Since June 21st 2012, the European Regulation no. 1259/2010 (also called “Roma III”) introduced very important innovations regarding the law applicable to divorce and separation.

The regulation allows international couples to choose by common agreement the law applicable to their divorce or personal separation, even when it is not the law of a participating member state.

The conditions required are:

1) it must be an international separation or divorce;

2) the law chosen is that of the State with which the spouses have a close relationship .

On the point, the art. 5 of the Rules clarifies that the link with the law of a given State is considered “close”, whenever it is one of the following laws:

– the law of the State of habitual residence of the spouses at the time of conclusion of the agreement;

– the law of the State of the last habitual residence of the spouses if one of them still resides there when the agreement is concluded;

– the law of the State of which one of the spouses has citizenship at the time the agreement is concluded;

– the law of the forum.

3) that the agreement is done in writing, dated and signed by both spouses.

The written form includes any electronic communication that allows a durable recording of the agreement (Article 7 of the Rules). The form of a public instrument is not required.

This agreement may be concluded and amended at any time, but at the latest when the court is seized.

When, however, the parties have not chosen the law to be applied, art. 8 of the Regulations states that personal separation and divorce are governed by the law of the State:

– of the spouses’ usual residence, when the court is seised; or, failing that,

– of the last habitual residence of the spouses, provided that this period has not been completed more than one year before the court was seised, if one of them still resides there at the time the court is seised; or, failing;

– of which the two spouses are citizens at the time the court is seised or, failing that,

– in which the court is seized.

Finally, it is specified that Regulation no. 1259/2010 apply only to personal separation and divorce. Consequently, all other matters, such as, for example, parental responsibility or maintenance obligations, are excluded, even if they arise as preliminary issues in the context of a divorce or separation process (Article 1) .

The importance of this new Community instrument is all the more evident when one considers that the internationalization of couples undoubtedly represents a new phenomenon of the 21st century and that, unfortunately, the number of separations and divorces has grown exponentially in recent years, both nationally and internationally.

In particular, spouses residing in Italy, of which only one has French or Belgian nationality, will certainly benefit from the innovation introduced by Regulation 1259/2010.

In fact, before that regulation, only Italian law regulated their separation, now, they can choose jointly the French and / or Belgian law and, consequently, directly obtain the divorce. without having to preliminarily “pass” through personal separation.

On 10 January 2015 the EU Regulation no. 1215/2012, called “Brussels I bis”, replaces Regulation EC / 44/2001 on jurisdiction, recognition and enforcement of judgments, regarding civil and commercial matters, given in the Member States of the European Union (EU).

The main innovation introduced by the aforementioned regulation concerns the execution of judgments issued by the court of a Member State which will be “regarded” as if they had been pronounced in the Member State in which they are to be carried out.

This new instrument has therefore abolished the exequatur, i.e. the procedure set out in the EC Regulation no. 44/2001 to implement these decisions in all other Member States, which provided that, for enforcement purposes, the judicial authority of the Member State of destination should grant in advance the declaration of enforceability in the territory of that State (Article. 38, paragraph 1, of the aforementioned Reg. No. 44/2001 provided, in fact, that ” Decisions made in a Contracting State and enforceable therein shall be executed in another Contracting State after they have been declared enforceable therein at the request of the interested party “).

Article. 39 of the new text establishes instead that ” the judgment given in a Member State which is enforceable in that Member State shall be enforceable in the other Member States without any declaration of enforceability being required “.

This means that also the decisions that have been obtained by the creditor without using the “Community” credit recovery tools (i.e., “the European order for payment procedure” provided for by EC Reg. No. 1896/2006 or the “European procedure for low-level disputes “regulated by EC Reg. No. 861/2007) as well as those claims that have been “challenged” by the debtor (the “European Enforcement Order” can be applied at Community level, by EC Reg. No. 805/2004 only for uncontested claims), they will be enforceable title  immediately and automatically in all the other Member States, without obtaining the exequatur.

From a practical point of view, thanks to this new Community instrument, it will be possible to proceed with the execution of judgments given, for example, in Italy or in France, in all other EU Member States, simply by notifying the party against which the judicial decision is obtained.

The only condition required for enforcement is, in fact, that the applicant proves the enforceability of the decision according to the laws of his own Member State.

To this end, art. 42 of the Regulations establishes that the applicant provides the authority charged with execution in the requested State, “a copy of the decision with all conditions necessary to establish its authenticity “, as well as “the certificate (pursuant to art. 53) stating the enforceability of the decision” in the Member State of origin.

It is therefore an important innovation that confirms the will of the Community legislator to facilitate the circulation of judgments within the European Community in order to reduce time and costs of their execution.

• Definition of “trade agent” under French Code of Commerce

If you sign an agency contract with a French national under French law, it does not necessarily mean that he is an agent following the regulatory law, consequently, at the time of termination of the contract, he may not be entitled to receive any severance indemnity. That, regardless of how you have legally qualified the relationship.

In fact, “the implementation of the agency bylaws does not depend neither on the will expressed by the parties in the contract, nor on the name given to their conventions, but on the conditions under which the activity is actually exercised” (Supreme Court, sentence n. 01-11923 / Dec 10th 2003).

Now, the necessary conditions to be a trading agent are fully described in art. L. 134-1, 1st paragraph, of the French Code of Commerce, which defines a commercial agent as:

“An agent who, as an independent profession, without being bound by a contract for the provision of services, is permanently appointed, to negotiate and, where appropriate, to conclude contracts for the sale, purchase, leasing or provision of services in name and on behalf of producers, industrial, traders or other trade agents.”

According to French law, the application of agency bylaws is, therefore, subject to the condition that the agent has permanently and independently the power to negotiate and, where appropriate, conclude sales contracts.

The power to conclude sales contracts is therefore a possibility, while the power of negotiation constitutes the mandatory characteristic of the agency contract.

• Agents“Power to negotiate”

Furthermore, what is meant by “power to negotiate”?

This power consists in the ability given to the agent to negotiate prices and conditions of the sales with the customers, without being strictly bound to the contractual and tariff framework set by the Principal.

In other words, the agent must actively promote the order and not just introduce and show a product at a price that complies with the price list drawn up by the principal, without any power to grant discounts, payment extensions or delays, etc.

The power of negotiation is, therefore, the cornerstone to establish whether an intermediary can benefit from the status of agent or not.

• Intermediary or agent. Differences and definition

The French jurisprudence, in fact, considers that the avowal of commercial agent rests only with the agent who has real power to negotiate contracts.

Consequently, where the judge finds the absence of a negotiation activity exercised by the agent, the judge is required to reject the enforcement of the commercial agency regime.

Thus, the Court of Cassation, (sentence n. 13-24.231 / Jan 20th 2015), denied the status of commercial agent to an intermediary who could not, “without renouncing his commission, grant discounts” and which had to respect the price and terms of sale set by the principal.

The Court in fact held that:“Mr. X … was devoid of any negotiating power” and that, consequently, he could not avail himself of the status of commercial agent.

Conclusion to which the same Court attained a few years earlier, ruling (sentence n. 10-14851 / Apr 27th 2011), in which: “Considering, on the other hand, that for own reasons, [the company Exan] had no permanent power to negotiate contracts in the name and on behalf of Cephalon, the Court of Appeals correctly inferred that the company Exan did not have the status of commercial agent”.

In another case, the Court of Appeals of Paris recognized the quality of agent to an agent who had no margin of negotiation on tariffs, but who nevertheless possessed the possibility of proposing to his own clients gifts, consisting of international congresses. The Court in fact held that, although the agent did not have any power to negotiate the price, the gifts in question, having an important financial value, were in any case a negotiation tool and marketing support, available to the same representative, and therefore the latter had the quality of commercial agent.

• Right to severance pay

In light of the above, in the event of a dispute with a French agent for the payment of severance and indemnity, when the contract is governed by French Law, it is essential to first check whether, under the conditions set out in the contract, the aforementioned intermediary possessed the power of negotiation as understood above, failing which, as said, the same can not benefit from the status of agent and, consequently, the indemnities related to the termination of the agency contracts.

• Agency with Italian Principals – clauses and exclusions

All said, becomes utmost important for Italian Principals. In fact, it often happens that, even when the relationship is governed by French law, the contract drawn up by the Italian Preponent contains clauses derived by the Italian agency contracts, in which the parties usually exclude any negotiating power in relation to the agent, providing, on the contrary, an express obligation for the same to adhere scrupulously to the prices and terms of sale set by the principal and an equally express prohibition to grant discounts, payment extensions, etc. …

These clauses, as mentioned, exclude for the French jurisprudence that the intermediary can be recognized as a commercial agent.

• Severance Italian Law v/ French Law

Moreover, the severance indemnity provided for by the French law is much higher than that foreseen by the Italian legal system. In fact, according to art. 1751 of the Italian Civil Code, the maximum limit cannot exceed one year of commissions, to be calculated on the basis of the annual average salary collected by the agent in the last five years.

The French legal system does not provide for any limitation on the recognition of such compensation, with the consequence that, over the years, the Courts have tended to recognize to the agents an indemnity equal to two years of commissions, calculated on the average of the last three years, or even, in case of a long-term relationships, equal to even three years.

• Lack of status of commercial agent – always the best strategy

For such reasons, where the conditions exist, the Italian Principal should plead the lack, on the part of his French opponent, of the status of commercial agent.