Transport commissioner

The transport commissioner , is an intermediary of trade, organizer of Goods transport. It is about a regulated profession.

According to the card of the Chamber of commerce and industry of Strasbourg, the activity of transport commissioner is a business transaction by which the commission agent will organize and make carry out under his responsibility and in his own name, a goods transport according to the modes of its choice for the account of a principal. The activities of grouping, freighting, office of city or organization of transport concern the same regulation. (Decree 90-200 of March 5th, 1990)

Definitions

According to the Lamy transport - Volume 2 - November 2003

Fundamental criteria of the commission of transport

Let us suppose a Lyons industrialist having to dispatch goods on Cordoba (Argentina). This industrialist can choose to deal with all itself. He will thus treat successively with a French terrestrial conveyer for the routing of the goods to Marseilles, then with a harbor intermediary, then a maritime transport, then, again, a harbor intermediary in Buenos Aires and, finally, an Argentinian terrestrial conveyer for the final course on Cordoba. One sees the sum of research and expenses that would represent and, moreover, the legal insecurity which would result from this for our exporter: because, if the goods are damaged in the course of transport, it will be, according to the case, brought to plead in Marseilles according to the French right, in front of the courts of Cordoba according to the Argentinian right, or in front of the jurisdiction declared qualified by the clauses appearing in the back of the bill of lading…

The Lyons industrialist has one second solution: to address to a professional transport of his city, which, after study of its problem, will propose to him to deal with it with the help of such remuneration. From this moment, the exporter will be discharged from any concern, it will not have to deal more with nothing. It is its interlocutor who will get busy to find the various chain links from transport and to treat with them. To the peace of spirit and the time-saver inherent in this second formula, an advantage not less important is added on the legal level: indeed, if a damage occurs in the course of transport, at some time that it is, the Lyons industrialist will be able to be restricted to assign in France the project superintendent of the operation, which will answer towards him of the whole of the participants. This project superintendent which is given the responsability to make carry out - and if required to carry out itself to some extent - the administrative and material operations necessary to the routing of the goods, by endorsing the faults of its substituted, it is the transport commissioner to the French direction of the term (see lexicon).

Of course, the commission of transport can apply to operations much more elementary: it starts, for example, with the subcontracting of a road transport from Lille to Marseilles.

Absence of legal definition

With the question “what a commission agent? ”, the Commercial law, in a section entitled “Of the commission agents in general”, answers: “The commission agent is that which acts in his own name or under a social name for the account of a principal” (C. Com., Article L. 132-1, al. 1). On the other hand, with the question “what a transport commissioner? ”, not of response in the aforementioned Code or some other legal text. It is consequently with jurisprudence that returned the care to define the commission of transport.

Jurisprudential definition

The Court of appeal currently gives commission of transport the following definition, taken again by many stops of call (for example, CA Versailles, 12th CH., Dec. 9, 1993, BTL 1994, p. 102, more recently CA Versailles, 12th CH., May 16th, 2002, co. Tyt Textile C co. Infinitive and others, BTL 2002, p. 440, in extract): “The commission of transport, convention by which the commission agent commits himself towards the principal achieving for the account of this one the legal documents necessary to the displacement of the goods of a place for another, is characterized by the latitude left to the commission agent freely organize transport by the ways and means of its choice, under its name and its responsibility, as by the fact that this convention carries on transport from beginning to end” (Case. Com., 16 févr. 1988, No 86-18.309, Bull. civ. IV, No 75, p. 52, BT 1988, p. 491; Case. Com., 6 févr. 1990, No 88-15.495, Lamyline).

If this definition is broken up (that we will just allow ourselves to discuss in what it the quality of commission agent seems to bind to the assumption of responsibility of transport from beginning to end: to see No 9), one sees appearing a certain number of basic elements and one can, ultimately, pose in theory that the commission agent is:

an intermediary, which distinguishes it from the conveyer itself (see Nos 4 to 8);
an organizer, which implies a sufficient freedom in the choice of the modes and haulage companies and differentiates it from the simple agent who is the forwarding agent (see Nos 9 to 16). Of course, more basically, the commission of transport supposes a service whose displacement of the goods constitutes the main object (CA Aix-en-Provence, 2nd CH., May 4th, 1994, BTL 1994, p. 450, in extract);

Concluding in its personal name the contracts necessary to the realization from the operation from transport, which separates it from the broker and, again, of the agent (see No 17).

The intervention of a transport commissioner thus brings the superposition of two contracts: the shipper and the commission agent are bound by a contract of commission of transport, whereas the contract of carriage itself is concluded between the commission agent and the conveyer. One can add that the remuneration of the transport commissioner in general takes the form of a fixed price, not detailing the cost of the various successive services (see No 19).

The first two elements are essential. There is commission of transport only in the presence of one company intervening like intermediary and with a sufficient room for maneuver in the organization of the operation. If the set of these the first two criteria lets remain a doubt, one will make application of the third and one will deduce quality from commission agent owing to the fact that the company appears in name, as shipper or charger, on the documents of transport. The criterion drawn from the form of remuneration will not intervene, him, that with title completely back-up troop. It goes, in addition, of oneself that the quality of commission agent does not imply monopoly of transport of the customer (CA Amiens, 3rd CH., 6 juill. 1989, Deruy be qual. C Road transport of Aisne and North, Lamyline).

Definition of the standard contract subcontracting

The standard contract subcontracting recently approved by decree (D. No 2001-659, 19 juill. 2001, 22 Olympics juill., p. 11846; to see our 23 and S.) takes again the elements of the definition released by jurisprudence. For the terms of its article 3.2, it is necessary to understand by transport commissioner, also called organizer of goods transport, “any service provider who organizes and makes carry out, under his responsibility and in its proper name, a goods transport according to the modes and the means of its choice for the account of a principal”. Incidence of the administrative status. - The inscription of the company to the register of the transport commissioners is not obviously sufficient to establish that it intervened like such in a given operation (Case. Com., Oct. 6, 1992, No 90-19.259, BTL 1992, p. 671, in extract; CA Paris, 5th CH., Dec. 18, 1996, Europa SCA Express train C Philippe Heik, Lamyline; CA Rennes, 2nd CH., June 5th, 1986, BT 1986, p. 631), even if it can constitute an additional element taken into account to sit inward conviction of the judges (T. Com. Nanterre, 6th CH., Nov. 9, 2001, SA Schenker C co. Anglia Forwarding Ltd).

Contrary, the defect of inscription to the register does not cause to deprive this intermediary of quality of commission agent (CA Paris, 5th CH., 9 févr. 2000, Hamburg Sudamerikanishe Gesellschaft C All Shipping Service, DMF 2001, p. 392). In the same order of idea, it was judged that the irregular administrative status of the commission agent because of his noninscription does not vitiate the contracts signed with its customers who do not have to check his enabling (T. Com. Mount-of-Marsan, 6 avr. 2001, SA Scalandes C SA Dauvergne, BTL 2001, p. 340, in extract). Thus, out of any appreciation of the administrative status of the company, “the operation… must be defined taking into consideration factual element only constituting it” (CA Versailles, 12th CH., May 16th, 2002, co. Tyt Textile C co. Infinitive and others, BTL 2002, p. 400, in extract).

Conditions of exercise

The data sheet chamber of commerce and of industry of Paris specifies the conditions of exercide of the profession.

Inscription with the register of the transport commissioners

The transport commissioner must, initially, be registered with the register of the transport commissioners, held by the Regional management of the Equipment (DRE) of the place where the premises of the undertaking are located or, failing this, its main establishment. The request for inscription, which gives place to the delivery of a certificate, is lodged with the regional prefect. The inscription is subordinated to three conditions:

The professional capacity

The certificate of professional capacity is delivered by the regional prefect with the people answering the one of the following conditions:

possession of a diploma of level III (vat +2) either specialized in transport or of training legal, economic, countable, commercial or technical and comprising at least two hundred hours of management;
the success of an examination writes specific;
the exercise during at least five consecutive years of framing or administrative duties within a company of road transport or transport commissioner (without to have ceased the activity since more than three years at the date of the request of the certificate by the interested party).

the professional standing of the legal representative of the company

This condition must be satisfied by the tradesman chief with individual business, the associates and the managers of the partnerships, by the active associates and the managers of the limited partnerships, by the managers of the limited liability companies, by the chairman of the board, the members of the directory and the managing directors of the limited companies, by the president and the officers of the company by simplified actions, by the natural person who ensures the permanent and effective direction of the line of business.

Any person is honourable not having been the subject of a judgment mentioned with the bulletin n°2 of the police records.

financial capacity

The transport commissioner must have of stockholders' equity and reserves or banking guarantees of an entire amount at least equal to 22.800 euros.

Note: the amount of the guarantees cannot exceed half of the exigible amount, that is to say 11.400 euros.

The inscription on this register entitles the commission agent to carry out any operation of transport on the metropolitan territory. This inscription is personal and inalienable: in the event of transmission or of hiring of the goodwills, the recipient of the transmission or the tenant will have to ask for a new inscription. Any change likely to modify the situation of the company must be made available of the regional prefect within one month.

When it is noted serious deficiencies or repeated ascribable with a commission agent at the time of his activity (not observance of the regulation of transport, work or safety), the regional prefect can, after opinion of the commission of the administrative sanctions, foundation raft temporarily or final the company of the register of the commission agents.

Registration with the company and trade register

His activity being commercial, the transport commissioner must register himself with the company and trade register (RCS), either as an individual business, or in the form of trading company. The certificate delivered by DRE must accompany the request by registration deposited in the Center of Formalities of Companies (CFE) of the Chamber of commerce and of qualified Industry.

Exercise by the foreign companies

The nationals of the European Union have access to the profession transport commissioner under the same enumerated conditions French (provided however of some installations relating to justifications required).

For the nationals of the countries except European Union, it is necessary to distinguish the Member States (total freedom of establishment provided conditions of exercise of the profession are met) or non-member the World Trade organization where the principle of reciprocity applies is necessary that of reciprocity with France the exercise of the activity of transport commissioner exists a bilateral agreement).

The latter must be titular of a chart of foreign tradesman.

See too

the Council in Logistic logistics
Transport
Road transport
Road transport of goods

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