France – Abrupt termination of contract

2017年9月26日

法国

契约
分销协议
诉讼

It is not only since the days of the Internet that brand manufacturers have had to contend with the fact that original products are offered outside of their authorized sales channels. The problem has since been significantly exacerbated, however. The relevant products are also referred to as gray market products.

The internal market of the European Economic Area makes it possible to exploit certain price advantages – that is, purchasing in one Member State at a price that is lower than in other Member States and selling to the end customer while passing on (or not passing on) the purchasing advantage. This is made possible by the “exhaustion regime”, according to which the sale of products, which at one time were made available in the European Economic Area with the copyright holder’s consent, cannot be prohibited.

Brand manufacturers’ attempts to counter this issue by means of distribution systems may be an effective instrument, but only if all distribution partners adhere to it. If a distribution partner pulls out, trademark owners (at least in Germany) are initially required to contact their distribution partner who is acting contrary to the contract. That is difficult when the distribution channel of the products in question cannot be traced by security systems (such as SKU numbers) beyond any doubt. A right to information against a third party generally does not exist. Thus, neither the distribution system itself nor the suspicion that the products are not of EU origin may be used easily to justify a right to information in selective or exclusive distribution. The Federal Court of Justice, for example, sees no reason to deviate from the exhaustion doctrine when implementing a selective distribution system (Federal Court of Justice, 1 ZR 63/04). In the case of a selective or exclusive distribution system (Federal Court of Justice, I AR 52/10), the burden of proof is reversed. Accordingly, it is initially the brand manufacturer itself that is responsible for providing evidence for its allegation of a non-EU product.

Exceptions are only made where, for example, the SKU numbers were modified, since this makes clarification difficult. In such cases, trademark infringement and at the same time breach of competition law are given by way of exception and it is not possible for the dealer to invoke exhaustion (Federal Court of Justice I ZR 1/98). The deliberate misleading of the authorized dealer by a third party to breach the contract is also recognized as an exception (Federal Court of Justice I ZR 96/04), which regularly is not verifiable, however.

By the way, the sensational December 2017 Coty decision of the Court of Justice of the European Union (CJEU C-230/16) (here you can find more: https://www.legalmondo.com/2017/12/eu-court-justice-allows-online-sales-restrictions-coty-case/) has not changed this basic presumption, either. In its Coty decision, the CJEU in the end confirms the exhaustion priority also and particularly for luxury products by referring to existing case law (specifically ECJ C-59/08).

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There are, however, more options available. As confirmed by the ECJ (ECJ, C-337/95), an exemption from the exhaustion principle already applies when the type of sale may be designed to damage the reputation of the trademark. In the Court’s opinion, this applies to the sale of products at discounters, if such a sale damages the reputation of the products to an extent that their luxurious image and quality is called into question (ECJ, C-59/08). This applies, on the one hand, if other products are sold in the immediate “neighborhood” to the branded product, without meeting the same quality requirements (ECJ, C-337/95) or if the advertising methods are unsuitable (ECJ, C-63/97). Hamburg Regional Court, for example, found that the use of photographs that are unsuitable and detrimental to the luxury image of a brand justifies a prohibition claim (at least with respect to use of the photos) (Hamburg Regional Court, 315 O 339/13). The Federal Court of Justice saw improper handling of the brand in an erroneous and negligent labeling of products (Federal Court of Justice, I ZR 72/11).

Düsseldorf Higher Regional Court has now also followed these CJEU guidelines by prohibiting the sale of high-priced cosmetic products, which are distributed in the framework of a strictly regulated selective distribution system, at a discounter (Düsseldorf Higher Regional Court, I-20 U 113/17). The Court explicitly referenced the CJEU, by repeating its principles and then applying them in the case of the discounter:

“The permanent and extensive sale of the cosmetic products at issue on the online platform www…de is suitable to significantly impair the image of the application brands. The way in which the products are presented there draws the application brands into the mundane and ordinary. As the relevant public is used to from the multitude of Respondent’s conventional self-service department stores, the offering on www…de of everyday products is frequently dominated in the form of particularly low priced own labels, such as Z.’s own label “O.” Respondent’s motto applies here as well. The assortment ranges from food to electronics, household goods, clothing to cosmetics. Since Respondent’s online presence was merged with that of the company “B” that it had acquired, it is moreover not only Respondent that offers its goods for sale on the platform, but also third parties may market goods via the online platform. The portal is designed to be functional and oriented toward products that are on sale. Customers are able to collect PAYBACK points with each purchase and may make use of financing. In some cases, goods are advertised at “instead of prices” and red letters indicate in attention-getting manner what percentage customers will save compared to the original prices. Product consultation does not take place.”

By offering luxury products at random alongside every-day and mass products without any kind of prominent presentation and becoming affordable through financing options, the products would be placed on a level with the other items offered, thereby significantly affecting the prestige value of the products. For this reason, Düsseldorf Higher Regional Court pronounced a complete ban on distribution for the online platform and the department stores.

Conclusion:

Even if the Düsseldorf Higher Regional Court’s decision is not to be considered revolutionary in light of existing CJEU case law, it certainly ensures some impetus in proceeding against gray market dealers, since national courts are now no longer facing the “uncomfortable” hurdle of applying CJEU case law, but rather in the customary fairway of national case law. In principle, Düsseldorf Higher Regional Court case law may not be understood as a blank check, however. Even Düsseldorf Higher Regional Court did not allow a general ban, but rather weighed individually whether the distribution in its concrete form could be prohibited. In the future, it will also be important to work out what in particular will determine the extent of the ban.

The author of this post is Ilja Czernik.

公司可以通过分公司、子公司或电子商务–或间接–通过代理商、分销商、特许经营商或佣金代理商在全球直接销售他们的产品。

德国联邦法院现在首次裁定，佣金代理商也可在合同终止时要求赔偿(2016年7月21日的决定，参考第I ZR 229/15号)。

什么是佣金代理商？

佣金代理商是自营商他们经常受委托以自己的名义为另一家公司（即供应商）的帐户订立交易的任务。它们不同于分销商，因为分销商自己买卖产品，因此本身就承担分销风险（详见Legalmondo中关于德国分销协议的文章和关于“德国”分销商赔款–如何避免的文章）。

针对佣金代理商的新规定是什么？

联邦法院明确–按照为分销商解决问题的判例法–如果符合两个类比要求，也就是如果佣金代理商符合下列条件，则可在合同终止时要求赔偿。

（一）作为商业代理被纳入供应商的销售组织；以及

（二）必须向供应商提供客户数据，使供应商在合约终止后，能够继续从与这些客户的业务中获得实质利益。

关于第二项要求(提供客户数据)，联邦法院指出先决条件是–作为一般规则-符合，因为成文法规定佣金代理商必须提供客户数据(sec.384 para.2 德国商法典）。因此，没有任何具体的合同义务，客户根据法律“属于”供应商。

如果分销涉及“匿名大众业务”（即客户支付现金，销售中介由于客户关系管理措施而不知道客户名称），佣金代理商可能无法提供相应的客户数据。在这种情况下，根据联邦法院，如果佣金代理商提供了“有关销售过程本身”的数据，则应足以使供应商能够估计哪些类型的货物有需求（这与汽车、时装或电子产品等高质量产品的分销要求大不相同）。

双方的义务可以让第三方承办吗？

是的，提供客户数据的义务可以让第三方承办。然而，这种做法目前不会100%安全地将索赔请求排除在外，因为联邦法院没有明确规定，如果供应商仅有实际机会使用客户数据，佣金代理商是否也可以要求赔偿。因此，为了安全起见，还必须排除使用数据的机会（见下面的“实用信息”）。

特许经营商呢？

关于特许经营商作为销售中介人的问题，联邦法院确认，仅仅是顾客的事实连续性不足以导致赔偿要求(从而确认了反对2015年2月5日，对传统烘焙连锁“Kamps”的特许经营人所作的决定。第VII ZR 315/13号）。

实用贴士

保护自营商业代理人的条款也可同样适用于佣金代理商。

关于根据德国法律订立的现存协议：如果符合两项类似要求，终止时的赔偿要求很有可能得到满足。

关于根据德国法律订立的将来的协议，则如下：

一般来说，通过排除佣金代理商提供客户数据的义务，可以避免赔偿要求。但是，应该明确地规定这种排除。或者，为了保险起见，除此之外，供应商可以强制自己在与佣金代理商的合同终止时锁定或删除客户数据。
或者，可以通过选择另外的法律和管辖权来避免赔偿权（考虑到“德国”赔偿要求仍可作为《罗马第一条例》第9条意义上的压倒一切的约束性条款而适用的风险）。
最后，如果佣金代理商在欧洲经济区以外行事，则可通过简单的弃权证书排除赔偿要求（根据类似的申请《德国商法典》92c)。

We have seen in a previous post the advantages of mediation as an alternative dispute resolution method in franchise agreements. From there, what recommendations could we give to make better use of mediation? Although we will have to adapt them to each specific case, the following points could be very useful:

Specifically foresee in the contract a mediation clause as an alternative dispute resolution method. Although the franchisee and franchisor can agree to mediate once the conflict arises without having reflected it in the contract, it will surely be more complicated to do so when both have already initiated the discrepancies. It is preferable, therefore, to do it before: it places the parties in a better predisposition, they will be able to choose the procedure in a better way, as well as the institution, the mediator, the formalities, etc.
If the parties have agreed on a mediation agreement, this may be initiated at the request of only one of them, without having to re-reach an agreement.
The mediation clause is also recommended, because once an application for the initiation of mediation has been agreed upon, the limitations period of the legal actions will be suspended until the termination of the mediation.
By virtue of this agreement and having initiated the mediation, the courts will not be able to hear such controversies during the time in which the mediation takes place, provided that the interested party invokes it.
In the clause, it is convenient to foresee some elements, such as what issues may be the subject of mediation (all or only some of them), the need or not of a previous negotiation, adequate deadlines to avoid that this procedure can be used to delay other ways, the applicable law to mediation and to the agreement reached with it, the competent jurisdiction for the adoption of precautionary measures, where appropriate, or the jurisdiction or arbitration to settle the dispute in case of failure of mediation.
It is true that one of the principles of mediation is its voluntary nature. However, the existence of the clause and being obliged to attend at least one informative session before initiating any judicial procedure can convince of its advantages even the most reticent party.
Include the mediation as an alternative dispute resolution method within the pre-contractual information that the franchisor must deliver to potential franchisees. Although the Spanish norm does not seem to expressly demand that reference be made, this seems an optimal moment to show transparency and the will to solve possible problems in an agile manner. It also predisposes the good understanding, cooperation and good faith of the franchised brand before the beginning of relations.
Appropriately select the mediation institution to which to refer in case of conflict or foreseeing the best way to choose the most appropriate mediator. Currently there are many institutions or professionals that offer guarantees of impartiality. It may be relevant that it is a mediator with specific training, who facilitates the communication and confidence of the parties and, insofar as possible, who can fully understand the nature of the franchise. There are institutions in Spain such as the Signum Foundation (http://fundacionsignum.org/) or MediaICAM of the Madrid Bar Association (https://mediacion.icam.es) that can be good choices.

On the topic of the importance of Mediation in Distribution Agreements, you can check out the recording our webinar “Mediation in International Conflicts”

It is recommended that franchise agreements clearly foresee how to solve and deal with potential conflicts. The relationship between franchisor and franchisee may have some difficulty due, for example, to the absence of specific regulation of its content (at least in Spain) and to the fact that its elements are contained in different pieces of legislation. What I will say in these posts could also be useful for other distribution contracts, or in general collaboration agreements, although I will focus on franchising due to its special characteristics.

Conflicts between franchisees and franchisors can cover multiple legal and commercial aspects: product supplies, brands, know-how, exclusivity and territory, non-competition, promotion and advertising, sales through the Internet … And all this, in a context in which, frequently, both parties want to maintain their collaboration and good relations.

How to face, then, these potential conflicts? A first step is usually the direct negotiation between the parties and their advisers who have the task of being useful to them in this purpose. But this does not always end with a positive result. And the almost natural step if this happens is usually the beginning of a judicial procedure often preceded by a series of previous formal requirements.

However, there is a way that, taking into account the characteristic elements of the franchise contract and the nature of possible conflicts, can be an excellent and privileged alternative method to solve them: mediation. Let’s see why:

In mediation there is no third party that imposes its decision on the conflict. The franchisor and the franchisee solve it by themselves with the help of a professional (the mediator) who, in a neutral and independent way, uses their skills and specifically acquired knowledge (help in identifying the interests of the parties, active listening, legitimacy …) so that both can reach a consensus. The mediator does not advise (the parties can go with their respective advisors), it does not decide or sentence, but it helps that the parties find the solution that most satisfies both: they better than anyone else know the business, its evolution, the aspects perhaps not foreseen in the contract and the future that they want for themselves.
Mediation is a harmonized mode of dispute resolution in the European Union through the Directive on certain aspects of mediation in civil and commercial matters. This allows the parties in different Member States to be familiar with it, therefore it is possible to foresee a unified system in contracts with international parties, and it will be easier to enforce the agreements reached.
Mediation allows, therefore, to satisfy both parties better than the judicial alternative and with more creative solutions that a judge will never be able to apply. Unlike a legal proceeding where one usually wins and another loses, mediation can bring together the interests of franchisees and franchisors and, in this way, both obtain a better response. It allows a less belligerent and more friendly format that can be very useful since in many cases the disputes do not have too much entity to go to court, or refer to non-essential aspects of the relationship, or can be addressed from more global perspectives or with references to objective parameters. In addition, frequently, franchisees and franchisors want to continue maintaining their commercial relationship and, through mediation, resolved the conflict, this will be possible (unthinkable, however, if they had initiated a judicial confrontation).
Mediation is, in principle, voluntary. At any time, the parties can abandon it even in those Member States or conflicts for which it may be mandatory to attend at least to the information session.
It is a method that easily adapts to the characteristics of both parties: it is very flexible with the formalities, and the franchisor and the franchisee are who, with the help of the mediator, design a large part of the procedure to arrive at a solution being able to control its evolution. It also allows a solution that is much more adapted to their specific situation, provides more imaginative solution ideas, allows better dialogue, maintains the relationship, distinguishes facts from opinions or judgments, and allows the parties to return to their business saving energies that would otherwise be devoted to conflict management.
It is a faster procedure than a trial, with a cost that can be assumed and controlled in advance.
Mediation is confidential, so the publicity of the conflict is reduced, avoiding reputation costs or by extending to the rest of the network. What is treated in a mediation procedure cannot be disclosed even in a subsequent judicial proceeding.
Both parties can arrive at a solution that will be binding for them. In addition, even if no agreement is reached, with the mediation the parties are in a better position to continue the relationship and resolve their problems: they have been able to present their points of view, they have been heard and have listened, they have opened dialogue channels, they have been able to show greater flexibility and, in short, they have improved their relations as a requirement to end the conflict and reach agreements.
The degree of compliance with conflicts resolved through mediation is much higher than those imposed by a judge since the agreements are more satisfactory for them and it has been the parties themselves who have decided what to do.
And finally, if the mediation has not worked, the possibility of claiming in the courts remains open.

主要特点

2018年财政法案引入了一个于关于数字交易的新税种（即“网络税”）。

简介:

“网络税”适用于通过电子工具向居住在意大利的企业提供的服务所应缴纳的税；
应税基数是交易价值；
税率为 3%;
当服务提供者每个自然年进行的相关交易超过3000起时，应缴纳网络税；
该税由税务机关向服务接受者征收;
该税种将从2019年1月1日起生效。

纳税人

网络税适用于相关服务（见下）的提供者，无论其是否在意大利居住，也不论交易在何地进行。

应税基数与适用税率

应税基数是交易价值，均相关服务的代价，扣除增值税。适用税率是3%。

最低阙值

当提供者每个自然年进行的相关交易超过3000起时，应缴纳网络税。由此，如果相关交易低于上述阙值，不需要缴纳“网络税”。

适用机制

除非服务提供商在发票（或者与发票一起发送的其他文件）中写出尚未超出最低限额，否则网络税从服务接受者的对价中预扣。

服务接受者应该在支付对价的次月的16日之前，向税务局缴纳网络税。

适用的方法以及纳税申报和付款义务，适用实施条例的规定。

生效日期

虽然规定“网络税”的法律条款已经生效，但本”网络税”将自2019年1月1日起施行。

If you want to develop your distribution network abroad, a network of commercial agents is the easiest way, and France is no exception. Before entering into an agency contract ruled by French law, it is nevertheless advisable to know its main features, which will be discussed in this post.

Definition

A commercial agent is a professional representative who negotiates and eventually concludes contracts in the name of and on behalf of his principal.

The French Commercial Code (Article L134-1) defines a commercial agent precisely as:

«L’agent commercial est défini comme un mandataire qui, à titre de profession indépendante, sans être lié par un contrat de louage de services, est chargé, de façon permanente, de négocier et, éventuellement, de conclure des contrats de vente, d’achat, de location ou de prestation de services, au nom et pour le compte de producteurs, d’industriels de commerçants ou d’autres agents commerciaux.»

«The commercial agent is an agent who, as an independent professional, without being bound by an employment contract, is in a permanent position to negotiate and eventually to enter into contracts for the sale, purchase, rent/hire or performance of service in the name and on behalf of manufacturers, industrialists, traders or other commercial agents.»

The definition shows that the agent is independent: he/she is free to organise his/her own employment activity and business (sole agency, limited company etc.). This notion is fundamental, because the more the agent will be present and active in the organisation of the principal activity, the more the contract will be at risk of being requalified as a VRP (employee contract of sales representative) contract by the courts.

In the spirit of the contractual relationship and in the drafting of the contract itself, one must be very careful not to confuse an agent with a VRP since, according to French law, the latter is considered an employee, with greater rights and compensation for termination of contract.

Requirements

The agent must be registered in the register of commercial agents at the Registry of the Commercial Court at his place of domicile.

Contract form

The written form is not mandatory but strongly recommended. Article L134-2 of the Commercial Code provides that each party may request both the contract and addenda to be in writing.

Execution of the contract – important clauses

Duration: for a fixed period or indefinite.
Fee: a commission freely defined between the parties.
Territory: it is very important to define the territory with precision and avoid wide generic clauses such as “world”.
Exclusive: the clause must specify whether the exclusivity is in relation to the territory and/or on the clientele in a precise manner and if the principal reserves the right to intervene.
Notice of withdrawal (Article L134-11, paragraph 3 of the Commercial Code): 1 month for the first year, 2 months for the second year, 3 months thereafter.

Post-contract – important clauses

Post-contractual non-competition clauses (Article L134-14 of the Commercial Code) must be in written form and limited to a maximum of 2 years post-contract.

The non-competition clauses restriction (territory, customers, products) must not be so restrictive as to prohibit the agent from working after the end of the contract. Therefore customers and products included in the agreement must be competitors of the type of goods subject of the agency contract. Otherwise, the courts will consider the clause as null and non-existent, entitling the agent to claim compensation.

French law does not provide any compensation for compliance with this clause.

After termination of the contract, the agent is entitled to an indemnity for termination as compensation (Article L134-12 of the Commercial Code). It is a rule of public order, therefore, the clause that provides for an exemption of this entitlement will be considered null and non-existent.

The agent has one year to assert this right to severance indemnity.

There is no requirement of keeping it in writing, however, it is advisable to write a notice of receipt as proof of the termination.

The amount of the compensation is equal to two years of commissions (gross) received by the agent. This is to be seen as a maximum measure and it is up to the principal to prove the reason as to why the agent should be entitled to a lower compensation.

In the event of litigation, the courts will at their discretion evaluate the amount of the request of a maximum of two years.

Cases in which compensation is not due:

Assignment of the contract to another agent;
Termination of the contract by the agent;
Serious non-fulfilment of the contract by the agent.

Serious breach of contract can result from the non-fulfilment of clauses that are defined in the contract as important or must be assessed from time to time with the advice of your lawyer.

Focus: the termination of contract due to retirement

The agent is entitled to the indemnity for termination as compensation also when he/she ceases the activity and retires.

French jurisprudence (in particular the jurisprudence of the Court of Cassation), however, requires a more specific check of the reason for the termination of the contract: the agent must not only claim to be entitled to the retirement pension, he should also assert he is not in physical conditions to be able to work anymore.

Which is the competent French court?

Even if the agent is a trading company, the nature of the contract is still civil. By virtue of this, the competent court varies according to the person who brings the claim.

If the agent is the claimant, he can choose between “tribunal de grande instance” and “tribunal de commerce”.

If, on the other hand, the principal is the claimant, he must also begin the claim before the “tribunal de grande instance”.

Long expected by manufacturers of brand-name products, brick-and-mortar-distributors, internet retailers and online platform providers as Amazon, eBay, Zalando, the Court of Justice of the European Union (CJEU) just decided yesterday on 6 December 2017 – its “Santa Claus decision” – that manufacturers may lawfully ban sales via third party platforms.

In a previous Legalmondo post we analysed this dispute (“the Coty case”) just resolved by the CJEU. According to its decision, such platform ban is not necessarily an unlawful restriction of competition under article 101 Treaty on the Functioning of the European Union (“TFEU”): The court has confirmed that selective distribution systems for luxury goods, which shall primarily preserve the goods’ luxury image may comply with European antitrust law.

More specifically, the court decided that platforms bans are lawful, namely that EU law allows restricting online sales in

“a contractual clause, such as that at issue in the present case, which prohibits authorised distributors of a selective distribution network of luxury goods designed, primarily, to preserve the luxury image of those goods from using, in a discernible manner, third-party platforms for internet sales of the goods in question, provided that the following conditions are met: (i) that clause has the objective of preserving the luxury image of the goods in question; (ii) it is laid down uniformly and not applied in a discriminatory fashion; and (iii) it is proportionate in the light of the objective pursued. It will be for the Oberlandesgericht to determine whether those conditions are met.”

(cf. the CJEU’s press release No. 132/2017).

This is the intermediary result of the Coty case as it is now up to the Higher Regional Court of Frankfurt to apply these requirements in the Coty case. Simply put, the question in that case is whether owners of luxury brands may generally or at least partially ban the resale via internet on third-party platforms. The Coty case’s history is quite interesting: The luxury perfume manufacturer Coty’s German subsidiary Coty Germany GmbH (“Coty”) set up a selective distribution network and its distributors may sell via the Internet – but banned to sell via third party platforms which are externally visible as such, i.e. Amazon, eBay, Zalando & Co. The court of first instance decided that such ban of sales via third party platforms was an unlawful restriction of competition. The court of second instance, however, did not see the answer that clear. Instead, the court requested the CJEU to give a preliminary ruling on how European antitrust rules have to be interpreted, namely article 101 TFEU and article 4 lit. b and c of the Vertical Block Exemptions Regulation or “VBER” (decision of 19.04.2016, for details, see the previous post “eCommerce: restrictions on distributors in Germany”). On 30 March 2017, the hearing took place before the CJEU. Coty defended its platform ban, arguing it aimed at protecting the luxury image of brands such as Marc Jacobs, Calvin Klein or Chloe. The distributor Parfümerie Akzente GmbH instead argued that established platforms such as Amazon and eBay already sold various brand-name products, e.g. of L’Oréal. Accordingly, there was no reason for Coty to ban the resale via these marketplaces. Another argument brought forward against the platform ban was that online platforms were important for small and medium-sized enterprises. Indications on how the court could decide appeared on 26 July 2017, with the Advocate General giving his opinion, concluding that platform bans appear possible, provided that the platform ban depends “on the nature of the product, whether it is determined in a uniform fashion and applied without distinction and whether it goes beyond what is necessary” (see the previous post “Distribution online – Platform bans in selective distribution (The Coty case continues)”).

Practical Conclusions:

This “Santa Claus decision” of 6 December 2017 is highly important for all manufacturers of brand-name products, brick-and-mortar-distributors, internet retailers and online platform providers – because it clarifies that manufacturers of brand-name products may ban sales via third party platforms (Amazon, eBay, Zalando and Co.) to ensure the same level of quality of distribution throughout all distribution channels, offline and online.
As a glimpse back in advance: the district court of Amsterdam already on 4 October 2017 decided that Nike’s ban on its selective distributors not to use online platforms as Amazon was a lawful distribution criterion to safeguard Nike’s luxury brand image (case of Nike European Operations Netherlands B.V. vs. the Italy-based retailer Action Sport Soc. Coop, A.R.L., ref. no. C/13/615474 / HA ZA 16-959). More details soon!
The general ban to use price comparison tools as stipulated by the sporting goods manufacturer Asics in its “Distribution System 1.0“ shall be anti-competitive – according to the Bundeskartellamt, as confirmed by the Higher Regional Court of Düsseldorf on 5 April 2017. The last word is, however, still far from being said – see the post “Ban of Price Comparison Tools anti-competitive & void?”. It will be interesting to see how the Coty case’s outcome will influence how to see such bans on price comparison tools.
For further trends in distribution online, see the EU Commission’s Final report on the E-commerce Sector Inquiry and details in the Staff Working Document, „Final report on the E-commerce Sector Inquiry“.
For details on distribution networks and distribution online, please see my articles

“Internetvertrieb in der EU 2018 ff. – Online-Vertriebsvorgaben von Asics über BMW bis Coty”, in: Zeitschrift für Vertriebsrecht2017, 274-281: and
„Plattformverbote im Selektivvertrieb – der EuGH-Vorlagebeschluss des OLG Frankfurt vom 19.4.2016“, in: Zeitschrift für Vertriebsrecht 2016,278–283.

The Coty case is extremely relevant to distribution in Europe because more than 70% of the world’s luxury items are sold here, many of them online now. For further implications on existing and future distribution networks and the respective agreements, stay tuned: we will elaborate this argument on Legalmondo!

Based on our experience in many years advising and representing companies in the commercial distribution (in Spanish jurisdiction but with foreign manufacturers or distributors), the following are the six key essential elements for manufacturers (suppliers) and retailers (distributors) when establishing a distribution relationship.

These ideas are relevant when companies intend to start their commercial relationship but they should not be neglected and verified even when there are already existing contacts.

The signature of the contract

Although it could seem obvious, the signature of a distribution agreement is less common than it might seem. It often happens that along the extended relationship, the corporate structures change and what once was signed with an entity, has not been renewed, adapted, modified or replaced when the situation has been transformed. It is very convenient to have well documented the relationship at every moment of its existence and to be sure that what has been covered legally is also enforceable y the day-to-day commercial relationship. It is advisable this work to be carried out by legal specialists closely with the commercial department of the company. Perfectly drafted clauses from a legal standpoint will be useless if overtaken or not understood by the day-to-day activity. And, of course, no contract is signed as a “mere formality” and then modified by verbal agreements or practices.

The proper choice of contract

If the signature of the distribution contract is important, the choice of the correct type is essential. Many of the conflicts that occur, especially in long-term relationships, begin with the interpretation of the type of relationship that has been signed. Even with a written text (and with an express title), the intention of the parties remains often unclear (and so the agreement). Is the “distributor” really so? Does he buy and resell or there are only sporadic supply relationships? Is there just a representative activity (ie, the distributor is actually an “agent“)? Is there a mixed relationship (sometimes represents, sometimes buys and resells)? The list could continue indefinitely. Even in many of the relationships that currently exist I am sure that the interpretation given by the Supplier and the Distributor could be different.

Monitoring of legal and business relations

If it is quite frequent not to have a clear written contract, it happens in almost all the distribution relationships than once the agreement has been signed, the day-to-day commercial activity modifies what has been agreed. Why commercial relations seem to neglect what has been written in an agreement? It is quite frequent contracts in which certain obligations for distributors are included (reporting on the market, customers, minimum purchases), but which in practice are not respected (it seems complicated, there is a good relationship between the parties, and nobody remembers what was agreed by people no longer working at the company…). However, it is also quite frequent to try to use these (real?) defaults later on when the relationship starts having problems. At that moment, parties try to hide behind these violations to terminate the contracts although these practices were, in a sort of way, accepted as a new procedure. Of course no agreement can last forever and for that reason is highly recommendable a joint and periodical monitoring between the legal adviser (preferably an independent one with the support of the general managers) and the commercial department to take into account new practices and to have a provision in the contractual documents.

Evidences about customers

In distribution contracts, evidences about customers will be essential in case of termination. Parties (mainly the supplier) are quite interested in showing evidences on who (supplier or distributor) procured the customers. Are they a result of the distributor activity or are they obtained as a consequence of the reputation of the trademark? Evidences on customers could simplify or even avoid future conflicts. The importance of the clientele and its possible future activity will be a key element to define the compensation to which the distributor will pretend to be eligible.

Evidences on purchases and sales

Another essential element and quite often forgotten is the justification of purchases to the supplier and subsequent sales by distributors. In any distribution agreement distributors acquire the products and resell them to the final customers. A future compensation to the distributor will consider the difference between the purchase prices and resale prices (the margin). It is therefore advisable to be able to establish the correspondent evidence on such information in order to better prepare a possible claim.

Damages in case of termination of contracts

Similarly, it would be convenient to justify what damages have been suffered as a result of the termination of a contract: has the distributor made investments by indication of the supplier that are still to be amortized? Has the distributor hired new employees for a line of business that have to be dismissed because of the termination of the contract (costs of compensation)? Has the distributor rented new premises signing long-term contracts due to the expectations on the agreement? Please, take into account that the Distributor is an independent trader and, as such, he assumes the risks of his activity. But to the extent he is acting on a distribution network he shall be subject to the directions, suggestions and expectations created by the supplier. These may be relevant to later determine the damages caused by the termination of the contract.

Marika Devaux

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2017年9月21日

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It is not only since the days of the Internet that brand manufacturers have had to contend with the fact that original products are offered outside of their authorized sales channels. The problem has since been significantly exacerbated, however. The relevant products are also referred to as gray market products.

The internal market of the European Economic Area makes it possible to exploit certain price advantages – that is, purchasing in one Member State at a price that is lower than in other Member States and selling to the end customer while passing on (or not passing on) the purchasing advantage. This is made possible by the “exhaustion regime”, according to which the sale of products, which at one time were made available in the European Economic Area with the copyright holder’s consent, cannot be prohibited.

Brand manufacturers’ attempts to counter this issue by means of distribution systems may be an effective instrument, but only if all distribution partners adhere to it. If a distribution partner pulls out, trademark owners (at least in Germany) are initially required to contact their distribution partner who is acting contrary to the contract. That is difficult when the distribution channel of the products in question cannot be traced by security systems (such as SKU numbers) beyond any doubt. A right to information against a third party generally does not exist. Thus, neither the distribution system itself nor the suspicion that the products are not of EU origin may be used easily to justify a right to information in selective or exclusive distribution. The Federal Court of Justice, for example, sees no reason to deviate from the exhaustion doctrine when implementing a selective distribution system (Federal Court of Justice, 1 ZR 63/04). In the case of a selective or exclusive distribution system (Federal Court of Justice, I AR 52/10), the burden of proof is reversed. Accordingly, it is initially the brand manufacturer itself that is responsible for providing evidence for its allegation of a non-EU product.

Exceptions are only made where, for example, the SKU numbers were modified, since this makes clarification difficult. In such cases, trademark infringement and at the same time breach of competition law are given by way of exception and it is not possible for the dealer to invoke exhaustion (Federal Court of Justice I ZR 1/98). The deliberate misleading of the authorized dealer by a third party to breach the contract is also recognized as an exception (Federal Court of Justice I ZR 96/04), which regularly is not verifiable, however.

By the way, the sensational December 2017 Coty decision of the Court of Justice of the European Union (CJEU C-230/16) (here you can find more: https://www.legalmondo.com/2017/12/eu-court-justice-allows-online-sales-restrictions-coty-case/) has not changed this basic presumption, either. In its Coty decision, the CJEU in the end confirms the exhaustion priority also and particularly for luxury products by referring to existing case law (specifically ECJ C-59/08).

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There are, however, more options available. As confirmed by the ECJ (ECJ, C-337/95), an exemption from the exhaustion principle already applies when the type of sale may be designed to damage the reputation of the trademark. In the Court’s opinion, this applies to the sale of products at discounters, if such a sale damages the reputation of the products to an extent that their luxurious image and quality is called into question (ECJ, C-59/08). This applies, on the one hand, if other products are sold in the immediate “neighborhood” to the branded product, without meeting the same quality requirements (ECJ, C-337/95) or if the advertising methods are unsuitable (ECJ, C-63/97). Hamburg Regional Court, for example, found that the use of photographs that are unsuitable and detrimental to the luxury image of a brand justifies a prohibition claim (at least with respect to use of the photos) (Hamburg Regional Court, 315 O 339/13). The Federal Court of Justice saw improper handling of the brand in an erroneous and negligent labeling of products (Federal Court of Justice, I ZR 72/11).

Düsseldorf Higher Regional Court has now also followed these CJEU guidelines by prohibiting the sale of high-priced cosmetic products, which are distributed in the framework of a strictly regulated selective distribution system, at a discounter (Düsseldorf Higher Regional Court, I-20 U 113/17). The Court explicitly referenced the CJEU, by repeating its principles and then applying them in the case of the discounter:

“The permanent and extensive sale of the cosmetic products at issue on the online platform www…de is suitable to significantly impair the image of the application brands. The way in which the products are presented there draws the application brands into the mundane and ordinary. As the relevant public is used to from the multitude of Respondent’s conventional self-service department stores, the offering on www…de of everyday products is frequently dominated in the form of particularly low priced own labels, such as Z.’s own label “O.” Respondent’s motto applies here as well. The assortment ranges from food to electronics, household goods, clothing to cosmetics. Since Respondent’s online presence was merged with that of the company “B” that it had acquired, it is moreover not only Respondent that offers its goods for sale on the platform, but also third parties may market goods via the online platform. The portal is designed to be functional and oriented toward products that are on sale. Customers are able to collect PAYBACK points with each purchase and may make use of financing. In some cases, goods are advertised at “instead of prices” and red letters indicate in attention-getting manner what percentage customers will save compared to the original prices. Product consultation does not take place.”

By offering luxury products at random alongside every-day and mass products without any kind of prominent presentation and becoming affordable through financing options, the products would be placed on a level with the other items offered, thereby significantly affecting the prestige value of the products. For this reason, Düsseldorf Higher Regional Court pronounced a complete ban on distribution for the online platform and the department stores.

Conclusion:

Even if the Düsseldorf Higher Regional Court’s decision is not to be considered revolutionary in light of existing CJEU case law, it certainly ensures some impetus in proceeding against gray market dealers, since national courts are now no longer facing the “uncomfortable” hurdle of applying CJEU case law, but rather in the customary fairway of national case law. In principle, Düsseldorf Higher Regional Court case law may not be understood as a blank check, however. Even Düsseldorf Higher Regional Court did not allow a general ban, but rather weighed individually whether the distribution in its concrete form could be prohibited. In the future, it will also be important to work out what in particular will determine the extent of the ban.

The author of this post is Ilja Czernik.

公司可以通过分公司、子公司或电子商务–或间接–通过代理商、分销商、特许经营商或佣金代理商在全球直接销售他们的产品。

德国联邦法院现在首次裁定，佣金代理商也可在合同终止时要求赔偿(2016年7月21日的决定，参考第I ZR 229/15号)。

什么是佣金代理商？

佣金代理商是自营商他们经常受委托以自己的名义为另一家公司（即供应商）的帐户订立交易的任务。它们不同于分销商，因为分销商自己买卖产品，因此本身就承担分销风险（详见Legalmondo中关于德国分销协议的文章和关于“德国”分销商赔款–如何避免的文章）。

针对佣金代理商的新规定是什么？

联邦法院明确–按照为分销商解决问题的判例法–如果符合两个类比要求，也就是如果佣金代理商符合下列条件，则可在合同终止时要求赔偿。

（一）作为商业代理被纳入供应商的销售组织；以及

（二）必须向供应商提供客户数据，使供应商在合约终止后，能够继续从与这些客户的业务中获得实质利益。

关于第二项要求(提供客户数据)，联邦法院指出先决条件是–作为一般规则-符合，因为成文法规定佣金代理商必须提供客户数据(sec.384 para.2 德国商法典）。因此，没有任何具体的合同义务，客户根据法律“属于”供应商。

如果分销涉及“匿名大众业务”（即客户支付现金，销售中介由于客户关系管理措施而不知道客户名称），佣金代理商可能无法提供相应的客户数据。在这种情况下，根据联邦法院，如果佣金代理商提供了“有关销售过程本身”的数据，则应足以使供应商能够估计哪些类型的货物有需求（这与汽车、时装或电子产品等高质量产品的分销要求大不相同）。

双方的义务可以让第三方承办吗？

是的，提供客户数据的义务可以让第三方承办。然而，这种做法目前不会100%安全地将索赔请求排除在外，因为联邦法院没有明确规定，如果供应商仅有实际机会使用客户数据，佣金代理商是否也可以要求赔偿。因此，为了安全起见，还必须排除使用数据的机会（见下面的“实用信息”）。

特许经营商呢？

关于特许经营商作为销售中介人的问题，联邦法院确认，仅仅是顾客的事实连续性不足以导致赔偿要求(从而确认了反对2015年2月5日，对传统烘焙连锁“Kamps”的特许经营人所作的决定。第VII ZR 315/13号）。

实用贴士

保护自营商业代理人的条款也可同样适用于佣金代理商。

关于根据德国法律订立的现存协议：如果符合两项类似要求，终止时的赔偿要求很有可能得到满足。

关于根据德国法律订立的将来的协议，则如下：

一般来说，通过排除佣金代理商提供客户数据的义务，可以避免赔偿要求。但是，应该明确地规定这种排除。或者，为了保险起见，除此之外，供应商可以强制自己在与佣金代理商的合同终止时锁定或删除客户数据。
或者，可以通过选择另外的法律和管辖权来避免赔偿权（考虑到“德国”赔偿要求仍可作为《罗马第一条例》第9条意义上的压倒一切的约束性条款而适用的风险）。
最后，如果佣金代理商在欧洲经济区以外行事，则可通过简单的弃权证书排除赔偿要求（根据类似的申请《德国商法典》92c)。

We have seen in a previous post the advantages of mediation as an alternative dispute resolution method in franchise agreements. From there, what recommendations could we give to make better use of mediation? Although we will have to adapt them to each specific case, the following points could be very useful:

Specifically foresee in the contract a mediation clause as an alternative dispute resolution method. Although the franchisee and franchisor can agree to mediate once the conflict arises without having reflected it in the contract, it will surely be more complicated to do so when both have already initiated the discrepancies. It is preferable, therefore, to do it before: it places the parties in a better predisposition, they will be able to choose the procedure in a better way, as well as the institution, the mediator, the formalities, etc.
If the parties have agreed on a mediation agreement, this may be initiated at the request of only one of them, without having to re-reach an agreement.
The mediation clause is also recommended, because once an application for the initiation of mediation has been agreed upon, the limitations period of the legal actions will be suspended until the termination of the mediation.
By virtue of this agreement and having initiated the mediation, the courts will not be able to hear such controversies during the time in which the mediation takes place, provided that the interested party invokes it.
In the clause, it is convenient to foresee some elements, such as what issues may be the subject of mediation (all or only some of them), the need or not of a previous negotiation, adequate deadlines to avoid that this procedure can be used to delay other ways, the applicable law to mediation and to the agreement reached with it, the competent jurisdiction for the adoption of precautionary measures, where appropriate, or the jurisdiction or arbitration to settle the dispute in case of failure of mediation.
It is true that one of the principles of mediation is its voluntary nature. However, the existence of the clause and being obliged to attend at least one informative session before initiating any judicial procedure can convince of its advantages even the most reticent party.
Include the mediation as an alternative dispute resolution method within the pre-contractual information that the franchisor must deliver to potential franchisees. Although the Spanish norm does not seem to expressly demand that reference be made, this seems an optimal moment to show transparency and the will to solve possible problems in an agile manner. It also predisposes the good understanding, cooperation and good faith of the franchised brand before the beginning of relations.
Appropriately select the mediation institution to which to refer in case of conflict or foreseeing the best way to choose the most appropriate mediator. Currently there are many institutions or professionals that offer guarantees of impartiality. It may be relevant that it is a mediator with specific training, who facilitates the communication and confidence of the parties and, insofar as possible, who can fully understand the nature of the franchise. There are institutions in Spain such as the Signum Foundation (http://fundacionsignum.org/) or MediaICAM of the Madrid Bar Association (https://mediacion.icam.es) that can be good choices.

On the topic of the importance of Mediation in Distribution Agreements, you can check out the recording our webinar “Mediation in International Conflicts”

It is recommended that franchise agreements clearly foresee how to solve and deal with potential conflicts. The relationship between franchisor and franchisee may have some difficulty due, for example, to the absence of specific regulation of its content (at least in Spain) and to the fact that its elements are contained in different pieces of legislation. What I will say in these posts could also be useful for other distribution contracts, or in general collaboration agreements, although I will focus on franchising due to its special characteristics.

Conflicts between franchisees and franchisors can cover multiple legal and commercial aspects: product supplies, brands, know-how, exclusivity and territory, non-competition, promotion and advertising, sales through the Internet … And all this, in a context in which, frequently, both parties want to maintain their collaboration and good relations.

How to face, then, these potential conflicts? A first step is usually the direct negotiation between the parties and their advisers who have the task of being useful to them in this purpose. But this does not always end with a positive result. And the almost natural step if this happens is usually the beginning of a judicial procedure often preceded by a series of previous formal requirements.

However, there is a way that, taking into account the characteristic elements of the franchise contract and the nature of possible conflicts, can be an excellent and privileged alternative method to solve them: mediation. Let’s see why:

In mediation there is no third party that imposes its decision on the conflict. The franchisor and the franchisee solve it by themselves with the help of a professional (the mediator) who, in a neutral and independent way, uses their skills and specifically acquired knowledge (help in identifying the interests of the parties, active listening, legitimacy …) so that both can reach a consensus. The mediator does not advise (the parties can go with their respective advisors), it does not decide or sentence, but it helps that the parties find the solution that most satisfies both: they better than anyone else know the business, its evolution, the aspects perhaps not foreseen in the contract and the future that they want for themselves.
Mediation is a harmonized mode of dispute resolution in the European Union through the Directive on certain aspects of mediation in civil and commercial matters. This allows the parties in different Member States to be familiar with it, therefore it is possible to foresee a unified system in contracts with international parties, and it will be easier to enforce the agreements reached.
Mediation allows, therefore, to satisfy both parties better than the judicial alternative and with more creative solutions that a judge will never be able to apply. Unlike a legal proceeding where one usually wins and another loses, mediation can bring together the interests of franchisees and franchisors and, in this way, both obtain a better response. It allows a less belligerent and more friendly format that can be very useful since in many cases the disputes do not have too much entity to go to court, or refer to non-essential aspects of the relationship, or can be addressed from more global perspectives or with references to objective parameters. In addition, frequently, franchisees and franchisors want to continue maintaining their commercial relationship and, through mediation, resolved the conflict, this will be possible (unthinkable, however, if they had initiated a judicial confrontation).
Mediation is, in principle, voluntary. At any time, the parties can abandon it even in those Member States or conflicts for which it may be mandatory to attend at least to the information session.
It is a method that easily adapts to the characteristics of both parties: it is very flexible with the formalities, and the franchisor and the franchisee are who, with the help of the mediator, design a large part of the procedure to arrive at a solution being able to control its evolution. It also allows a solution that is much more adapted to their specific situation, provides more imaginative solution ideas, allows better dialogue, maintains the relationship, distinguishes facts from opinions or judgments, and allows the parties to return to their business saving energies that would otherwise be devoted to conflict management.
It is a faster procedure than a trial, with a cost that can be assumed and controlled in advance.
Mediation is confidential, so the publicity of the conflict is reduced, avoiding reputation costs or by extending to the rest of the network. What is treated in a mediation procedure cannot be disclosed even in a subsequent judicial proceeding.
Both parties can arrive at a solution that will be binding for them. In addition, even if no agreement is reached, with the mediation the parties are in a better position to continue the relationship and resolve their problems: they have been able to present their points of view, they have been heard and have listened, they have opened dialogue channels, they have been able to show greater flexibility and, in short, they have improved their relations as a requirement to end the conflict and reach agreements.
The degree of compliance with conflicts resolved through mediation is much higher than those imposed by a judge since the agreements are more satisfactory for them and it has been the parties themselves who have decided what to do.
And finally, if the mediation has not worked, the possibility of claiming in the courts remains open.

主要特点

2018年财政法案引入了一个于关于数字交易的新税种（即“网络税”）。

简介:

“网络税”适用于通过电子工具向居住在意大利的企业提供的服务所应缴纳的税；
应税基数是交易价值；
税率为 3%;
当服务提供者每个自然年进行的相关交易超过3000起时，应缴纳网络税；
该税由税务机关向服务接受者征收;
该税种将从2019年1月1日起生效。

纳税人

网络税适用于相关服务（见下）的提供者，无论其是否在意大利居住，也不论交易在何地进行。

应税基数与适用税率

应税基数是交易价值，均相关服务的代价，扣除增值税。适用税率是3%。

最低阙值

当提供者每个自然年进行的相关交易超过3000起时，应缴纳网络税。由此，如果相关交易低于上述阙值，不需要缴纳“网络税”。

适用机制

除非服务提供商在发票（或者与发票一起发送的其他文件）中写出尚未超出最低限额，否则网络税从服务接受者的对价中预扣。

服务接受者应该在支付对价的次月的16日之前，向税务局缴纳网络税。

适用的方法以及纳税申报和付款义务，适用实施条例的规定。

生效日期

虽然规定“网络税”的法律条款已经生效，但本”网络税”将自2019年1月1日起施行。

If you want to develop your distribution network abroad, a network of commercial agents is the easiest way, and France is no exception. Before entering into an agency contract ruled by French law, it is nevertheless advisable to know its main features, which will be discussed in this post.

Definition

A commercial agent is a professional representative who negotiates and eventually concludes contracts in the name of and on behalf of his principal.

The French Commercial Code (Article L134-1) defines a commercial agent precisely as:

«L’agent commercial est défini comme un mandataire qui, à titre de profession indépendante, sans être lié par un contrat de louage de services, est chargé, de façon permanente, de négocier et, éventuellement, de conclure des contrats de vente, d’achat, de location ou de prestation de services, au nom et pour le compte de producteurs, d’industriels de commerçants ou d’autres agents commerciaux.»

«The commercial agent is an agent who, as an independent professional, without being bound by an employment contract, is in a permanent position to negotiate and eventually to enter into contracts for the sale, purchase, rent/hire or performance of service in the name and on behalf of manufacturers, industrialists, traders or other commercial agents.»

The definition shows that the agent is independent: he/she is free to organise his/her own employment activity and business (sole agency, limited company etc.). This notion is fundamental, because the more the agent will be present and active in the organisation of the principal activity, the more the contract will be at risk of being requalified as a VRP (employee contract of sales representative) contract by the courts.

In the spirit of the contractual relationship and in the drafting of the contract itself, one must be very careful not to confuse an agent with a VRP since, according to French law, the latter is considered an employee, with greater rights and compensation for termination of contract.

Requirements

The agent must be registered in the register of commercial agents at the Registry of the Commercial Court at his place of domicile.

Contract form

The written form is not mandatory but strongly recommended. Article L134-2 of the Commercial Code provides that each party may request both the contract and addenda to be in writing.

Execution of the contract – important clauses

Duration: for a fixed period or indefinite.
Fee: a commission freely defined between the parties.
Territory: it is very important to define the territory with precision and avoid wide generic clauses such as “world”.
Exclusive: the clause must specify whether the exclusivity is in relation to the territory and/or on the clientele in a precise manner and if the principal reserves the right to intervene.
Notice of withdrawal (Article L134-11, paragraph 3 of the Commercial Code): 1 month for the first year, 2 months for the second year, 3 months thereafter.