In two recent rulings, the Court of Cassation consistently reiterated that classification depends neither on the contractual designation nor even on the contractual structure of the relationship, but on the reality of the tasks performed, and in particular on the existence of negotiating power, understood broadly. These converging decisions sanction the same error made by the trial judges: substituting an abstract or formalistic reading for a concrete analysis of the activity.

Cass. com., 3 Dec. 2025, No. 24-16.962 and Cass. com., 7 Jan. 2026, No. 24-17.142.

The same reminder of principle: the contract does not determine status

In both cases, the courts of appeal based their reasoning on the classification given by the parties or the contractual presentation of the tasks, without completing the factual analysis.

In the judgment Guy Demarle of 3 December 2025, the Rennes Court of Appeal had recognised the status of commercial agent based essentially on the terms of the contract and its amendment, without responding to the arguments based on the specific status of independent door-to-door salesperson or investigating what the actual main activity was. The Court of Cassation then pointed out:

‘The application of the status of commercial agent does not depend on the intention expressed by the parties in the contract or the name they have given to their agreement, but on the conditions under which the activity is actually carried out.’

In the Caraïbes chirurgie ruling of 7 January 2026, the Paris Court of Appeal had, on the contrary, refused to classify the company as a commercial agent, considering that the service provider did not have sufficient negotiating power. Here again, the Court of Cassation criticised the judges for not drawing the consequences of their own factual findings.

In both cases, the message is clear: the judge must qualify, not endorse, the qualification given in the contract.

A broad, European conception of ‘bargaining power’

The strongest point of convergence between the two decisions lies in the definition of bargaining power, which is central to the status of commercial agent.

In its ruling of 7 January 2026, the Court adopted a particularly instructive reasoning, directly inspired by Directive 86/653 and the case law of the CJEU (in particular Trendsetteuse, 4 June 2020).

This decision of the Court of Justice had already been confirmed in French law, notably by a decision of 2 December 2020 already discussed in this blog (Court of Cassation, Civil Division, Commercial Chamber, 2 December 2020, 18-20.231).

It states that:

‘The main tasks of a commercial agent are to bring new customers to the principal and to develop business with existing customers,

[…] even if the commercial agent does not have the power to change prices’.

The promotion of products, the identification of the needs of prescribers, and information and advisory activities may therefore be sufficient to characterise bargaining power, provided that they are aimed at promoting the conclusion of contracts on behalf of the principal. In this case, the mere fact that Caraïbes Chirurgie promoted medical devices to healthcare professionals should have led the Court of Appeal to seriously consider the classification of commercial agent.

This approach is indirectly echoed in the ruling of 3 December 2025. In that decision, the Court criticised the Court of Appeal for failing to examine in practice whether the activity of ‘sales representation’ actually constituted negotiation within the meaning of Article L. 134-1, or whether it was confused with network coordination, which is structurally unrelated to the status of commercial agent. Here again, an abstract analysis of the tasks is insufficient.

Taken together, these two rulings outline a consistent and demanding line of reasoning:

• the power of negotiation is understood broadly, in accordance with European Union law;
• promotion, advice and encouragement to contract may be sufficient;
• the judge must analyse the activity actually performed, and not just the contractual structure;
• any decision on classification must strictly comply with the terms of the dispute and the conclusions of the parties.

The difficulty for companies wishing to avoid the status of commercial agent for one of their service providers will therefore be to have a practice that is distinct from the mission of a commercial agent. The contract cannot exclude this status since the actual activity must be taken into account in the event of a dispute.

The stakes are important. Indemnities received by a commercial agent are rather important in France. If a service provider is classified as a commercial agent he will be entitled to receive indemnities when his contract is terminated.

Article written by Olivier Vibert, solicitor at KBESTAN