INSTITUT DU DROIT INTERNATIONAL DES TRANSPORTS
ET DE LA LOGISTIQUE
INSTITUTE OF INTERNATIONAL TRANSPORT &
LOGISTICS LAW
RESEARCH
TRAINING
INFORMATION
IRU Symposium – 21 February 2014
Intermediaries – Various Legal Situations
The Case of France
Frédéric LETACQ
IRU Symposium – 21 February 2014
1- Intermediary Types & Functions
The carrier performs transport
The forwarder (“commissionnaire de transport”) organises transport
The forwarding agent (“transitaire”) receives / forwards on
IRU Symposium – 21 February 2014
Definitions: Forwarder (“commissionnaire de transport”)
Transport Code (L 1411-1):
Considered as forwarders: those who organise, under their responsibility and in
their own name, the performance of a freight carriage operation by means of their
choice on behalf of a principal.
Case Law:
The carriage assignment is the agreement through which the forwarder commits
itself vis-à-vis the principal to perform on the latter’s behalf any legal acts necessary
for the carriage. It is characterised not only by the freedom which the forwarder has
to freely organise carriage by ways and means of its choice, in its own name and
under its responsibility, but also by the fact that it relates to the whole carriage from
start to finish.
IRU Symposium – 21 February 2014
Legal elements defining the capacity as forwarder
1) Acts in its own name on behalf of the principal
(as opposed to an agent)
2) Is an organiser and does not mainly perform physical services
(as opposed to the carrier or handler)
3) Is free to choose ways and means and resorts to substitutes
(fundamental criterion)
In return for this freedom of action => strict liability
IRU Symposium – 21 February 2014
Definitions: Auxiliaries – Forwarding Agents
Transport Code (L 1411-1):
Considered as transport auxiliaries: those who contribute to the transport operation
without actually performing it or providing the means to perform it.
Forwarding Agent:
Legal representative – the forwarding agent’s functions are defined by its
assignment, and usually restricted to receiving, warehousing, re-sending and
administration (port passage). Forwarding agents may also organise, monitor and
coordinate transport operations and book freight, container filling or emptying from
carriers. They act on behalf of and in their principal’s name (≠ forwarder)
IRU Symposium – 21 February 2014
2- Rules of Admission to the Occupation
Regulated Occupations:
Carrier / Removal firm /
Truck rental with driver => YES
Forwarder => YES
Agent - forwarding agent => NO / Freedom of trade
does not require any specific registration
Admission to the Occupation
Forwarder
Carrier / Rental Firm
Ref.: Decree n°90-200 amended 2011
+ orders
Ref.: Decree n°99-752 amended 2011
+ several orders (road transport package)
Authorisation to operate issued by the regional
Prefect upon submission of the RCS company
register extract (for companies) Prerequisite for
registration in the trade register and issuing of licences
Registration omthe forwarder register
Registration in the carrier / rental firm register
Location: French company – headquarters
Foreign company: main place of business
Location: French company – headquarters
Foreign company: main place of business
Conditions : 4
Conditions : 2
…
Establishment requirement: premises suitable for
the activity to keep documents (transport /
accounting / personnel / social documents...)
Objective: avoid shell companies
Admission to the Occupation
Forwarder
Carrier / Rental Firm
Professional competence:
Professional competence:
The person in charge of transport assignments
The transport manager (in charge of permanent
must hold a certificate of professional competence actual management of carriage or rental activities)
issued by the regional Prefect
must hold a certificate of professional competence
issued by the regional Prefect
The certificate is obtained via: - Written exam /
-Equivalence of diplomas (level III / transport
The certificate is obtained via: - Written exam /
specialist or including 200 h of management)
-Equivalence of diplomas (level III / restrictive list)
- At least 5 years’ work experience in
- At least 10 years’ work experience in
management (uninterrupted + possible 40h internship) management (uninterrupted)
Financial standing:
Own capital + reserves
Financial standing requirements dropped in 2010
Vehicles > 3.5 t => 9000€ for first vehicle,
5000€ per further vehicle
Vehicles ≤ 3.5 t => 1800€ for first vehicle,
900€ per further vehicle
Good repute:
Applies to management + the holder of the
certificate of competence (either a single sentence
Good repute:
Applies to all managers, the director and the
corporate body (List of sentences extended by
prohibiting from engaging in a business activity, or
several sentences for transport offences)
Regulation 071/2009. Cumulative sentences)
Admission to the Occupation
Forwarder
Carrier / Rental Firm
Consequences of registration:
Consequences of registration:
A certificate of registration in the register is issued
Leads to issuance of licences by the regional
Prefect (in accordance with EC Regulation 1072/2009) :
EU Licence => Vehicles > 3.5 t (allows domestic
transport / international within the EEA / cabotage)
Domestic transport licence => Vehicles ≤ 3.5 t
(only covers domestic transport)
(The company’s various establishments are recorded in
the register of the company headquarters as well as in
the registers of the regions where they are located)
Sanctions:
Criminal penalty: Unlawful practice without
registration => Misdemeanour (1 year jail sentence
Sanctions:
Criminal penalty: Unlawful practice without
registration => Misdemeanour (1 year jail sentence
and €15,000 fine)
and €15,000 fine)
Provision of false information => Misdemeanour
(2 year jail sentence and €30,000 fine)
Administrative sanctions: by the Prefect as advised
Administrative sanctions: by the Prefect as advised
by a regional Commission for administrative sanctions
(withdrawal of authorisation / licence / striking from
register)
by a Commission for administrative sanctions
IRU Symposium – 21 February 2014
3- Contractual Framework
System of contracts under French law
Forwarder
Carrier
Agent /
Forwarding Agent
Commercial Code
“regarding Forwarders”
+ Transport Code
Commercial Code
“regarding Carriers”
+ Transport Code
Civil Code
“regarding Assignments”
Standard contract for
transport assignment
Standard contracts of
road carriage
Freely set General
Terms
(general or specific)
Transport assignment contracts and
contracts of carriage
Forwarder
Transport assignment
contract
Governed by:
National law
Commercial / Transport Codes
Standard assignment contract
Goods flow
Contractual relationships
Contracts of carriage
Governed by:
Standard contracts; CMR;
Brussels Convention; CIM
Uniform Rules...
IRU Symposium – 21 February 2014
Benefits of the “transport assignment” standard contract
• Provides a legal framework for relationships between the forwarder and
the principal
• Restricts the forwarder’s personal liability (proof of wrongdoing required
for personal liability to be involved)
• Instates ceilings to automatic compensation
• Instates periods of notice in case of breach of relations
Caution! As with any standard contract, the provisions of the assignment
standard contract only apply unless otherwise agreed in writing between
the parties
IRU Symposium – 21 February 2014
Admissibility of Actions
Action for contractual liability:
• Consignor / Consignee against the carrier => YES
• Consignor / Consignee against the forwarder => YES
• Shipping contractor against the forwarding agent => YES
(commissioning rules; the shipping principal may also take action against
the sub-contractor, Civil Code Art 1994)
• Non-contracting consignee against the forwarding agent => NO (no
privity of contract)
Legal basis: L132-8 Commercial Code: "the consignment note amounts to a
contract between the consignor, carrier and consignee or between the
consignor, consignee, forwarder and carrier”
IRU Symposium – 21 February 2014
Admissibility of Actions
Action for payment:
• Domestic carrier against the consignor or consignee => YES
• International CMR carrier against the consignor or consignee => NO
Except if the former demonstrates that French law applies in addition to CMR
(Regulation EC 593/2008 “Rome 1”, Art 5) [chosen law / law of carriers’ country if this is
the same as the country of loading or receipt / law of the country of receipt / escape clause]
• Forwarder against consignor / consignee, non principal => NO
even subrogate
• Forwarding agent against consigner / consignee, non contracting => NO
Legal basis: L132-8 al.2 Commercial Code: “The carrier is entitled to direct
action for payment of its services against the consignor and consignee, which
stand as guarantors for payment of freight charges”.
IRU Symposium – 21 February 2014
4- Contractual Liability Aspects
Carrier against consignor and consignee => Presumption of liability for loss /
damage / delay
Forwarder against consignor and consignee => Presumption of liability for
loss / damage / delay + Liability for actions of substitute carriers (L132-4; 5 &
6 Commercial Code)
Forwarding agent – agent against its client (principal) => liability for proven
default (commissioning rules; Civil Code art 1992)
+ in case of hidden assignment subcontracting => the main contractor answers for the
subcontractor (Civil Code art 1994 § 2)
IRU Symposium – 21 February 2014
Case of the subcontracting road carrier
Case law before 2005 :
The road carrier who freely subcontracts carriage becomes a forwarder => answers for
the substitute carrier
Case law since 2005 (Commercial Court of Appeal 10 May 2005) :
Subcontracting carriage does not entail qualifying as a forwarder for the subcontracting
party except where the consignor has approved the substitution => the carrier who
freely subcontracts no longer answers for the substitute carrier
ORTF Law - 8 December 2009 (Transport Code Art L 3224-1) :
“The responsibilities of road carriers resorting to subcontracting are those foreseen for
forwarders in the Commercial Code”
=> Same liability as forwarder – answers for the subcontractor
(does not become a forwarder but is subject to the same liability)
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