The termination of agency contracts during the trial period does not deprive the agent from compensation – first applications of the new case-law

On the 8th of Nov. 2018, the Commercial Court of Dijon (France) held that if a contractor enjoyed the position of commercial agent as of the beginning of the trial period, a termination of the contract during the trial period may not deprive the agent from the prior notice and the compensation he/she is entitled to receive (sects. L. 134-11 and -12 French Commercial Code).

In the case at hand, the principal signed two agency contracts, each of which contained a trial period of one year. Before the expiry of the trial period, the principal terminated the contract and refused to pay compensation to the agent.

At the European level, the ECJ recently interpreted E.U. law and held that termination during the trial period does not deprive the agent from any compensation he is entitled to receive subject to statutory conditions (decision of 19th April 2018, case No. C‑645/16, interpreting EU directive No. 86/653/CEE concerning the commercial agents).

The decision of the Court of Dijon is probably one of the first lower-courts’ decisions applying E.U. case-law and thus breaks with the previous French judgments (e.g. French Court of Cassation, 23rd June 2015, case No. 14-17.894).