In France, to master the rules applicable to commercial agent contracts, it is necessary to know that the activity of agent can fall under two distinct regulations, one rather protective of the agent, and the other more flexible.
On the one hand, there is the commercial agent stricto sensu (“agent commercial"), or statutory commercial agent, who has to meet a precise legal definition in order to benefit from a protective regime set by articles L 134-1 to L 134-17 of the French code of commerce. These articles result from the law of June 25, 1991 transposing the provisions of the EU directive n°86/653 of December 18, 1986 on commercial agents. These articles provide a fairly well-defined legal framework. In French domestic law, many provisions are of internal public order, in the sense that the principal and the agent cannot derogate from it; the question is more delicate in the case of an international contract (see § 4. below).
On the other hand, there is the so-called agent of common interest (“mandataire d’interêt commun”) which essentially falls under the provisions of the Civil Code applicable to the mandate (art. 1984 and seq. of the Civil Code) complemented by case-law. The legal framework for the activity of agents of common interest is much more flexible, even vague, because it refers to general rules. In addition, most of these rules are not of public order; consequently, the contract of agent of common interest may derogate therefrom.
The common point between these two forms of legal scheme lies in the fact that the commercial agent and the agent of common interest are both agents (“mandataire”). They represent their co-contractors (the principal). They both act on behalf of the principal insofar as they officially present themselves as the representative of the principal and they both act on behalf of the principal in the sense that their actions are binding upon the principal.
Generally speaking, when an agent acts on behalf of a company and its contract or activity cannot be analyzed as a commercial agent because it does not meet the conditions laid down by law and case law, judges recognize him as, at least, an agent of common interest (unless falling within another legal category set out in § 2 below).
The following presentation will distinguish, where necessary, the rules applicable to the agent of common interest and to the commercial agent. It should also be known that the English word "agent" covers both a generic term which refers to the general category of mandate (“mandataire”) and also a specific status (“agent commercial”); foreign traders should be therefore cautious with the use of this word.