Discussion Panel
on commericial agents
and occasional intermediaries
IDI Conference, Venice 2012
IDI Conference, Venice 2012
Members of the Panel:
• Ágnes Szent-Ivány (Sándor Szegedi Szent-Ivány
Komáromi Eversheds, Hungary);
• Pedro da Costa Mendes (CNCM Advogados,
Portugal);
• Peter E.P. Gregersen (Horten, Denmark);
• Olga Sztejnert-Roszak (Drzewiecki, Tomaszek &
Partners, Poland)
IDI Conference, Venice 2012
Frankfurt, 20. May 2008
Agreement concluded between
Company XY with its registered office in Palum, Daro 12, represented by Mr. Keller
(“Company”)
and
Mr. Alexander Rola – acting on his own behalf, residing in Eden, Rabo 7 (“Mr. Rola”)
1. The Company as a manufacturer of the spare parts to construction machines is interested
in acquiring new clients in the country of Mr. Rola. Mr. Rola is ready to assist the Company
in this acquisition and declares that he has a sufficient experience in this respect.
2. After Mr. Rola finds a new Client, he will notify the Company on the data of the Client and
its needs. The draft of the notification constitutes the Attachment Number 1 to this
Agreement.
3. The Company will notify Mr. Rola on the order placed by the Client found by Mr. Rola.
4. Mr. Rola will be remunerated in the amount of 4% (four percent net) of the net amount
mentioned in the invoice issued by the Company to the Client found by Mr. Rola.
5. Mr. Rola will issue the invoice after the Client will pay the invoice issued by the Company.
6. Mr. Rola declares that he will not represent any Company’s competitor as long as this
Agreement will apply.
7. This Agreement is concluded for the unlimited period of time.
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Termination period
assuming that the contract is:
- an agency contract;
- a contract with an occasional intermediary;
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Danish law – termination of contract –termination
period:
Agency:
- One month for each commenced year of the
contract (up to 6 months);
- The parties can agree that ..
Contract with occasional intermediary:
- No specific legislation. Governed by the general
contractual rules -> “fair notice”)
- What is “fair notice”?
IDI Conference, Venice 2012
Portuguese law – termination of the contracts –
termination period:
 Termination without cause only allowed for contracts for an
indefinite period
– 1 month in the first year commenced;
– 2 months in the second year commenced;
– 3 months from the 3rd year commenced + subsequent years;
• If the parties agree on longer periods than those laid down in
the Law, period of notice to be observed by the Principal must
not be shorter than that to be observed by the Agent.
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Hungarian law – termination of the contracts –
termination period:
Agency:
–1 month in the first year commenced;
–2 months in the second year commenced;
–3 months from the third year commenced;
Contract with occasional intermediary:
–Company: with immediate effect
–Mr. Rola :
– reasonable, fair notice -> enabling the Company to handle the
matters appropriately
– in case of serious breach by Company: with immediate effect
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Polish law – termination of the contracts –
termination period:
Agency:
1 month – in the first year;
2 months – in the second year;
3 months – in the third and next years of the validity of the contract;
Contract with occasional intermediary:
No statutory limits or terms (and no contractual rules): according to the
customs or immediately after declaration on termination of the contract
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Company is going to terminate the contract with
Mr. Rola. We are advisors of the Company.
What should the Company be aware of provided
that Mr. Rola is an agent under the contract?
What if he is an occasional intermediary?
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Polish law: termination by the Company:
Mr. Rola is an agent:
-
goodwill indemnity;
new clients, considerable benefit,
one year provision maximum;
Mr. Rola is an occasional intermediary:
-
return of expenses;
payment of the remuneration due;
compensation of damage upon the general rules.
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Hungarian law: termination by the Company:
Mr. Rola has acted as an agent:
-
-
Communication of the termination (notice period)
Payment of goodwill compensation (Mr. Rola acquired new clients or
expanded the business relation with existing clients significantly; this
results in benefits for the Company even after termination; mMaximum
amount: one year average commission)
Payment of commission due
Compensation of damages, if applicable
Mr. Rola has acted as an occasional intermediary:
-
Communication of the termination;
Payment of commission due;
Payment of necessary and useful expenses incurred by Mr. Rola
Relieving Mr. Rola from obligations undertaken in the course his activity
Compensation of damages, if applicable
IDI Conference, Venice 2012
Portuguese law: termination by the Company:
Mr. Rola is an agent:
-
Payment of commission due
goodwill indemnity, if termination is not attributable to Agent;
new clients, considerable benefit,
1 year average commission max (almost never given in full by Courts);
Mr. Rola is an occasional intermediary:
-
reimbursement of expenses;
payment of the remuneration due;
compensation of damage upon the general rules.
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Danish law: termination by the Company:
Mr. Rola is an agent:
- termination notice
- possible goodwill indemnity
- one year’s average commission maximum
- payment of the commission (due)
- compensation for damages under the general rules
Mr. Rola is an occasional intermediary:
- termination notice
- possible compensation for costs and expences
- payment of the commission due
- compensation for damages under the general rules
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Mr. Rola is going to terminate the contract with
the Company. We are Mr. Rola advisors.
What Mr. Rola will lose in case of termination of
the contract provided that Mr. Rola is an agent?
What if he is an occasional intermediary?
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Hungarian law – termination by Mr. Rola as:
Mr. Rola has acted as an agent:
- Communication of the termination (notice period)
- No goodwill compensation:
- Payment only in limited cases (breach of contract by
Company, health reason, age)
- communication within one year!
Mr. Rola has acted as an occasional intermediary:
- Communication of the termination (reasonable notice
period);
- Liable for damages if termination has been made without
substantial reason
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Polish law – termination by Mr. Rola as:
An agent:
-
goodwill compensation
An occasional intermediary:
-
should the intermediary be remunerated and the termination without
important cause, he will be liable for damage (upon the general rules)
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Danish law – termination by Mr. Rola as:
Mr. Rola is an agent and should consider:
- termination notice
- Possible loss of goodwill indemnity
- compensation for damages under the general rules
Mr. Rola is an occasional intermediary and should consider :
- termination notice
- possible compensation for costs and expenses
- damages under the general rules
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Portuguese law – termination by Mr. Rola as:
Mr. Rola has acted as an agent:
- Commissions due
- No goodwill compensation, unless exceptions
- Eventual compensation for damages (eg: for unlawful earlier
termination or non-fulfilment of termination period notice)
Mr. Rola has acted as an occasional intermediary:
- Notice of termination (reasonable notice period);
- Eventual compensation for damages (same as above)
- Remuneration due
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Could Mr. Rola file the motion for interim
injunction or other temporary measure?
In what extend? What kind of measure?
What does he has to prove?
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Portuguese law – interim injunction
Two main criteria:
o Fumus bonis juris
o Periculum in mora
30 days to file main law suit
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Hungarian law – interim injunction
-What?
Same request that submitted in the claim statement (e.g.
damages, commission, etc.)
-When?
Could be requested earliest at the time the claim is filed
-How?
By substiantiating one of the following reasons:
- Necessary to
- prevent any imminent threat of damage; or
- preserve the status quo; or
- By considering the need of special protection, the expected
advantages supersede disadvantages obtained by the measure
Interim injunction in Hungary is rarely applied
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Danish law – interim injunction
An interim injunction requires:
• - Making likely
• 1) that the prohibited actions would violate your rights,
• 2) that the other party would make such actions, and
• 3) that you cannot await a decision by the ordinary
courts.
- Relevant for termination of an agency or occational
intermediary contract?
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Polish law – interim injunction
Prerequisites:
- Probability of the claims;
- Lack of interim measures could make the execution
of the verdict impossible or difficult;
Interim measures:
- arrest on movables, remuneration, bank account;
- mortgage or pledge
- prohibition of sale;
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What are the non-competition consequences of
contract termination (if any) provided that the
contract between the Company and Mr. Rola
is an agency contract?
What in case of intermediary contract?
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Danish law – non-competition consequences:
- No non-competition consequences unless
otherwise agreed.
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Portuguese law – non-competition
consequences:
• non-competition clause has to be written to be valid.
• maximum period of 2 years + restricted to territory and/or in
relation to a certain circle of customers, previously attributed
to the Agent.
• Agent has right to an equitable compensation
• Otherwise, violation of art 61º of the Constituição da
República Portuguesa, violation of right to private initiative.
• Occ Intermediary = same consequence as above
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Hungarian law – non-competition
consequences:
Unless otherwise agreed, no conqeuences.
Possible agreement:
Agency: maximum period of two years after
termination for appropriate compensation
Intermediary: can be concluded for a maximum
period of five years, one year after termination
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Polish law – non-competition consequences:
Only in agency contract:
• post-contractual non-competition obligation
has to be provided in the contract unless it is
null and void;
• may refer to the group of the clients, territory,
particular goods or services;
• maximum 2 years;
• in general remunerated;
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Thank you
for your attention!