Commercial Agency in Spain: Trial Period
As noted by the recent judgment of the Court of Justice of the EU, Directive 86/653 on agency contracts does not contain any reference to the concept of a “trial period.” Given that no provision of the directive regulates the establishment of a trial period, it must be considered that such an arrangement, which falls within the freedom of contract between the parties, is not, in itself, prohibited by the directive.
While it is true that the establishment of a trial period is aimed at facilitating the termination of a commercial agency contract, the fact remains that such termination during the trial period agreed upon in the contract constitutes a “termination of the contract” or “cessation of the (…) relationship [of the commercial agent] with the principal” under Article 17, paragraphs 1 and 3 of the Directive.
The observations submitted to the Court revealed that certain case law, in this instance French case law, considered that the commercial agent is not entitled to any compensation if the termination of the commercial agency contract occurs during the trial period, based on the argument that, during this period, the agency contract is not yet definitively concluded.
It has been made clear that such an interpretation has no basis in Directive 86/653. On the contrary, the relationship between the commercial agent and the principal exists from the moment the contract is concluded, whether it involves the sale or purchase of goods, or the negotiation and conclusion of such transactions in the name and on behalf of the principal, regardless of whether the contract includes a trial period. Consequently, the provisions of the directive apply from the moment such a contract is concluded between the principal and the commercial agent, even if the contract provides for a trial period.