31

.

12

.

86

Official

Journal

of

the

European

Communities

No

L

382

/

17

COUNCIL

DIRECTIVE

of

18

December

1986

on

the

coordination

of

the

laws

of

the

Member

States

relating

to

self-employed

commercial

agents

(

86

/

653

/

EEC

)

already

made

,

when

harmonizing

the

laws

of

the

Member

States

relating to

commercial

agents

;

Whereas

additional

transitional

periods

should

be

allowed

for

certain

Member

States

which

have

to

make

a

particular

effort

to

adapt

their

regulations

,

especially

those

concerning

indemnity

for

termination

of

contract

between

the

principal

and

the

commercial

agent

,

to

the

requirements

of

this

Directive

,

HAS

ADOPTED

THIS

DIRECTIVE

:

CHAPTER

I

Scope

THE

COUNCIL

OF

THE

EUROPEAN

COMMUNITIES

,

Having

regard

to

the

Treaty

establishing

the

European

Economic

Community

,

and

in

particular

Articles

57

(

2

)

and

100

thereof

,

Having

regard

to

the

proposal

from

the

Commission

(

J

),

Having

regard

to

the

opinion

of

the

European

Parliament

(

2

),

Having

regard

to

the

opinion

of

the

Economic

and

Social

Committee

(

3

),

Whereas

the

restrictions

on

the

freedom

of

establishment

and

the

freedom

to

provide

services

in

respect

of

activities

of

intermediaries

in

commerce

,

industry

and

small

craft

industries

were

abolished

by

Directive

64

/

224

/

EEC

(

4

);

Whereas

the

differences

in

national

laws

concerning

commercial

representation

substantially

affect

the

conditions

of

competition

and

the

carrying-on

of

that

activity

within

the

Community

and

are

detrimental

both

to

the

protection

available

to

commercial

agents

vis-ci-vis

their

principals

and

to

the

security

of

commercial

transactions

;

whereas

moreover

those

differences

are

such

as

to

inhibit

substantially

the

conclusion

and

operation

of

commercial

representation

contracts

where

principal

and

commercial

agent

are

established

in

different

Member

States

;

Whereas

trade

in

goods

between

Member

States

should

be

carried

on

under

conditions

which

are

similar

to

those

of

a

single

market

,

and

this

necessitates

approximation

of

the

legal

systems

of

the

Member

States

to

the

extent

required

for

the

proper

functioning

of

the

common

market

;

whereas

in

this

regard

the

rules

concerning

conflict

of

laws

do

not

,

in

the

matter

of

commercial

representation

,

remove

the

inconsistencies

referred

to

above

,

nor

would

they

even

if

they

were

made

uniform

,

and

accordingly

the

proposed

harmonization

is

necessary

notwithstanding

the

existence

of

those

rules

;

Whereas

in

this

regard

the

legal

relationship

between

commercial

agent

and

principal

must

be

given

priority

;

Whereas

it

is

appropriate

to

be

guided

by

the

principles

of

Article

117

of

the

Treaty

and

to

maintain

improvements

Article

1

1

.

The

harmonization

measures

prescribed

by

this

Directive

shall

apply

to

the

laws

,

regulations

and

administrative

provisions

of

the

Member

States

governing

the

relations

between

commercial

agents

and

their

principals

.

2

.

For

the

purposes

of

this

Directive

,

'

commercial

agent

'

shall

mean

a

self-employed

intermediary

who

has

continuing

authority

to

negotiate

the

sale

or

the

purchase

of

goods

on

behalf

of

another

person

,

hereinafter

called

the

'

principal

',

or

to

negotiate

and

conclude

such

transactions

on

behalf

of

and

in

the

name

of

that

principal

.

3

.

A

commercial

agent

shall

be

understood

within

the

meaning

of

this

Directive

as

not

including

in

particular

:

—

a

person

who

,

in

his

capacity

as

a{i

officer

,

is

empowered

to

enter

into

commitments

binding

on

a

company

or

association

,

—

a

partner

who

is

lawfully

authorized

to

enter

into

commitments

binding

on

his

partners

,

—

a

receiver

,

a

receiver

and

manager

,

a

liquidator

or

a

trustee

in

bankruptcy

.

(')

OJ

No

C

13

,

18

.

1

.

1977

,

p

.

2

;

OJ

No

C

56

,

2

.

3

.

1979

,

p

.

5

.

Article

2

1

.

This

Directive

shall

not

apply

to

:

—

commercial

agents

whose

activities

are

unpaid

,

(

2

)

OJ

No

C

239

,

9

.

10

.

1978

,

p.

17

.

(

3

)

OJ

No

C

59

,

8

.

3

.

1978

,

p.

31

.

(

4

)

OJ

No

56

,

4

.

4

.

1964

,

p

.

869

/

64

.