State where the books of account are kept), at the             requirements of the national law applicable in the
option of the principal, be given access to the books          State where the books of account are kept), at the
of account and the accounting documents for the                option of the principal, be given access to the books
purpose of examining them. This right may be                   of account and the accounting documents for the
exercised to the extent necessary for checking the             purpose of examining them. This right may be
correctness or completeness of the commission                  exercised to the extent necessary for checking the
statement or of the said items.                                correctness or completeness of the commission
                                                               statement or of the information supplied by the
 ---pagebreak--- N o C 56/14                          Official Journal of the European Communities                                2. 3. 79
                    ORIGINAL PROPOSAL                                              AMENDED PROPOSAL
                                                                principal. The prohibition contained in Article 6 shall
                                                                apply in the cases referred to in paragraphs 2 and 3
                                                                of the present Article.
                        Article  19                                                     Article 19
1.     The agent shall be entitled to remuneration if he         1.   The agent shall be entitled to indemnification if
has already fulfilled his obligations under the agency          he has already fulfilled his obligations under the
contract or if he has already taken steps to meet               agency contract or if he has already taken steps to
those obligations, even though the principal has made           meet those obligations, even though the principal has
no use of his services or has used them to a                    made no use of his services or has used them to a
considerably lesser extent than the agent could                 considerably lesser extent than the agent could
normally have expected, unless the principal's                  normally have expected, unless the principal's
conduct is due to circumstances beyond his control.             conduct is due to circumstances beyond his control.
2.     Usually, in calculating the remuneration referred        2.    In calculating the amount of indemnification,
to in paragraph 1, account shall be taken of all the            account shall be taken where appropriate of the
circumstances, the basis being the average monthly              amount of any commission paid previously and the
remuneration of the commercial agent during the 12              factors mentioned in paragraph (3).
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            3.    Unchanged
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                                                      Article 20
 1.   The commercial agent shall not be entitled to                                     Unchanged
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
instruction or with the consent of the principal, he
shall be entitled to be reimbursed.
                                                      CHAPTER IV
                                                       Del credere
                        Article 21                                                      Article 21
 1.    Every agreement whereby the commercial agent              I.   Unchanged
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
 ---pagebreak--- 2. 3. 79                              Official Journal of the European Communities                           No C 56/15
                    ORIGINAL PROPOSAL                                               AMENDED PROPOSAL
agreement is hereinafter referred to as a del credere
agreement.
2. (a) A del credere agreement covering transactions             2.    A del credere agreement may be concluded only
         which were not negotiated or agreed by the              in relation to a particular commercial transaction, or
         commercial agent shall be void.                         in relation to a series of transactions with particular
                                                                 third parties who are specified in the agreement.
                                                                 A del credere agreement shall be void if:
    (b) A del credere agreement shall be concluded in            (a) it covers transactions which were not negotiated
         relation only to a particular commercial                     or agreed by the commercial agent; or
         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               (b) it amounts to a guarantee by the commercial
         an unlimited guarantee on the part of the                    agent of all the transactions negotiated or agreed
         commercial agent for transactions falling                    by him.
         within the first sentence of paragraph 1 shall
         be void.
3.     The commercial agent shall be entitled to be              3.    The commercial agent shall be entitled to be
paid a separate commission, of reasonable amount,                paid a separate commission, of reasonable amount,
for transactions entered into to which his del credere           for transactions entered into to which his del credere
guarantee applies.                                               guarantee applies. Such commission shall become due
                                                                 at the time when the relevant transactions are agreed
                                                                 upon.
4.     The parties may derogate from the provisions of           4.    Unchanged
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                                                      Article 22
1.     Natural persons whose income is mainly                                             Deleted
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 relations 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.
 ---pagebreak--- N o C 56/16                         Official Journal of the European Communities                              2. 3. 79
                     ORIGINAL PROPOSAL                                          AMENDED PROPOSAL
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                                                    Article 23
Each party shall be entitled to receive from the other                               Unchanged
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 24
 Article 23 shall apply mutatis mutandis where by                                    Unchanged
 mutual agreement the agency contract is terminated.
                         Article 25                                                   Article 25
 Subject to Articles 27 and 28 a contract for a fixed or       The words 'Unless otherwise agreed' have been
 determinable period shall terminate upon the                  deleted from the second sentence.
 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                                                   Article 26
  1.    Where the contract is concluded for an                  1.    Unchanged
  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        2.    The period of notice shall not be less than one
  shall be of not less than two months. After the first         month during the first year in which the contract
  year the period of notice shall be increased by one           enters into force. After the first year, it shall be
  month for each additional year which has begun. The           increased by 14 days for each additional year which
  Member States may prescribe a maximum period of               has begun. The Member States may prescribe a
  notice which shall in no case be less than 12 months.         maximum period of notice which shall in no case be
  Periods of notice shall coincide with the end of a            less than six months. Periods of notice shall coincide
  calendar month.                                               with the end of a calendar month.
 ---pagebreak--- 2. 3. 79                             Official Journal of the European Communities                           N o C 56/17
                    ORIGINAL PROPOSAL                                             A M E N D E D PROPOSAL
                         Article 27                                                      Article 27
 1.     Either parry may terminate the contract at any           I.   Either party may teminate the contract at any
time:                                                           time:
 (a) where the other party has in relation to the               (a) where the other party has in relation to the
      contract committed a fault such that the party                contract conducted himself in a manner which is
      who terminates cannot he required to keep it in               seriously inconsistent with his obligations, or has
      being until the end of the period of notice or                in relation to the contract committed a serious
      until the end of its agreed period of duration; or            fault, with the result that the party who
                                                                    terminate 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; or
 (b) where some circumstance arises which makes it              (b) Unchanged
      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         2.    Unchanged
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.
3.     Where the contract is terminated under                   3.    Unchanged
paragraph 1 (a) the party who is at fault shall be
liable in damages to the other.
                         Article 28                                                      Article 28
 1.    Where one of the parties terminates the contract                                Unchanged
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
 ---pagebreak--- N o C 56/18                         Official Journal of the European Communities                                 2. 3. 79
                    ORIGINAL PROPOSAL                                             A M E N D E D PROPOSAL
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                                                      Article 29
1.     Upon cessation of the contract the commercial                 Unchanged
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.     T o secure the rights of the commercial agent as        2.    T o secure the rights of the commercial agent as
regards     remuneration      and    reimbursement     of      regards    remuneration          and   reimbursement    of
expenses, he shall have a lien over such movables and          expenses, he shall have a lien over such movables and
other property of the principal as are in his                  other property of the principal as are in his
possession pursuant to the contract, which lien shall          possession pursuant to the contract, which lien shall
continue after cessation of the contract.                      continue after cessation of the contract. When
                                                               exercising this right, the agent shall maintain the
                                                               principal's movables and other property in good
                                                               condition.
                        Article 30                                                       Article 30
1.     After cessation of the contract the commercial          1.    Unchanged
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           2.     The words 'not less than' have been deleted
amount having regard to all the circumstances. It               from the second sentence.
 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            3.     The amount of the indemnity shall not exceed
 twice the average annual remuneration calculated in           the average annual remuneration calculated in the
 ---pagebreak--- 2. 3.79                             Official Journal of the European Communities                          No C 56/19
                    ORIGINAL PROPOSAL                                            AMENDED PROPOSAL
 the manner provided in paragraph 2. Subject always           manner provided in paragraph 2. Subject always to
 to this maximum, either party may request that the           this maximum, either party may request that the
 amount of the indemnity be calculated otherwise              amount of the indemnity be calculated otherwise
 than as provided in paragraph 2 where, having regard         than as provided in paragraph 2 where, having regard
 to all the circumstances, it would be equitable so to        to all the circumstances, it would be equitable so to
 calculate it.                                                calculate it.
4.     Where the agent terminates the contract by             4.    If the agent terminates the contract he shall not
 notice the period of which is consistent with the            be entitled to goodwill          indemnity  unless the
 period of notice required by the contract or by law,         termination of the contract was justified having
 he shall be entitled to an indemnity not exceeding the       regard to the principal's conduct or to circumstances
 amount provided for in paragraph 2. If such                  peculiar to the agent, such as age or illness, in
termination is justified having regard to the                 consequence of which he cannot be required
principal's conduct, or for reasons which are                 to continue his activities.
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           5.    Unchanged
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         6.    Unchanged
28 shall not affect the right to goodwill indemnity.
                        Article 31                                                    Article 31
No claim to goodwill indemnity shall arise:                   Unchanged
(a) where the principal terminates or could have              (a) Unchanged
      terminated the contract under Article 27 (1) (a),
(b) where the principal maintains the contract on             (b) Unchanged
      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,
(c) where the agent terminates the contract without           (c) Deleted
     giving notice of the proper duration required by
     the contract or by law and without proper
     grounds under Article 27 (1).
                        Article 32                                                    Article 32
1.     Any agreement restricting the business activities      1.    Unchanged
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             2.   Unchanged
apply only in relation to the geographical area or
 ---pagebreak--- N o C 56/20                          Official Journal of the European Communities                                 2. 3. 79
                     ORIGINAL PROPOSAL                                             AMENDED PROPOSAL
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            3.    Unchanged
valid for not more than two years after cessation of
the contract.
4.     Subject to the provisions of paragraph 5 the             4.    Unchanged
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              5.    Unchanged
        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               6.    Unchanged
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.
                                                                7.    The principal shall be entitled to damages if the
                                                                agent fails to observe the no-competition agreement.
                                                      CHAPTER VII
                                               General and final provisions
                         Article 3.3                                                   Article 33
 1.    Where the commercial agency is undertaken by             1.    Where the commercial agency is undertaken by
a company or legal person whose most recent annual              a company or legal person whose most recent annual
accounts show that it has a paid-up capital exceeding           accounts show that it has a paid-up capital exceeding
the equivalent of 100 000 European units of account,            the equivalent of 100 000 European units of account,
the parties may derogate from the provisions of                 or whose annual turnover exceeds 500 000 European
Articles 15 (4), 19, 21, 26 (2) and 30.                         units of account, the parties may derogate from the
                                                                provisions of Articles 15 (4), 19, 21, 26 (2) and 30.
 ---pagebreak--- 2. 3. 79                            Official Journal of the European Communities                            No C 56/21
                    ORIGINAL PROPOSAL                                              AMENDED PROPOSAL
2.     The European unit of account (EUA) means the            2.    Unchanged
unit of account defined in Commission Decision No
3289/75/ECSC of 15 December 1975 (').
                        Article 34                                                     Article 34
1.     Claims which arise under the foregoing                  1.    Claims which arise under the foregoing
provisions shall be subject to a limitation period of          provisions shall be subject to a limitation period of
four years. The limitation period shall begin to run           three years. The limitation period shall begin to run
from the end of the year during which the claim                from the end of the year during which the claim
arose.                                                         arose.
2.     As regards claims which arise during the last 10        2.    As regards claims which arise during the last
years of the contract for commission which has not             five years of the contract for commission which has
been included in the statement referred to in Article          not been included in the statement referred to in
15 (5), or for reimbursement of expenses under Article         Article 18 (1), or for reimbursement of expenses under
20, the limitation period shall begin to run from the/         Article 20, the limitation period shall begin to run
end of the year during which the contract came to an           from the end of the year during which the contract
end.                                                           came to an end.
                        Article 35                                                     Article 35
 1.    Any stipulation whereby the parties derogate, to         I.   Any stipulation whereby the parties derogate, to
the detriment of the agent, from the provisions next           the detriment of the agent, from Articles 8, 10 (2) (c),
hereinafter mentioned shall be void: Articles 5 (1), 8,         12 (1) (a), 15, 18, 19, 21 (1), (2) and (3), 23, 24, 26,
10 (1), 10 (2) (b) and (c), 11 (1) and (3), 12 (1), 13,        27, 28, 29 (2), 30, 32 and 34 shall be void.
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        2.    Unchanged
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                                                     Article 36
1.     The Member States shall before 1 January 1980            1.   The Member States shall within 18 months
adopt and publish the provisions which are necessary           from notification of this Directive bring into force the
to comply with this Directive and shall inform the             laws, regulations and administrative provisions which
Commission thereof immediately. They shall apply               are necessary to enable them to comply with it and
those provisions from 1 July 1980.                             shall inform the Commission thereof immediately.
                                                               Such provisions shall, immediately upon entering into
                                                               force, apply to contracts which are then current.
2.     From the time of notification of this Directive         2.    The Member States shall communicate to the
the Member States shall inform the Commission, in              Commission the texts of the main provisions which
H OJ No L 327, 19. 12. 1975.
 ---pagebreak--- No C 56/22                        Official Journal of the European Communities                             2. 3. 79
                   ORIGINAL PROPOSAL                                         AMENDED PROPOSAL
good time to enable it to communicate its                   they incorporate into their internal laws in the field
observations, concerning the draft laws, regulations        governed by this Directive.
and administrative provisions which they plan to
adopt in the field governed by this Directive.
                       Article 37                                                Article 37
This Directive is addressed to the Member States.                                Unchanged