ABSTRACT
The EU Member States’ law on commercial agency has been harmonized by Council Directive 86/653/EEC. The Directive introduced numerous mandatory provisions which almost all Member States implemented as national mandatory rules. Freedom of contract in commercial agency law is thus substantially limited in these jurisdictions. Denmark, Estonia, and Germany, on the other hand, expressly allow the parties of a commercial agency contract to derogate from all provisions governing the commercial agency under certain conditions. Is this approach compatible with the Directive? Does the Directive leave any room for full freedom of contract in commercial agency law? Should other Member States follow the example of Denmark, Estonia, and Germany? This chapter provides answers to these questions. It demonstrates that the ECJ implicitly decided in Agro Foreign Trade & Agency that the Directive only applies if there is a sufficiently close link with the EU. Hence, the Member States enjoy considerable room for manoeuvre to allow way more freedom of contract than currently admissible under most national laws – and the Member States should make use of it.
