Poland
- Under Polish law, agency agreements are regulated primarily in the provisions of the Civil Code, in particular Articles 758-764⁹. These provisions set out, among other things, the definition of a commercial agent, the scope of the agent’s core duties towards the principal, as well as the rules governing remuneration, including the agent’s right to commission. They also address matters related to the duration of the agency relationship, notice periods, and the legal consequences of termination.
It should be noted that these provisions implement Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self employed commercial agents. As a result, the solutions adopted in the Polish legal system are largely aligned with the regulatory frameworks in place in other European Union Member States.
- As a rule, collective labor agreements applicable to commercial agents do not operate in Poland. This is primarily due to the legal nature of the relationship between the agent and the principal. A commercial agent within the meaning of the Polish Civil Code is an independent entrepreneur conducting business activity, rather than an employee employed under an employment relationship. Accordingly, labor law regulations – including the institution of collective bargaining agreements provided for in the Labour Code – do not apply to this type of relationship.
The legal relationship between the agent and the principal is of a civil law nature and is governed primarily by the provisions of the Civil Code, as well as by the terms of the agency agreement as negotiated and established by the parties.
- Under Polish law, following the termination of an agency agreement, the agent may be entitled to so called goodwill compensation. This mechanism, regulated in the provisions of the Polish Civil Code, constitutes a specific form of compensation granted to the agent after the termination of cooperation with the principal.
The agent’s right to goodwill compensation arises where the agent has acquired new clients for the principal or has significantly developed relationships with existing clients, and the principal continues to derive substantial benefits from agreements concluded with those clients after the termination of the agency relationship. An additional requirement for granting this compensation is the existence of equitable considerations, in particular those related to the agent’s loss of commission from transactions concluded with those clients after the agency relationship has ended.
The amount of goodwill compensation is subject to a statutory cap and may not exceed the equivalent of the agent’s average annual remuneration. This amount is calculated on the basis of the agent’s average remuneration earned during the last five years of the agreement, or (if the cooperation lasted for a shorter period) on the basis of the average remuneration for the entire duration of the agreement.
However, goodwill compensation is not available in all circumstances. In particular, the claim is excluded where the agreement was terminated by the principal due to a culpable breach of duties by the agent, as well as in other situations specified in the Civil Code provisions governing agency agreements.
It should also be noted that, under the Civil Code, the parties to an agency agreement may introduce a post termination non competition clause. Such a restriction must be made in writing to be valid, may relate only to clients, the territory of activity, or the types of goods and services covered by the agreement, and cannot be established for a period longer than two years following termination. As a rule, it is also associated with the principal’s obligation to pay the agent appropriate financial compensation for the duration of the non competition restriction.
- Under the provisions of the Polish Civil Code, an agent loses the right to claim goodwill compensation if, within one year from the termination of the agency agreement, they do not notify the principal of their intention to exercise this right. This period is strict and cannot be extended, meaning that once it expires without effective notification, the claim is extinguished. Although the law does not prescribe any specific form for such notification, in practice (for evidentiary reasons) it is most commonly submitted in writing.
- Joanna Chmielińska (j.chmielinska@kkz.com.pl)
