The agent shall be entitled to commission with respect to all the transactions/contracts concluded with the latter’s intermediation, and also for those contracts concluded by the agent if so authorised or by the principal, if the party was found by the agent. The agent which is granted exclusivity with respect to specific territory or customers shall also have the right to commission with respect to customers from those territories or with respect to agreements concluded with the allocated customers although the transactions were concluded without the agent’s intermediation services. It shall be noted that an agent may be entitled to commission also after termination of an agency agreement. Namely, the agent shall have the right to a commission for a contract concluded after the termination of the agency agreement if the contract is the result of the agent’s efforts during the agency relationship and was concluded within a reasonable time after the termination of this relationship, or if the third person’s offer to conclude the contract came to the agent or the principal prior to the termination of their relationship and this involves any of the contracts with respect to which the agent would be entitled to a commission during the agency relationship.
An agent shall be entitled to a commission in the amount agreed under the agreement, or in absence of the agreement on the commission, in the amount prescribed under the applicable tariff or (if tariff does not exist) in the amount which is customary in the area where the agent performs the activities for the principal, considering the type of agency transactions (if the agent performs activities in several territories, the customary commission at the place of the agent’s registered office shall be relevant). The agent shall acquire the right to a commission only if the third person performs its part of the obligations deriving from the transaction with the principal. The agent shall not have the right to a commission when it is clear that the contract will not be performed by a third party and the reason for the non-performance is not on the part of the principal. If in such case the commission already paid must be returned to the principal. If the contract between the principal and the third person is being performed through a longer period of time, the agent shall have the right to an appropriate advance on the commission.
It is also worth noting that the calculation period for payment of commission and the invoicing period shall be at least each 3 months (it is not permitted to agree on longer invoicing periods). An agent shall have the right to request the principal to submit an excerpt from the business books on all the transactions entitling the agent to commission and to notify the agent regarding all the circumstances affecting the commission. If the principal refuses the agent’s request or if the agent has doubts over the accuracy of the excerpt, the agent may request that an official auditor inspects the principal’s business books and documents in respect of the figures significant to the commission and report them to the agent (Article 826 of the OZ). The described right of an agent may not be limited or excluded.
According to Article 829 of the OZ the agent holds a statutory lien on all the sums collected from third parties on behalf of the principal as well as on all the principal’s things which are in the agent’s possession and on things which are in the agent’s possession on behalf of the principal; such a lien shall exist as a security for any and all outstanding claims of the agent towards the principal under the agency agreement. Hence, the agent shall not be obliged to deliver to the principal any item on which it holds a statutory lien until all the principal’s outstanding obligations towards the agent are fully satisfied.
In absence of an express contractual provision, the agent is not subject to a post contractual non-compete obligation. According to Article 836 of the OZ, a post contractual non-compete obligation may be agreed for up to two years after termination of the agreement and shall only be valid if agreed in written form and if it relates to the same area, the same persons and the same goods as those stipulated in the agency agreement. Where a contract is terminated for the reasons on the side of the principal, such non-compete obligation shall only be binding upon the agent if the principal paid appropriate goodwill indemnity to the agent upon termination of the relationship and if during the period when the non-compete obligation is binding the principal is paying the agent appropriate monthly compensation in an amount equal to the average monthly commission calculated based on the commission paid over the last five years of the agreement (or throughout the duration of the agreement if it was in force for less than five years). If the agent terminated the contract because of the principal’s culpable behaviour, the agent may, within one month after the termination, declare (by a written notice) that he will not observe the non-compete obligation. All the aforementioned provisions granting rights to the agent are mandatory and may not be deviated from to the detriment of the agent.
It should be noted that according to Slovenian law it is presumed that the employment relationship exists if elements of an employment relationship exist. Therefore, the agent shall not be de facto included in the principal’s organised working process and shall not carry out work in person under instruction and supervision of the principal, but shall remain independent and independently organize its work, working time and working process. Otherwise, it might be presumed that the elements of employment relationship exist between the agent and the principal. If there are elements of an employment relationship in these relationships, such person (agent) could under certain conditions request to be recognised as an employee of the principal, which would, among others, lead to additional payment obligations of the principal towards this person (difference in salary, holiday bonus, other additional payments available to regular employees – for the entire period of their work for the principal).