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International Agency and Distribution Law - 2nd Edition - Looseleaf
International Agency and Distribution Law - 2nd Edition - Electronic
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Belgium
Elisabeth Hoffmann
Hoffmann & Partners
Brussels, Belgium
General Environment for Agents
AnewLawon CommercialAgencyAgreement (‘1995 Law’) dated 13April 1995 came
into force in Belgium on 12 June 1995. It implements the European Council Directive
dated 18 December 1986 which should have been incorporated into Belgian law
since 1 January 1990.1 This 1995 Law will not completely supersede the former legal
situation in Belgiumfor different reasons. Firstly, it does not dealwith agency contracts
in general, but rather focuses on certain specific essential points, such as remuneration,
termination of contract, and compensation due to the agent in the event of termination of
the contract. Secondly, article 29 provides that the 1995 Law is applicable only to ongoing
agreements,with the exception that it does not apply to performances, the execution
of which have been claimed into court before its entry into force.2 For these reasons, the
author considers it more interesting to examine both the former and present legal
situations.
Definition of Agent
Under the 1995 Law, the commercial agency agreement is defined as a contract whereby
one of the parties, the commercial agent, is permanently empowered by the other party,
the principal, for remuneration, to negotiate, and possibly to enter into transactions in the
name and on behalf of the principal of which he is not a subordinate.3 This definition corresponds
to the principles on which the Belgian case law and doctrine rely.4 Given that the
agent’s mission exceeds that of a simple representative or proxy and includes other missions,
a large part of legal doctrine confirms that an agency contract may not be
categorized under Civil Law, but must be considered as an autonomous agreement under
Belgium
General Environment for Agents
Definition of Agent
Agent Distinguished from Distributor
Formation of Agency Relationship
Legal Purpose and Nature of Contract
Agent’s Duties
Principal’s Duties
Termination
Under Common Law
Under the 1995 Law
European Law
Compatibility of Agency Agreements with European
Community Treaty
Commission’s Notice on Exclusive Agency Contracts
Criteria Other Than Risk May Be Relevant
Volkswagen Decision of the European Court of Justice
New Draft Commission’s Notice
General Environment for Distributors
Law of 27 July 1961
Distribution of Exclusive Sales Distribution Contract
Definition of Distributor
Types of Sales Distribution Contracts Protected by Law
Formation of Distributorship Relationship
Generally
Application of Law of 27 July 1961
Types of Distributorships
Execution of Exclusive Sales Distribution Contract
General Restrictions on Freedom to Contract
Contracts Executed for Definite Term
Termination of Exclusive Sales Distribution Contract for
Indefinite Term
Termination of Contract for Serious Breach
Unilateral Termination without Serious Breach
Notice
Termination Indemnity
Additional Compensation
Recovery of Stock
Mandatory Nature of Law of 27 July 1961
National Competition Law
Taxation
Litigation Issues
Territorial Jurisdiction of the Courts
Elisabeth Hoffmann, Hoffmann & Partners, Brussels, Belgium
