In Poland, the agency agreement is governed by Articles 758 et seq. of the civil code; in addition, the country has implemented the European directive on commercial agents (Dir. no. 86/653) in its internal law.
Pursuant to Polish legislation, the contract in question is configured as a contract between entrepreneurs (so-called qualified contract), under which the commercial agent is required, in the context of the economic activity exercised, to facilitate, on an ongoing basis and for remuneration, the conclusion of contracts in favor of the principal. The agent's activity can then be accompanied by the granting of an exclusive right, in relation to a specific geographical area, or to a specific customer portfolio.
The role of agent can be played by either a natural person or a legal person established for this purpose; in Poland, no register of commercial agents has been established (since the exercise of the activity is not subject to this formal fulfillment).
The contractual form and requirements characterizing the Agency Contract
The contract is not subject to formal requirements, nor to registration (it being understood that, as always, for the sake of certainty it is advisable to resort to formalization in writing).
Polish law tends not to admit the figure of the sub-agent, since the agent must fulfill contractual obligations in person, without prejudice to the possibility of entrusting these tasks to others in the presence of the express consent of the principal. According to the Polish law, the agency contract can be stipulated for a fixed or indefinite period, with no minimum duration; the law of the country does not provide for any probationary period for the agent.
Only in the case of a contract concluded for an indefinite period, the faculty of unilateral withdrawal is admitted, provided that in compliance with a notice period whose duration is parameterized on that of the relationship; the law does not allow the parties to shorten these terms by agreement, but only to extend them, and only on condition that the notice provided for the principal is no shorter than that granted to the agent. The contractors are then allowed to withdraw without observing the notice period in the presence of what are defined as "extraordinary circumstances", i.e., events of seriousness relating to the failure of the other party to comply with the duties imposed on it. With reference to the remuneration paid to the agent, the related regulations are contained in Articles 761 et seq. cod. civ.
The agent's right to a commission
In general, it can be stated that the agent is entitled to receive a commission for the contracts concluded by the principal during the validity of the agency relationship and attributable to his activity or to customers previously procured by him for contracts of the same type, as well as, in the case of exclusivity on a specific territorial area or on a customer portfolio, a commission in relation to contracts concluded without the participation of the agent, but with subjects falling within the territory entrusted to him or his customer package. The law also recognizes, under certain conditions, the agent's right to commission even for business concluded by the principal after the termination of the agency agreement, but the conclusion of which is a consequence of the agent's intervention, or in any case strongly attributable to it.
Obviously, it is desirable that the contractors adopt a detailed regulation of the economic aspects, to avoid conflicts on this point. In the absence of express decisions by the parties, the Polish legislation recognizes the agent the right to pay a commission that is usual in relation to similar relationships, having regard to the type and place of the activity carried out, or in any case (if it is not possible the determination with the above criteria), to a commission classified as "adequate".
Generally, the right to commission is configured when the principal fulfills the service to which he is bound by virtue of the contract concluded thanks to the agent, and, as regards the collectability of the same, Polish law dictates the terms of payment through mandatory dispositions. In order to protect the agent's right to correctly determine the remuneration, the relevant legislation requires the principal to periodically disclose the list of contracts concluded thanks to his intervention and the economic-based data, also recognizing the agent’s right to view the principal's accounting books. The agent's right to commission may lapse in the event that a contract concluded with a customer is not fulfilled for reasons clearly not attributable to the principal.
Even after the termination of the contract, the parties may establish a non-compete obligation for the agent, which however must be adequately remunerated through the payment of an indemnity.
As clarified, in Polish law the agency's guidelines consists of numerous mandatory provisions, with the consequence that any contractual agreement in contrast with them will be considered invalid; it is therefore evident that the contracting parties will need to pay close attention to the contractual regulation of the relationship.