Spain – Distribution agreements and goodwill (clientele) compensation

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According to the well-established jurisprudence of the Spanish Supreme Court, a distributor may be entitled to compensation for clientele if article 28 of the Agency Law is applied analogically (the “inspiring idea“). This compensation is calculated for the agent based on the remunerations received in the last five years.

In a distribution contract, however, there are no “remunerations” such as those received by the agent (commissions, fixed amounts or others), but “commercial margins” (differences between the purchase and resale price). The question is, then, what magnitude to consider for the clientele compensation in a distribution contract: either the “gross margin” (the aforementioned difference between the purchase price and the resale price), or the “net margin” (that same difference but deducing other expenses and taxes in which the distributor had incurred in).

The conclusion until now seemed to be to calculate the compensation of the distributor from his “gross margins” since this is a magnitude more comparable to the “remuneration” of the agent: other expenses and taxes of the distributor could not be deduced in the same way as in an agency contract neither expenses and taxes were deduced.

The Supreme Court (November 17, 1999) had pointed out that in order to calculate compensation for clients “it is more appropriate to consider it as a gross contribution, since with it the agent must cover all the disbursements of its commercial organization“. In addition, the “earnings obtained” “do not constitute remuneration in the same sense” (October 21, 2008), given that such “benefits“, “belong to the internal scope of the agent’s own organization” (March 12, 2012).

Recently, however, the judgment of the Supreme Court of March 1, 2017 (confirmed by another of May 19, 2017) considers that the determination of the amount of clientele compensation in a distribution contract cannot be based on the “gross margins” obtained by the distributor, but in the “net margin”. To reach this conclusion, the Court refers to a judgment of the same court of 2016 and to others of 2010 and 2007.

Does this imply a change in the case-law? In my opinion, this reading that the Supreme makes is not correct. Let’s see why.

In the judgment of March 2017, the disjunctive between gross or net margin is mentioned in the Second Legal Argument and refers to the ruling of 2016.

In that judgment of 2016 it was said that although in another of 2010 it was not concluded whether the calculation had to be made on gross or net margins, in a previous one of 2007, it was admitted that what was similar to the remuneration of the agent was the net profit obtained by the distributor (profits once deduced expenses and taxes) and not the margin that is the difference between purchase and resale prices.

Now, in my opinion, in the judgment of March 2017 the Supreme Court is referring in last instance to the judgement 296/2007 for something that the latter did not say. In 2007, the Supreme Court did not quantify clientele compensation, but rather damages. More specifically, and after stating that “the compensation for customers must be requested clearly in the lawsuit, without confusion or ambiguity“, the Court concluded that the Chamber “must resolve what corresponds according to the terms in which the debate was raised…in the initial lawsuit. And since…an indemnity of damages was interested mainly based on the time that the relationship had lasted…the solution more adjusted to the jurisprudence of this Court…consists in fixing as indemnification of damages an amount equivalent to the net benefits that [were] obtained by the distribution of the products…during the year immediately prior to the termination of the contract“. Therefore, in that the judgment of 2007 the Court did not decide on clientele compensation, but on damages.

In this way, the conclusion reached in 2007 to calculate compensation for damages on net margins, was transferred without further analysis to 2016 but for the calculation of clientele compensation. This criterion is now reiterated in the judgments of 2017 almost automatically.

In my opinion, however, and despite the jurisprudential change, the thesis that should prevail is that in order to apply analogically clientele compensation in distribution contracts, the magnitude equivalent to the “remuneration” of the agent is the “gross margin” obtained by the distributor and not its “net margin”: it does not make much sense that if the analogy is applied to recognize the clientele compensation to a distributor, it is deducted from its gross margins amounts to reach its margin or net profit. The agent also has his expenses and also pays his taxes starting from his “remunerations” and nothing in Directive 86/653/EEC nor in the Agency Contract Act allows to deduce such magnitudes to calculate his clientele compensation. In my opinion, therefore, and in line with this, distributors should be equal: the magnitudes that could be compared should be the (gross) retributions of the agent with the (gross) margins of the distributor (i. e. the difference between purchase and resale price).

In conclusion, judgments of March 1 and May 19, 2017 insist on what I consider a prior mistake and generate additional confusion to an issue that has already been discussed: the analogical application of clientele compensation to the distribution contracts and the calculation method.

Updating Notice (January 27, 2020)

In a recent Order (“Auto”) of the Supreme Court of November 20, 2019 (ATS 12255/2019 of inadmissibility of an appeal), the Court has had occasion to return to this matter and to confirm the criteria of the last jurisprudence: that in the distribution contracts, the magnitude to consider to apply the analogy and calculate the goodwill indemnity are the “net margins”.

In this procedure, a distributor appealed the decision of the Provincial Court of Barcelona that recognized compensation based on net margins and not gross margins. Said distributor requested the Supreme Court to annul said judgment on the grounds that it was taken following the latest jurisprudence, erroneous according to previous one in the appellant’s opinion.

The Supreme Court, however, seems to confirm that, contrary to the thesis that I defended above in this Post, « there is no alleged error in the most recent jurisprudence in the analogical interpretation of art. 28.3 of the Agency Law for the distribution contract, nor, therefore, the need to review the most recent jurisprudence on the subject ». Consequently, if the Supreme Court does not review its latest jurisprudence and considers that the judgment that applied the net margins was acceptable, we must consider that the magnitude to be considered in the compensation for clientele in distribution contracts is that of the net margins and not gross margins

With this decision it seems (or just “its seems”?), therefore, that the Court settles the discussion that, however and in my opinion, will nevertheless continue to rise to numerous discussions.

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Ignacio Alonso
  • Arbitration
  • Corporate
  • Distribution
  • Franchising

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