1. The determination of the ratione materiae scope of application of P.D. 219/1991 (i.e. the Greek legislative Instrument, implementing in the Greek Legal Order Directive 86/653) remains even today a long and strongly debated topic of discussion in Greek scholarship writing and jurisprudence, focusing particularly to the applicability per analogiam of the respective provisions (and especially those dealing with good will indemnification and time limits of termination of the contract) to distributors, as well as other commercial intermediaries. The topic was addressed repeatedly by the Supreme Court in a sequence of decisions starting with the landmark decisions SC 139/2006 (1) and 212/2006 (2) confirming the possibility of analogous application of the provisions on commercial agency to distributorship, in those occasions as the following conditions were met: a) that the Distributor acted as a part of the commercial organization of its counterpart, maintaining identical weak position and heavy dependence from the supplier as the typical commercial agent that was used by the European legislator as point of reference for the drafting of Directive 86/653; b) that the Distributor contributes significantly to the expansion of the clientele of the supplier, undertaking to a significant extent tasks similar to those of a commercial agent and being liaised to a sales network handled by the supplier, just as an agent would; c) that the Distributor undertakes the obligation to abstain from any competitive acts towards the supplier; d) that the Distributor’s clientele is accessible by the Supplier and the later one is in position to undertake the service to the said clientele; e) in general terms whenever the financial activity of the Distributor and its financial benefits (despite their characterization in formal legal terms) resemble those of a commercial agent.
2. A short time later to an explicit regulation of the issue per art. 14 _ 3 L. 3557/2007 ruling that the provisions of P.D. 219/1991 apply on an analogous basis to agency contracts for the provision of services (unconditionally) and to distribution contracts on a conditional basis. After the said provision the analogous application of P.D. 219/1991 is subject to the following conditions: a) that the Distribution Contract is an exclusive distribution Contract; b) that due to the exclusivity of the Distribution Contract the Distributor is incorporated into the Sales Organization of the Supplier. It was unfortunate, though, that even in the recent legislative intervention, the text of the provision remains still quite dense and obscure. Thus, albeit the wording of the provision is definitely more narrow, than the conditions set in the judgments of the Supreme Court 139/2006 and 212/2006, the Introductory Report of L. 3557/2007 (3), highlight the necessity to adapt to jurisprudence, thus leaving open ground for further discussions on the exact extent of the conditions applicable in order to affirm analogous application of P.D. 219/1991. Furthermore, the criterion of the degree incorporation of the distributor in Supplier’s Sales’ Organization as a measure to determine the analogous applicability of the provisions of commercial agency to a distributorship, remains fairly obscure, leaving even further grounds for debate (4).
3. Pursuant to the said development, the opinion on analogous applicability of the provisions of P.D. 219/1991 to distributorships, prevailed in Greek jurisprudence (5), while a remarkable trend of recent jurisprudence is that it effectively relies to substantiate this position to the rulings of SC 139/2006 and 212/2006 without any citations to art. 14 L. 3557/2007.
4. Beyond the realm of distributorships, though, Greek Jurisprudence has proved quite reluctant to confirm the analogous application in other types of contracts of commercial intermediaries, such as franchise contracts (6) or even further contracts of post agents (7). This tendency was confirmed in the recent judgment 1121/2010 (8). In the later case, the Court addressed the claims of a post agent whose contract had been terminated, for loss of profits and goodwill indemnification. The Court confirmed the ruling of the Court of Appeal (9) highlighting in detail the differences between two contractual forms. More specifically the Court, ruled that there are substantial differences between agency and a contract for post agents, relying further to ECJ’s ruling in Abbey Life Insurance (10) as well as to elementaries of interpretation per analogiam. The Court ruled that after the issuance of Abbey Life Insurance the analogous application of P.D. 219/1991 to other contractual forms would contradict the requirements of uniform interpretation and application of E.C. Law. Alongside it ruled that ‘a legislative gap exists, whenever a relationship is not explicitly regulated, even tough such regulation is necessary and while it resembles to another, regulated case, to such a degree that the similarities may justify the application of different and irrelevant in principle provisions. Analogy presupposes: a) the existence of a gap in the legal framework; b) similarity of the regulated issue to the non regulated one and c) identity of legal cause. The first of those conditions affords the fulfillment of the legislative gap through the analogous application of a given provision, only in those occasions when such (fulfillment) is imposed from a necessity of standard and objective regulation. To the contrary, analogous application in a non uniform basis, but selectively and on an ad hoc basis, would result to a non affordable substitution of the legislator by the court, setting de facto terms and conditions which supersede (the scope of the) applicable per analogiam provision. The Community Legislator of Directive 86/653/EC was cognizant of the type of Contract he was willing to regulate. In further detail the EC Commission Announcement ‘on Contract of Exclusive Agency’ refers to ‘the decisive element to distinguish an exclusive commercial agent from an independent trader’. Having as point of departure the said clear distinction, European Legislator intentionally abstained from expanding the scope of application of the said Directive to other types of contract e. Nor, is concluded such an intention from the domestic legislative instrument (P.D. 219/1991) incorporating in domestic law the said Directive. To the contrary, should one assume that post agency was omitted unintentionally (from the scope of P.D. 219/1991) and therefore a legislative occurs demanding analogous treatment, then such treatment should apply to each new type of contract occurring in the course of evolution of transactions. Such an assessment though would be alienated from the dynamics of commercial relationships, freedom of contract and even further the will of the domestic legislator. To suggest that unless it is not determined in Directive 86/653/EC an intention of the Community Legislator to prohibit to the Member States the introduction of similar protective rules for the remaining intermediating to commerce person, then neither from the domestic legislative instrument (P.D. 219/1991) may be such intention concluded, as regards the lack of protection for those persons, is grounded on an erroneous assumption. This is indeed the case, since the critical issue there, is not whether the legislator prohibits analogous interpretation (in which case the question of analogous expansion of the (scope of) the provisions of P.D. 219/1991 would never occur, but whether, while (the legislator) being cognizant that other persons participate in commerce as intermediaries of products and services within the context of performance of other form of permanent intermediating contracts (such is the case of post agency) he did not wish to expand the provision of analogous protection to thus persons (and consequently, neither to the post agents).
5. The ruling is definitely interesting, highlighting if not anything else a number of interesting parameters as regards the preconditions of analogous application, which are not often met in Greek jurisprudence. On the other hand the overall impact of the judgment should not be overestimated. Before anything else the judgment confirms actually was had been the prevailing view already in appellate jurisprudence since 2006 (11) as regards contracts of post agency. Actually, even as far as contracts of post agency are concerned it may not be deemed as conclusive of the respective debate, considering that a few days earlier (on 1.6.2010) another Chamber of the Court (i.e. A2 – instead of A1) ruled that art. 10 of P.D. 219/1991, regulating the prohibition of competition clauses for an agent applies per analogiam in post agency contracts as well (12). Having said the above, it is rather evident that irrespectively of its doctrinal value, the Supreme Court’s ruling in SC 1121/2010 is not concluding the debate, even in the field of post agency contracts. Much more, it is may not be held as concluding the debate on the determination of the conditions upon which analogous application of P.D. 219/1991 is granted in distributorships, which has always been the core topic of concern in Greek Legal Practice. As regards the later topic, the Supreme Court firmly confirmed its previous rulings in SC 139 and 212/2006 (13), repeatedly within the course of the previous year, leaving no doubts as regards the potential of analogous application of P.D. 219/1991.
The conditions set per art. 14_3 L. 3557/2007 are certainly more narrow than the ones adopted by the Supreme Court in judgment no. 139/2006 thus leaving for the moment unanswered the issue of applicable rules to those Distribution Contracts that would justify an analogous application of P.D. 219/1991 under SC 139/2006 but not under art. 14 _ 3 L. 3557/2007. It is the author’s belief that on the basis of the interpretational principle ‘expression unius est exludio alterius’ an analogous application may not be supported in those cases anymore. However this remains to be confirmed in day to day practice. It is self understood that such Distribution Contracts as are not falling within the scope of art. 14 _ 3 L. 3557/2007 are still regulated by the combination of the provisions of GCC on Mandate and Commercial Law on Commercial Order, as well as that the analogous application of the provisions of P.D. 219/1991 applies solely to those provisions of the said instrument as may be adjusted to the nature of a Distribution Contract. (14)
Panayiotis Yiannopoulos, IDI agency & distribution Country Expert for Greece.
(1) DEE 2006.649
(4)After the author’s belief the wording of the provision applies in principle to systems of selective distributorships (see p.e. arts. 1 (d) Reg. 2790/1999 and 1 (f) Reg. 1400/2002. However it has been advocated that the term applies whenever it is determined that the clientele created by the distributor is effectively controlled from an economical-social perspective by the Supplier and not the Distributor. See f. N. Tellis, Recent legislative development in Agency and Distribution Law. The written form requirement in the contract for commercial agency and the issue of analogous application of the provisions of P.D. 219/1991 after arts. 14 _ 3 -4 of L. 3557/2007, EpiskEmpD 2007.958 et seq: 976-977.
(5) SC 175/2010 [NOMOS]; SC 176/2010 EpiskEmpD 2010.743 note Pamboukis; SC 881/2010 DEE 2010.1082; SC 882/2010 [NOMOS]; SC 1739/2009 DEE 2010. 823; SC 1933/2009 [NOMOS]; SC 1934/2009 DEE 2010.337; CA Piraeus 83/2009 DEE 2009.749; CA 1538/2009 Arm 2009. 1200.
(6) MultCivCourt of 1st Instance of Athens, 1156/2003
(7)CA Thessalonki 2822/2007, unpubl; CA Athens 7494/2006 DEE 2007.472 note Kiprouli; CA 9032/2006 DEE 2007.613 note Kiprouli; See in further detail: Vervessos, The post agents, EEmpD 2006.543
(9) CA 9032/2006 op.cit.
(10) ECJ, Abbey Life Assurance Co. Ltd v Kok Theam Yeap (6.3.2001), C-449/01, OJ C 146, 21.06.2003, p. 13.
(11) See supra note ….. .
(12) SC 1041/2010 [NOMOS].
(13)See supra notes …. and ….
(14)CA Piraeus 83/2009 DEE 2009.479.