Belgium
- Under Belgian law, commercial agency is governed by Title 1 of Book X of the Code of Economic Law (Articles X.1 – X.25 CEL), which implements Directive 86/653/EEC.
Title 2 of Book X of the CEL concerns pre-contractual information in the context of commercial cooperation agreements. Initially, this title was intended to apply only to franchising, but its scope has been extended and it now also applies to commercial agency.
- No collective bargaining agreements apply to commercial agency, as a commercial agent is a self-employed independent contractor and not an employee.
- Upon termination of the commercial agency agreement, the commercial agent is entitled to an indemnity for goodwill where he has brought the principal new customers or has significantly increased the volume of business with existing customers, insofar as this may still provide the principal with substantial benefits.
The amount of this indemnity is determined taking into account both the business generated and the customers brought in. However, the law provides for a maximum amount, whereby the indemnity may not exceed a sum equivalent to one year’s remuneration, calculated on the basis of the average remuneration over the preceding five years, or on the basis of the average remuneration over the preceding years if the commercial agency agreement lasted less than five years.
The indemnity is not payable in a number of situations:
• where the principal has terminated the commercial agency agreement due to a serious breach attributable to the commercial agent;
• where the commercial agent has terminated the agreement, unless such termination is due to a serious breach attributable to the principal, or results from the agent’s age, infirmity or illness, on account of which he cannot reasonably be required to continue his activities;
• where the commercial agent or his heirs, pursuant to an agreement with the principal, assign their rights and obligations under the commercial agency agreement to a third party. - Pursuant to Article X.24 of the Code of Economic Law, claims arising from a commercial agency agreement become time-barred one year after the termination of the agreement or five years after the event giving rise to the claim, without this period exceeding one year after the termination of the agreement.
An agent confronted with the termination of the agreement and wishing to bring certain claims must therefore take into account a particularly short limitation period of one year.
- Mr. Jelle Lammertyn (jelle.lammertyn@dl-advocaten.be)
