Spain: Vendor, Commercial Representative, Commercial Agent or Distributor

22 June 2021 - Michael Fries

The difference between vendors, commercial representatives and commercial agents is not always simple, since all of them promote the sale of goods or services on behalf of another party. The form of their remuneration (fixed and/or variable) may also coincide, although in the case of commercial representative and commercial agent, remuneration by commission is predominant in practice.

Michael Fries Abogado & Rechtsanwalt +34 91 319 96 86

It is very important to distinguish these terms correctly and precisely, since they are subject to various imperative regulations that may not be modified under contract or only in a very limited manner. These different regulations have completely different legal implications for the company, especially when the contractual relationship ends or in case of conflict.

For example, the employment relationship of the vendor (vendedor) is subject to the general provisions of the Workers’ Statute and the corresponding provisions of the collective bargaining agreement. In the case of the commercial representative (representate commercial), this is a special employment relationship regulated in the corresponding Royal Decree. Both the vendor and the commercial representative are workers in the view of Spanish labour legislation. Nevertheless, while the vendor works in a fixed workspace and at the company, the workplace of the commercial representative is outside the company for which he/she works. In this regard, he/she also organises his/her own work schedule. Notwithstanding, both must be registered with the Social Security. Failure to comply with the Social Security obligation may give rise to inspections and penalties for the company. On the contrary, a commercial agent (agente commercial) is an independent merchant who is subject to the regulations of the Spanish Law on Commercial Agency Contracts (Ley de Contrato de Agencia Comercial). They organise their activities in an independent manner. In contrast to the commercial representative, a commercial agent is not subject to the company’s instructions, as there is a mercantile contract with the client. There is no obligation to be registered with the Social Security. In this regard, the commercial agent is a freelancer.

If the employment relationship with the salaried vendor or commercial representative ends, the company usually must pay an indemnity, the amount of which varies between the two figures. If the agency contract is withdrawn by the company, the agent is not entitled to compensation for dismissal, rather, in principle, to an obligatory client indemnity and, where applicable, to compensation for unamortised investments. While the vendor and the commercial representative must argue their cases before the Labour Courts, the commercial agent must go before the Court of First Instance.

Finally, the distributor (distribuidor) or concessionaire (concesionario) purchases and sells the products on his/her own behalf. They are completely independent merchants who, in principle, have no reason to be included in the company’s distribution structure; they obtain their profits from the sales margin. As such, distribution contracts are not subject to any mandatory, special legal provisions and allow the contracting parties the most contractual freedom possible.

The essential, differentiating characteristic between the aforementioned legal forms is their varying levels of dependence on the company.