The Plenary of the Supreme Court of Greece with its recent cases No. 15/2013 and No. 16/2013, resolved the issue concerning the applicability per analogiam of the provisions of Greek legislation on Agency Contract to other types of intermediation, which meet the prerequisites of the provisions regulating the Agency Contract, such as in the case of the maritime agent and in the one of the commission agent. Agency Contract is regulated in Greek Law, by Presidential Decree [P.D] 219/1991 incorporating in Greek Law, directive 86/635/ EEC. The initial legislative text has been subsequently amended per P.D.s 264/1991, 249/1993, 88/1994, 312/1995 and recently by arts. 14 §§ 3-4 L. 3557/2007. After the recent amendment of art. 14 § 3 L/ 3557/2007, the provisions of P.D. 219/1991 apply per analogiam to agents providing services and (conditionally) to exclusive distributors, who are fully incorporated in the principal’s commercial organization.
The Supreme Court held that the maritime agency and the commission agency contracts present similarities concerning its legal nature and functions compared to the commercial agency contract. Therefore, in accordance with art. 4§1 of the Constitution, article 288 of the Greek Civil Code and the principles of equality and good faith, the provisions of the PD shall also be applicable to the maritime agent as well as to the commission agent and to other types of intermediaries upon the condition that their pursuit is similar to the one of the commercial agent’s.
The criteria found by the Court as substantial in order to be feasible the applicability by analogy of the PD to other types of intermediaries are the following: a) the conclusion of a clause restricting the intermediary’s right to sell products competitive with the Principal’s goods or services both during and after the termination of the contract; b) the conclusion of a clause according to which the intermediary is bound to keep the professional secrecy; c) the intermediary’s commitment to promote exclusively and on a permanent basis the Principal’s products, subjected also to restrictions regarding the amount of purchases and control of sales’ progress; d) the intermediary’s obligation to promote the Principal’s products and e) the intermediary’s commitment to notify its clientele to the Principal. However, according to the decisions, the aforementioned criteria do not need to be met cumulatively.
The conclusion of such clauses is crucial in order to be determined whether an intermediary and the maritime agent and the commission agent, in particular, shall be deemed as fully incorporated in the principal’s commercial organization, which entails that the P.D. 219/1991 is applicable per analogiam.
Yiannopoulos Panayiotis , IDI agency and distribution country expert for Greece