This is the 6th edition of the Agency and Distribution Handbook covering 39 countries in the EMEA region with chapters on each of the 28 European Union member states, two European Economic Area countries (Norway and Switzerland) and chapters from further afield, including countries such as Egypt, the Russian Federation, Saudi Arabia. To make for easier reading and comparison, each chapter follows the same structure and approach.
The 1986 EU Agency Directive (Council Directive 86/653/EEC) has applied for a number of years and has been implemented by all the EU member states. The directive has created a common body of protection for agents, although variations still exist as the directive is a minimum harmonisation instrument and, at the time the directive was introduced, many member states had existing laws that were comparable with, and in some cases more protective than, the provisions of the directive and these were largely preserved. For example, the directive includes certain protections for an agent dealing with the sale or purchase of goods, but many member states extend their rules to also protect agents dealing with the sale or purchase of services.
One important principle currently applicable to international agency agreements, derived from the Ingmar1 EU Court of Justice judgment of 9 November 2000, refers to the choice of non-EU governing law. In particular, the principle sets out that a choice of non-EU governing law will not entitle a principal to evade liabilities under the directive, notably those entitling the agent to compensation or an indemnity payment on termination. In other words, the directive will guarantee certain mandatory rights to commercial agents in the EU, although the principal is established in a non-EU member country and a term of the agreement expressly stipulates that the contract is to be governed by the law of that non-EU country.
A more recent case, the EU Court of Justice judgment in Unamar2 of 17 October 2013, concerned the effectiveness of the choice of EU law in an agency agreement. In this case, the agent and principal were established in different EU member states, which had both implemented the Agency Directive. The agreement between the parties used the governing law of the member state where the principal was established. Subsequently, the agent argued that it was entitled to the protection provided by the “mandatory rules” of the agency law of the EU member state where the agent operated. The court held that where both member states have implemented the directive, it will be for the court of the forum to establish if the laws protecting agents in that country are “mandatory rules” and supersede the choice of law in an agreement.
As for the position of distributors, apart from Belgium, no country in the European Union has equivalent specific legislation protecting distributors. However, there has been an increasing trend in some EU member states where courts have started to establish protections for distributors that are influenced by and analogous to those set out in the Agency Directive.
The EU Competition Law chapter of this handbook gives the reader an overview of EU competition law in general and describes rules under the Verticals Regulation. There are no separate sections on national competition law in each country chapter, but the reader should be aware that each country will also have its own national laws on competition, which will apply alongside the EU competition law regime.
We have included a chapter on Compliance, Anti-Corruption and Export Controls dealing with some of the key issues that agency and distribution arrangements can raise in areas such as anti-bribery and corruption, export controls and trade sanctions.
The contributions to this 6th edition of the handbook have been prepared by members of Baker McKenzie’s International Commercial & Trade Practice Group and by experts in correspondent law firms. Special thanks go to those correspondent law firms in Bulgaria, Cyprus, Denmark, Estonia, Finland, Greece, Ireland, Latvia, Lithuania, Malta, Norway, Portugal, Romania and Slovenia.
The summaries in this publication are intended as a general guide only, and specific advice should be sought in individual cases. For assistance and questions, the authors of each chapter would be pleased to assist and can be contacted directly. Their contact details are set out in the Contributors section.
1 Ingmar GB Ltd v. Eaton Leonard Technologies Inc Case C-381/98.
2 United Antwerp Maritime Agencies (Unamar) NV v. Navigation Maritime Bulgare Case C-184/12.