In general terms, the commercial agent in Spain is a professional in charge of promoting, negotiating or carrying out commercial operations in the name and on behalf of one or more companies (entrepreneur).
At the level of an agency relationship, disagreements often arise regarding the determination of the amount of commission fees that the agent is to receive. In light of this, article 15.2 of Law 12/1992 of May 27 establishes the following in regards to agency contracts:
The agent shall be entitled to ask that he be shown the contractor’s accounts in the particulars necessary to verify everything related to the commissions that correspond to him and in the manner prescribed in the Commercial Code. He shall also be entitled to be provided with the information the contractor holds and is necessary to verify the amount.
However, it often happens that the entrepreneur refuses to provide the agent with such accounting information, arguing, for example, that this is not covered within the agency contract. Under these circumstances, the commercial agent has no choice but to go to the courts for help in order to request the availability of the corresponding invoices to calculate and receive their commissions.
Ways to exercise the commercial agent’s right to information
From a procedural legal point of view, there are two ways of claiming such information:
- Through a request for preliminary proceedings or
- Through the filing of an ordinary lawsuit.
As we shall see below, the choice of one way or the other will depend on the place where the complaint is filed.
The current jurisprudential debate deals with the adequacy or otherwise of the preliminary steps to request the exhibition of accounting and the delivery of information referred to in article 15.2 of the LCA.
The right of information through preliminary proceedings (province of Barcelona)
Preliminary proceedings have a preparatory purpose for the main trial – in this case the ordinary trial. They help to clear up doubts about legitimacy or serve to clarify some point unknown to the future plaintiff (the agent), such as determining the amount of his future ordinary trial claim. This is a merely explanatory proceeding that lacks enforceability.
Jurisdiction to hear petitions for preliminary proceedings corresponds to the judge of first instance or the commercial court, where appropriate, from the domicile of the entrepreneur who, where appropriate, had to declare, exhibit or otherwise intervene in the actions agreed to prepare the trial.
The Provincial Court of Barcelona, among others, admits the use of preliminary proceedings by the agent to obtain the information necessary to prepare and quantify the claim against the entrepreneur in question.
The right of information through ordinary proceedings (Madrid province)
The provincial court of Madrid, however, rejects the use of preliminary proceedings to request the exhibition of accounts and the delivery of information from the entrepreneur. It understands that this request does not fit into the “numerus clausus” of assumptions of preliminary proceedings of article 256 of the Civil Procedure Law (LEC).
The court considers that the provision of information shall be requested in the probative phase of the main process -by means of the figure of documentary exhibition regulated in article 328 of the LEC-.
As a solution to the impossibility of determining the amount of the claim (due to lack of information), the court proposes to formulate a claim clearly establishing the bases according to which the liquidation must be carried out, so that it consists of a pure arithmetic operation.
The competence to know the actions derived from the agency contract shall correspond to the Judge of the agent’s domicile, any agreement to the contrary being null and void (second additional provision of the LCA).
In view of the foregoing, it is advisable for the commercial agent to go to a competent lawyer to supervise the contract he intends to sign in order to guarantee all his rights and obligations.
Luis Trigueros Von Korff
This article is not considered as legal advice