In Switzerland, commercial agency agreements are mainly regulated by Articles 418a to 418v of the Swiss Code of Obligations (“CO"). Furthermore, Article 418b para. 1 CO states that the provisions governing brokerage contracts ("Mäklervertrag" in German; "Courtage" in French; "Contratto di mediazione" in Italian; Articles 412 to 418) apply supplementarily to agents acting as intermediaries ("Vermittlungsagenten" / "agent négociateurs" / "agenti che trattano gli affari") and those governing commissions ("Kommission" / "Commission" / "Commissione"; Articles 425 to 439 CO) to agents acting as proxies ("Abschlussagenten" / "agents stipulateurs" / "agenti che li conchiudono"). Yet, those references are of minor importance, as Articles 418a to 418v CO already deal with agency agreements in quite some detail.
In addition to the rules in the CO, the Cartel Act, Swiss Unfair Competition Act and further laws may also govern the rights and obligations of the parties to an agency agreement. With regard to the application of the Swiss Cartel Act, it is helpful to refer to the Guidelines on Vertical Restraints (2010/C 130/01) of the European Commission. If the contractual relationship between a principal and an agent qualifies as an agency agreement in terms of paras. 12 et seqq. of the Guidelines on Vertical Restraints and thus falls outside the scope of Article 101 para. 1 of the Treaty on the Functioning of the European Union, it is likely that it will also be compliant with Swiss competition law.
Since Switzerland is not a member state of the European Union, the EU Directive 653/86/EC on the coordination of the laws of the Member States relating to self-employed commercial agents is not applicable. However, Swiss agency law – which was originally enacted already in 1949 and thus decades before Directive 653/86 – is comparable to the rules set forth in Directive 653/86, although there are issues that are governed differently.
According to Swiss law, an agent is a person who undertakes to act on a continuous basis as an intermediary for one or more principals in facilitating or concluding transactions on their behalf, without, however, entering into an employment relationship with its principals.
Swiss law provides the parties to an agency agreement with substantial contractual freedom. However, there are some exceptions where the CO sets forth mandatory rules. This concerns, in particular, the entitlement to a special compensation in the event that agents assume liability for customers' payment obligations (del credere) or shall be bound by post-contractual non-compete obligations. Furthermore, goodwill indemnities are mandatory as well.
As a matter of principle, Swiss agency law obliges agents to safeguard their principal's interests with the diligence of a prudent merchant. In return, principals must do everything in their power to enable the agents to perform their activities successfully. Furthermore, principals are obliged to notify agents immediately if they anticipate that the actual number and/or volume of transactions will be substantially smaller than what was agreed or could be expected in the circumstances.
An agent is entitled to the agreed or customary commission on all transactions facilitated or concluded during the agency relationship and, unless otherwise agreed in writing, on transactions concluded during the agency relationship by the principal without the agent's involvement but with customers acquired by the agent for transactions of that kind.
Within the scope of the agent's exclusivity rights, the agent is entitled to the commission on all transactions concluded during the agency relationship with customers covered by the exclusivity rights. Unless otherwise agreed in writing, the entitlement to the commission arises as soon as the transaction has been validly concluded between the principal and the customer. Claims for commission fall due at the end of the semester in which the transaction was concluded unless the parties to the agency agreement agree otherwise.