Если в качестве применимого к агентскому контракту права избрано бельгийское право, при разработке контракта и согласовании его условий необходимо учитывать положения Закона о коммерческих агентских соглашениях
ALBERT II, King of the Belgians.
We greet all those present now and in the future.
The Chambers have adopted and We assent to the following.
Article 1. The commercial agency agreement is an agreement whereby one party, the commercial agent, is charged by the other party, the principal, without the latter exercising authority over it, on a permanent basis and for a remuneration, with negotiating and possibly concluding business transactions in the name and for the account of the principal.
The commercial agent organises its activities at its own discretion and is in control of its time.
Article 2. In the third paragraph of article 4 of the act of 3 July 1978 concerning contracts of employment the words "in the sense of the commercial agency agreements act" are inserted after the words "works contract".
Article 3. The present act is not applicable to:
1E agreements concluded with commercial agents which do not perform their activities as an intermediary on a regular basis;
2E agreements concluded by insurers, credit institutions and companies listed on the stock exchange with their respective agents;
3E agreements concluded by commercial agents in so far as they are active at a stock exchange, at other stock markets and markets for other financial instruments or at futures exchanges in goods and commodities.
Article 4. The commercial agency agreement is concluded for a definite or indefinite period of time.
The agency agreement is concluded for an indefinite period of time when it has not been laid down in writing or, if it has been laid down in writing, its duration has not been determined. An agreement concluded for a definite period of time and which is renewed after expiration of such period shall be deemed to be an agreement for an indefinite period of time on conclusion thereof.
Article 5. Notwithstanding any clause in contravention thereof, either party may obtain from the other party a signed document stating the contents of the agency agreement, including subsequent amendments.
Article 6. The commercial agent must protect the interests of the principal and act in a loyal manner and in good faith.
In particular the commercial agent must:
1E dedicate itself appropriately to negotiating and, as the case may be, concluding the business transactions with which it is charged;
2E provide to the principal all the information required at its disposal;
3E act in conformity with the reasonable instructions given to it by the principal.
Article 7. Except for a clause in contravention thereof, for performing its duties the commer5cial agent may engage subagents paid by it acting under its responsibility and of which it becomes the principal.
Article 8. In its relationship with the commercial agent the principal must act in a loyal manner and in good faith.
In particular the principal must:
1E put the documentation required concerning the relevant business transactions at the commercial agent?s disposal;
2E provide to the commercial agent all the information required for performing the agency agreement, in particular alert the commercial agent with reasonable notice when it foresees that the volume of the business will be significantly smaller than the commercial agent could have normally expected.
Furthermore, the principal shall inform the commercial agent within a reasonable period of time of its acceptance, refusal or non-execution of a transaction which the commercial agent has negotiated.
Article 9. The remuneration of the commercial agent consists of either a fixed sum or commission, of partly of a fixed sum and partly of commission.
All elements of the remuneration varying in accordance with the number of transactions or the value thereof shall be deemed to constitute commission in the sense of the present act.
If the commercial agent?s remuneration does not consist in part or in full of commission, articles 10 to 16 inclusive are not applicable.
Article 10. For a transaction concluded during the term of the agency agreement the commercial agent shall be entitled to commission:
1E if the transaction has been concluded owing to its action;
2E or, if the transaction has been concluded with a third party which it had acquired as a customer earlier for similar transactions;
3E or, if it has been agreed that the commercial agent shall act only in a certain geographical area or among a certain group of persons and the transaction was concluded with a customer established in such area or belonging to such group.
Article 11. For a transaction concluded after termination of the agency agreement the commercial agent is entitled to commission:
1E if the transaction is concluded mainly owing to activities performed by it during the term of the agency agreement and the transaction has been concluded within a period of six months calculated from the termination of the agreement;
2E or if, in conformity with the conditions referred to in article 10, the order from the third party has been received by the principal or by the commercial agent prior to the termination of the agency agreement.
Article 12. The commercial agent is not entitled to the commission referred to in article 10 if, pursuant to article 11, such commission is payable to the preceding commercial agent, unless it ensues from the circumstances that it would be fair to divide the commission between the commercial agents.
Article 13. The commission falls due as soon as and in so far as one of the following circumstances arises:
1E the principal has performed the contract or, pursuant to the contract with the third party, should have fulfilled its contractual obligations;
2E the third party has fulfilled its contractual obligations.
The commission falls due at the latest when the third party has or should have performed its share of the contract if the principal had performed its share.
The commission is paid at the latest on the last day of the month following the calendar quarter in which it has fallen due.
The provisions of second and third paragraph must not be derogated from to the detriment of the commercial agent.
Article 14. Only in the following cases parties may agree that the right to a commission as provided in articles 10 and 11 is invalidated:
1E if and in so far as it has been established that the third party does not fulfil its obligations, except if such non-performance may result from circumstances for which the principal is to blame;
2E if performance has become impossible without such being attributable to the principal;
3E if performance of the contract cannot be demanded in reason from the principal, particular if due to the action of a third party there are weighty reasons justifying non-performance by the principal.
In all cases referred to in this article the commission already received by the commercial agent shall be paid back.
Article 15. When the agency agreement is concluded parties freely determine the commission percentage. They may agree on different percentages, in accordance with the categories of the customers visited, the nature of the products distributed or services provided and the role played by the commercial agent in realising the transaction. They are also free to determine a special percentage for certain exceedingly important or delicate transactions.
If the agreement does not contain any indication concerning commission percentages and if no single element derived from the relationship between the parties makes it possible to know their implicit wish on this subject, the percentage is applied which is customary for transactions of a similar nature in the economic sector of the location where the commercial agent performs its activities. Failing such customs, the commercial agent shall be entitled to a fair percentage, taking into account all elements related to the transaction.
Unless otherwise agreed upon, the commercial agent`s commissions are calculated on the basis of the price invoiced to the customer, without deduction of additional costs, such as the cost of packaging, carriage, insurance expenses, except in case they are invoiced separately, however excluding taxes, customs charges and other levies.
The loyalty discounts, refunds and discounts unilaterally granted by the principal to the customer shall not be excluded in any case from the calculation basis for the agent`s commission.
Any unilateral modification of the percentage originally agreed upon or the percentages originally agreed upon during performance of the agreement shall constitute an act tantamount to rescission of the agreement. Taking the circumstances into account, the court may however interpret unconditional acceptance, during a relatively long period, by the commercial agent of commissions calculated on the basis of a reduced percentage as implicit agreement to the modification thus applied.
Article 16. The principal shall provide to the commercial agent a statement of the commissions payable, at the latest on the last day of the month following the calendar quarter in which the commissions have fallen due. Said statement contains all relevant details on the basis of which the commissions were calculated.
The commercial agent may demand that all details at the principal`s disposal are provided to it, in particular extracts from the accounts, if required by the agent for verifying the amount of commissions payable to it.
The provisions of first and second paragraph must not be derogated from to the detriment of the commercial agent.
Article 17. If the remuneration partly or fully consists of a fixed sum, such sum is paid out on a monthly basis, except if otherwise agreed upon.
Article 18. & 1. If the commercial agency agreement has been concluded for an indefinite period of time or for a definite period of time with the option of premature termination, either party shall have the right to terminate the agreement observing a period of notice.
The period of notice shall be one month during the first year of the agreement. After the first year the period of notice shall be increased by one month for each additional year commenced, said period not exceeding six months and without prejudice to the provisions contained in the third section. The parties are not permitted to agree upon a shorter period of notice.
If the parties agree upon a longer period of notice than that referred to in the second paragraph, the period of notice to be observed by the principal must not be shorter than that imposed on the commercial agent.
& 2. Notice of termination shall be given by delivering to the other party a document stating the commencement and the duration of the period of notice. Notice may also be given by a registered letter, which becomes effective on the third working day from the date of despatch, or by bailiff`s writ. Except if stipulated to the contrary, the expiration of a period of notice shall coincide with the end of a calendar month.
& 3. The party terminating the agreement without invoking any of the reasons provided in article 19, first paragraph or without observing the period of notice laid down in & 1, second section, shall be obliged to pay to the other party a termination indemnity equal to the indemnity which is customary and is in accordance with either the duration of the period of notice or the remaining part of such period.
If the remuneration of the commercial agent fully or partly consists of commissions, the indemnity shall be calculated on the basis of the monthly average of the commissions earned during the twelve months preceding termination of the agreement or, as the case may be, during the months preceding termination of the agreement.
Article 19. Without prejudice to any damages, either party may terminate the agreement without giving notice of termination or prior to expiration of the period of notice, if due to exceptional circumstances any professional co-operation between the principal and the commercial agent has become permanently impossible or if the other party is seriously in default in fulfilling its obligations.
The agreement can no longer be terminated without giving notice of termination or prior to expiration of the period of notice if the fact justifying termination has been known to the party invoking it for at least seven working days.
Only the exceptional circumstances or the serious failings of which notice has been given by bailiff`s writ or by registered letter despatched within seven working days from the termination may be invoked for justifying the termination without giving notice or prior to expiration of the period of notice.
Notwithstanding any clause in contravention thereof, the present article cannot be derogated from to the detriment of the commercial agent prior to termination of the agreement.
Article 20. After termination of the agreement the commercial agent is entitled to an eviction indemnity if it has acquired new customers for the principal or if it has considerably extended transactions with existing customers, in so far as this may still yield substantial gains to the principal.
If the agreement contains a non-competition clause, the principal shall be deemed still to obtain substantial gains, subject to evidence to the contrary.
The sum of said eviction indemnity shall be determined taking into account both the extended business transactions realised and the acquisition of customers.
The eviction indemnity shall not exceed the amount of one year`s remuneration calculated on the basis of the average remuneration in the preceding five years or, if the term of the agreement was less than five years, on the basis of the average remuneration in the preceding years.
The eviction indemnity shall not be payable:
1E if the principal has terminated the agreement for the reason of a serious default for which the agent is to blame as provided in article 19, first paragraph;
2E if the commercial agent has terminated the agreement, unless termination is due to a reason for which the principal is to blame, as provided in article 19, first paragraph, or is due to age, disablement or illness of the commercial agent on the grounds of which it can no longer be demanded from it in reason to continue its activities;
3E if the commercial agent or its heirs, in conformity with an agreement with the principal, transfer their rights and obligations ensuing from the agency agreement to a third party.
The commercial agent shall forfeit its right to an eviction indemnity if it has not notified the principal of its intention to exercise its rights within one year from termination of the agreement.
Article 21. In so far as the commercial agent is entitled to the eviction indemnity referred to in article 20 and the amount of such indemnity does not fully cover the loss suffered, the commercial agent, provided that it proves the actual extent of the alleged loss, may obtain damages in addition to such indemnity amounting to the difference between the amount of the actual loss suffered and the amount of the indemnity.
Article 22. The right to the indemnities referred to in articles 20 and 21 is also created if the agreement is terminated by the decease of the commercial agent.
Article 23. Prior to termination of the agreement parties shall not derogate from the provisions in articles 20, 21 and 22 to the detriment of the commercial agent.
Article 24. & 1. The agency agreement may contain a non-competition clause.
A non-competition clause is only effective if:
1E it has been laid down in writing;
2E it is applicable to the type of transactions with which the commercial agent was charged;
3E it is limited to the geographical area or to the group of persons and the geographical area which had been entrusted to the commercial agent;
4E its applicability does not exceed a period of six months from termination of the agreement.
& 2. The non-competition clause is not effective if the agency agreement is terminated by the principal without invoking a reason referred to in article 19, first paragraph, or by the agent by invoking a reason referred to in article 19, first paragraph.
& 3. The non-competition clause creates an assumption in favour of the commercial agent that it has acquired customers; the principal may produce evidence to the contrary.
& 4. The lump sum indemnity provided by the agreement in case of violation of the non-competition clause shall not exceed an amount equal to one year`s remuneration calculated as provided in article 20, fourth paragraph.
However, provided that it proves the existence and the extent of its loss, the principal may demand a higher indemnity.
Article 25. The liability of the commercial agent for obligations of third parties ensuing from a transaction negotiated or concluded by it must be laid down in writing.
Unless otherwise agreed upon in writing, the commercial agent shall only be liable for the solvency of a third party pursuant to a del credere clause, excluding any other default on its part in fulfilling its contractual obligations. The del credere clause shall not be applicable any transaction in which the agent did not act itself. If the principal amends the terms of delivery or payment without the agent`s consent, such clause is no longer applicable.
The commercial agent cannot hold itself liable for an amount exceeding the commission agreed upon, unless the clause concerns a certain transaction or transactions concluded by it in the name of the principal.
If the risk to which the commercial agent has committed itself is manifestly disproportionate to the commission agreed upon, the court may reduce the amount for which the commercial agent is liable to the extent that such amount exceeds the commission. The court takes all circumstances into account, in particular the manner in which the commercial agent has protected the interests of the principal.
Article 26. The legal claims ensuing from the agency agreement shall become prescribed by one year having elapsed from the termination of the agreement or five years having elapsed from the date of the fact from which the claim arose, such period not exceeding one year from termination of the agreement.
Article 27. Without prejudice to international treaties to which Belgium is a party, any activity of a commercial agent the head office of which is established in Belgium shall be subject to Belgian law and the competence of the Belgian courts.
Article 28. In article 2 of Book 1, part 1 of the Commercial Code, amended by the act of 3 July 1956, the following paragraph is inserted between the sixth and seventh paragraphs:
"Any undertakings of commercial agents for negotiating or concluding transactions."
Article 29. The present act is not applicable to obligations the fulfilment of which was demanded in court prior to the date on which it becomes effective.
Promulgate this act, command that it shall be sealed with the Seal of the State and shall be published in the Belgian Gazette.
Given at Chateauneuf-de-Grasse, 13 April 1995
On behalf of the King:
The Minister of Justice,
Sealed with the Seal of the State