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An exploration of the European dimension of the Commercial Agents Regulations

Lloyd's Maritime and Commercial Law Quarterly

An exploration of the European dimension of the Commercial Agents Regulations Andrea Tosato * In 1986, the European Communities enacted Directive 86/653/EEC on self-employed commercial agents. In the UK, this was implemented into national law in the Commercial Agents Regulations 1993. Over the past 20 years, considerable scholarship has been devoted to commercial agents and a sizeable number of English and Scottish cases have dealt with this body of rules. This paper highlights that courts and commentators alike have frequently construed these Regulations according to the canons of construction of the common law; it further submits that this approach is inconsistent with the principle of uniform application of EU law and may give rise to Francovich liability. The suggestion is advanced that the European dimension of the Regulations ought to be reconsidered, with increased attention to the principle of consistent interpretation. This allows for a more sophisticated understanding of the legislation governing commercial agents and also addresses several areas of uncertainty which emerged in past decisions. I. INTRODUCTION In 1986, following a lengthy gestation, 1 the European Communities enacted Directive 86/653/EEC on the co-ordination of the laws of the Member States relating to self- * Lecturer in Law, University of Nottingham. I would like to express my sincere gratitude to the Dickson Poon School of Law, King’s College London, for giving me the opportunity to research this paper during my time there as a Visiting Research Fellow. I also owe thanks to Professor Francis Reynolds for his advice and to the anonymous referee for helpful suggestions. All errors are my own. The following abbreviations are used: Directive, the: Directive 86/653/EEC on the co-ordination of the laws of the Member States relating to self-employed commercial agents [1986] OJ L382/17; DCFR: C Von Bar and E Clive (eds), Principles, Definitions and Model Rules of European Private Law. Draft Common Frame of Reference (DCFR) (OUP, Oxford, 2010); DTI Notes: Department for Trade and Industry: Guidance Notes on the Commercial Agents (Council Directive) Regulations, available at www.dti.gov.uk/files/file24590.pdf ECJ: formerly the Court of Justice of the European Communities, now the Court of Justice of the European Union; Prechai: S Prechai, Directives in EC law, 2nd edn (OUP, Oxford, 2005); Randolph & Davey: F Randolph and J Davey, The European law of commercial agency, 2nd edn (Hart, London, 2010); Saintier & Scholes: S Saintier and J Scholes, Commercial agents and the law (LLP, London, 2005); Regulations, The: Commercial Agents (Council Directive) Regulations 1993: SI 1993/3053; TFEU: Treaty on the Functioning of the European Union (2010). 1. See Randolph & Davey, 13–15; FMB Reynolds, “Commercial Agents Directive” [1994] JBL 265, 265–266. THE COMMERCIAL AGENTS REGULATIONS 545

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