Discussion Panel on commericial agents and occasional intermediaries IDI Conference, Venice 2012

Discussion Panelon commericial agents

and occasional intermediaries

IDI Conference, Venice 2012


Members of the Panel:• Ágnes Szent-Ivány (Sándor Szegedi Szent-

Ivány Komáromi Eversheds, Hungary);• Pedro da Costa Mendes (CNCM Advogados,

Portugal);• Peter E.P. Gregersen (Horten, Denmark);• Olga Sztejnert-Roszak (Drzewiecki, Tomaszek

& Partners, Poland)


Frankfurt, 20. May 2008Agreement concluded between

Company XY with its registered office in Palum, Daro 12, represented by Mr. Keller (“Company”)

andMr. Alexander Rola – acting on his own behalf, residing in Eden, Rabo 7 (“Mr. Rola”)

1. The Company as a manufacturer of the spare parts to construction machines is interested in acquiring new clients in the country of Mr. Rola. Mr. Rola is ready to assist the Company in this acquisition and declares that he has a sufficient experience in this respect.

2. After Mr. Rola finds a new Client, he will notify the Company on the data of the Client and its needs. The draft of the notification constitutes the Attachment Number 1 to this Agreement.

3. The Company will notify Mr. Rola on the order placed by the Client found by Mr. Rola. 4. Mr. Rola will be remunerated in the amount of 4% (four percent net) of the net amount

mentioned in the invoice issued by the Company to the Client found by Mr. Rola.5. Mr. Rola will issue the invoice after the Client will pay the invoice issued by the Company.6. Mr. Rola declares that he will not represent any Company’s competitor as long as this

Agreement will apply. 7. This Agreement is concluded for the unlimited period of time.


Termination period assuming that the contract is:

- an agency contract;- a contract with an occasional intermediary;


Danish law – termination of contract –termination period:

Agency: - One month for each commenced year of the

contract (up to 6 months); - The parties can agree that ..Contract with occasional intermediary:- No specific legislation. Governed by the general

contractual rules -> “fair notice”)- What is “fair notice”?


Portuguese law – termination of the contracts – termination period:

Termination without cause only allowed for contracts for an indefinite period

– 1 month in the first year commenced;– 2 months in the second year commenced;– 3 months from the 3rd year commenced + subsequent years;• If the parties agree on longer periods than those laid down in

the Law, period of notice to be observed by the Principal must not be shorter than that to be observed by the Agent.


Hungarian law – termination of the contracts – termination period:Agency:–1 month in the first year commenced;–2 months in the second year commenced;–3 months from the third year commenced;

Contract with occasional intermediary:–Company: with immediate effect –Mr. Rola :

– reasonable, fair notice -> enabling the Company to handle the matters appropriately

– in case of serious breach by Company: with immediate effect


Polish law – termination of the contracts – termination period:

Agency: 1 month – in the first year;2 months – in the second year;3 months – in the third and next years of the validity of the contract;

Contract with occasional intermediary:No statutory limits or terms (and no contractual rules): according to the

customs or immediately after declaration on termination of the contract


Company is going to terminate the contract with Mr. Rola. We are advisors of the Company.

What should the Company be aware of provided that Mr. Rola is an agent under the contract?

What if he is an occasional intermediary?


Polish law: termination by the Company:Mr. Rola is an agent:- goodwill indemnity;- new clients, considerable benefit, - one year provision maximum;

Mr. Rola is an occasional intermediary:- return of expenses;- payment of the remuneration due;- compensation of damage upon the general rules.


Hungarian law: termination by the Company:Mr. Rola has acted as an agent:- Communication of the termination (notice period)- Payment of goodwill compensation (Mr. Rola acquired new clients or expanded the

business relation with existing clients significantly; this results in benefits for the Company even after termination; mMaximum amount: one year average commission)

- Payment of commission due- Compensation of damages, if applicable

Mr. Rola has acted as an occasional intermediary:- Communication of the termination;- Payment of commission due;- Payment of necessary and useful expenses incurred by Mr. Rola- Relieving Mr. Rola from obligations undertaken in the course his activity- Compensation of damages, if applicable


Portuguese law: termination by the Company:Mr. Rola is an agent:- Payment of commission due- goodwill indemnity, if termination is not attributable to Agent;- new clients, considerable benefit, - 1 year average commission max (almost never given in full by Courts);

Mr. Rola is an occasional intermediary:- reimbursement of expenses;- payment of the remuneration due;- compensation of damage upon the general rules.


Danish law: termination by the Company:Mr. Rola is an agent:- termination notice- possible goodwill indemnity- one year’s average commission maximum- payment of the commission (due)- compensation for damages under the general rules Mr. Rola is an occasional intermediary:- termination notice- possible compensation for costs and expences- payment of the commission due- compensation for damages under the general rules


Mr. Rola is going to terminate the contract with the Company. We are Mr. Rola advisors.

What Mr. Rola will lose in case of termination of the contract provided that Mr. Rola is an agent?

What if he is an occasional intermediary?


Hungarian law – termination by Mr. Rola as:Mr. Rola has acted as an agent:- Communication of the termination (notice period)- No goodwill compensation:

- Payment only in limited cases (breach of contract by Company, health reason, age)

- communication within one year!

Mr. Rola has acted as an occasional intermediary:- Communication of the termination (reasonable notice

period);- Liable for damages if termination has been made without

substantial reason


Polish law – termination by Mr. Rola as:

An agent:- goodwill compensation

An occasional intermediary:- should the intermediary be remunerated and the termination without

important cause, he will be liable for damage (upon the general rules)


Danish law – termination by Mr. Rola as:

Mr. Rola is an agent and should consider:- termination notice- Possible loss of goodwill indemnity- compensation for damages under the general rules Mr. Rola is an occasional intermediary and should consider :- termination notice- possible compensation for costs and expenses- damages under the general rules


Portuguese law – termination by Mr. Rola as:Mr. Rola has acted as an agent:- Commissions due- No goodwill compensation, unless exceptions- Eventual compensation for damages (eg: for unlawful earlier

termination or non-fulfilment of termination period notice)

Mr. Rola has acted as an occasional intermediary:- Notice of termination (reasonable notice period);- Eventual compensation for damages (same as above)- Remuneration due


Could Mr. Rola file the motion for interim injunction or other temporary measure?

In what extend? What kind of measure?

What does he has to prove?


Portuguese law – interim injunctionTwo main criteria:

o Fumus bonis juriso Periculum in mora

30 days to file main law suit


Hungarian law – interim injunction-What?Same request that submitted in the claim statement (e.g. damages, commission, etc.)-When?Could be requested earliest at the time the claim is filed-How?By substiantiating one of the following reasons:

- Necessary to - prevent any imminent threat of damage; or- preserve the status quo; or

- By considering the need of special protection, the expected advantages supersede disadvantages obtained by the measure

Interim injunction in Hungary is rarely applied


Danish law – interim injunction

An interim injunction requires:• - Making likely• 1) that the prohibited actions would violate your

rights,• 2) that the other party would make such actions, and • 3) that you cannot await a decision by the ordinary

courts.- Relevant for termination of an agency or occational

intermediary contract?


Polish law – interim injunctionPrerequisites:- Probability of the claims;- Lack of interim measures could make the execution

of the verdict impossible or difficult;Interim measures:- arrest on movables, remuneration, bank account;- mortgage or pledge- prohibition of sale;


What are the non-competition consequences of contract termination (if any) provided that the contract between the Company and Mr. Rola is an agency contract?

What in case of intermediary contract?


Danish law – non-competition consequences:

- No non-competition consequences unless otherwise agreed.


Portuguese law – non-competition consequences:

• non-competition clause has to be written to be valid. • maximum period of 2 years + restricted to territory and/or in

relation to a certain circle of customers, previously attributed to the Agent.

• Agent has right to an equitable compensation• Otherwise, violation of art 61º of the Constituição da

República Portuguesa, violation of right to private initiative. • Occ Intermediary = same consequence as above


Hungarian law – non-competition consequences:

Unless otherwise agreed, no conqeuences.Possible agreement:Agency: maximum period of two years after

termination for appropriate compensationIntermediary: can be concluded for a maximum

period of five years, one year after termination


Polish law – non-competition consequences:Only in agency contract: • post-contractual non-competition obligation

has to be provided in the contract unless it is null and void;

• may refer to the group of the clients, territory, particular goods or services;

• maximum 2 years;• in general remunerated;


Thank you for your attention!

Documents

Discussion Panel on commericial agents and occasional intermediaries IDI Conference, Venice 2012