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27.01.2008
NEWS FROM THE LEGAL WORKING GROUP
by Secretary-general Mr. J.W.B. Baron van Till:
The Members of the Legal Working Group (LWG) met in Copenhagen by the end of November 2007. The meeting was hosted by Mr. Michael Svendsen, Secretary-General of the Nordic Federation. The meeting was attended by Mr. Carlo Tabellini (USARCI), Mr. Larry Coltman (MAA), Mrs. Kerstin Berchem (CDH), Mrs. Patricia Keltner and Mr. Jacques Hilbert Thomasson (APAC), Mr. Gael Grignon Dumoulin (FNAC), Mr. Michael Svendsen (Nordic Federation) and Mr. Jaap van Till (Secretary-General IUCAB). Mr. Tino Ramirez (MANA) and Mr. George Breiter (Bundesgremium) were not able to attend.
The draft IUCAB Legal Fact Sheet prepared by Mr. Grignon Dumoulin on the situation in Spain regarding the implementation of Art. 17 of Council Directive 86/653 was discussed and approved of. Mr. Grignon Dumoulin will prepare another draft for a Legal Fact Sheet on the situation in Portugal.
Mrs. Keltner and Mr. Hilbert Thomasson presented their study on the situation in Poland. The Council Directive 86/653 has been implemented in the Polish legislation on commercial agency agreements which is laid down in the Art. 758 to 746.9 of the Polish Civil Code. The Polish legislator has opted for the indemnity-system rather than the compensation-system. Case law is still scarce.
The decision of the English House of Lords in the Lonsdale-Case was discussed. According to this decision the Courts in England and Wales now have to follow a ruling that the commercial agent should be compensated for the value of the agency that he has lost. This involved valuing what a hypothetical purchaser would pay for the agency. Furthermore, compensation claims must be based upon the net profit of the agency and not gross commissions. The decision of the House of Lords will result in a lot of work for expert valuers and until the Courts have established a pattern in assessing such valuations, it is difficult to give guidance on the specific circumstances of each case.
The possibility of drafting a IUCAB Model for a balanced sub-agency contract was elaborately discussed. Various European Models and also a US-Model forwarded by Mr. Ramirez were examined. The conclusion of these discussions was that it is not possible to draft a balanced Model which includes a general solution of the problem if and to what extent the sub-agent will be entitled to payment of a compensation or an indemnity after termination of the contract.
Mrs. Berchem briefed the Members of the LWG on the draft principals for a Common Framework of Reference (DCFR). At present it is unclear what the status of the DCFR is.
According to the official statements made by the European Commission, the purpose of a file CFR is to ensure consistency and good quality of EC-legislation in the area of Contract Law. More specifically that the purpose of a CFR will be to provide clear definitions of legal terms, fundamental principals and coherent modern rules of Contract Law when revising existing and/or preparing new legislation. With a view thereto, actions from the side of the IUCAB LWG are pointed at making the European Commission aware of the fact that the present draft version for a CFR contains errors which need to be redressed.
The next meeting of the LWG will take place on 4 April 2008 in Tallin, Estonia. One of the items on the agenda will then be the necessity of a revision of the current version of the IUCAB Charter.