With the presence of Mr. Alberto Ruiz-Gallardón, Ministry of Justice of the kingdom of Spain, it has been presented in June 20th 2013 the new Proposal for a Mercantile Code. The document is the result of more than six years’ work of the Commercial Section of the National Commission for Codification.
The Proposal contains regulations on different commercial matters. Amongst these, the more relevant are: companies law, unfair competition, defence of competition, some dispositions on trademarks and patents, payments default in commercial relationships, new technologies in commercial agreements, general principles and specific contracts, financial agreements… and collaborative (distribution) contracts. Our purpose in this preliminary comment is just to mention the general aspects related to the matters analysed within the framework of the IDI: agency, distribution and franchising.
In fact, the Proposal proposes within the collaborative contracts (Title IV), a substitution of the regulation on Agency agreements (the Proposal would derogate the current Agency Act) and a completely new regulation on Distribution (including Franchise) agreements. Nowadays there is not in Spain a concrete and complete legal regulation on Distribution and Franchise agreements.
Concerning the Agency agreement, the Code would substitute the current regulation on the Agency Contract Act, including in the text the complete regulation. The structure of the Agency agreement would remain similar to the current one with some minor modifications in order to make it coherent with the rest of the code but without substantial changes.
Distribution and Franchising are not regulated in Spain in a specific norm. The Proposal includes a special Chapter III in this Title IV on distribution agreements including amongst them different kind of commercial distribution agreements such as the exclusive purchasing, exclusive selling, authorised distribution, selective distribution, commercial concession and franchise agreement. The regulation tries to favour the usually weaker party: the distributor.
The Proposal includes some special rules related to these agreements: (a) pre-contractual duties, (b) formalization in writing, (c) duties of the parties, (d) exclusivity agreements, (e) commercial objectives, (f) damages on trademarks, (g) advertising made by the distributor, (h) cession of the agreement and appointment of assistants, (i) independency of the parties, (j) duration and termination of the agreement, (k) amortization of specific investments (l) collaboration in liquidation and (m) goodwill compensation (clientele) amongst the main ones.
The Proposal also contains regulation in some connected agreements similar to agency or distribution. This is the case for commission agreement (contrato de comisión), consignment agreement (contrato estimatorio) and commercial mediation (mediación mercantile).
The Code will now need to be assumed by the Government and be submitted to the Spanish Parliament in order to be approved. The initial idea is to try to adopt it within this period of sessions ending in 2015.
Ignacio Alonso , IDI agency & distribution Country Expert for Spain.