Unlike the distribution contracts, the agency ones are expressly regulated by the Romanian civil code namely article 2072- 2095.
In the case of the sale of wine, agency contracts are common only in the case of the Principals that have local presence and that can obtain the necessary authorizations for the sale and storage of wine and most important for entering the wine on the Romanian market in an excise suspen-sive regime because generally the agent does not have storage capacities nor does it obtain the authorization required by law for the sale because his acts just like an intermediary.
For the Principals that are not present in Romania, the agency contract is not a suitable option and they should explore concluding a distribution contract, hence placing most of the business risks and the obligations to obtain authorization of the Distributor.
The agency contract has a series of particularities, as follows:
1. the exclusivity clause
In both theory and practice the agency contract should contain a clause with respect to the exclu-sive (or non exclusive) character of the relation between the parties in that particular territory. In the absence of such a provision both the agent and the Principal are entitled to conclude similar contract for the same goods/services with third parties that shall activate on that territory.
The exclusivity may be unilateral, namely only for the Agent to be obliged not to act on behalf of other Principals on the same territory and for the same goods or products and, should this be the case, the clause must be worded in a manner that restricts the possibility of the Agent to provide competing services to other not only through an agency contract but also through a labor contract or an intermediary contract.
2. the non-compete clause
Is the one through which the principal restricts the possibility of the Agent to provide the same type of services after the termination of their contract.
According to the civil code the non–compete clause can regard only the territory included in the agency contract and only the goods and services that the agent was empowered to negotiate for and shall be valid for a maximum of 2 years after the end of the contract. If a longer period was foreseen then its effects shall be limited to 2 years and if the territory or the scope of the services affected by non compete have been enlarged then such provisions shall not produce effects.
The Principal cannot rely on the non-compete clause when the contract agency ceases in the fol-lowing situations: a) the Principal unilaterally denounces the agency contract with non-observance of the term of notice, legal or conventional; b) the agency contract is terminated as a result of the fault of the Principal.
3. the commission and its calculation
The agent receives for his services a commission and the parties may agree when is the latter due: In this respect the civil code sets forth 3 possibilities, but the parties have the liberty to dero-gate from the legal provisions: a) when the Principal observed its obligations towards third party; b) when the Principal should have fulfilled its obligation according to the contract executed with the third party; c) when the third party fulfilled its obligations (mainly the payment one) towards the Principal.
The Principal of course would be interested for the contract to stipulate that the Agent’s fee shall be due at the date the third party pays the price so that it does not have to advance such costs from its own pocket and also this would keep the Agent motivated to ensure the collection of the amounts (if he undertook this obligation under the contract).
The commission is due also for the contracts concluded through the efforts of the Agent, that have not been fully executed due to either of the parties, should the agent have fulfilled its obliga-tions.
With respect to the computation modality at the end of each quarter the Principal must send cop-ies of the invoices to the agent that were sent to third parties, as well as a description of the commission value calculation. At the request of the agent, the Principal shall immediately com-municate to him the information necessary to calculate the commission, including the relevant statements from its accounting records.
4. the duration and termination
Just like in the case of most type of contracts, the parties to an agency contract may stipulate its duration or just leave it for un undetermined period of time. It is to be noted though that in the case of the contract concluded for a determined period of time, if the parties continue to work on its basis after the expiry, then the contract shall be automatically prolonged for an undetermined period of time, which shall have an impact on the notice that either party must send for the antic-ipated unilateral termination of the contract, in the sense that the duration of the notice initially foreseen in the contract (if any) shall be prolonged as detailed below.
With respect to the notice period, in the first year of the contract, the notice period shall have a duration of at least one month. If the duration of the contract is longer than one year, the mini-mum notice period shall be increased by one month for each additional year started, without the notice period exceeding 6 months.
The parties may derogate from the provisions of the civil code and stipulate a longer notice period (than 6 months) but in such case it is mandatory for both parties to have the same obligation.