The international transport of goods often involves many different players. Among them, the freight forwarder plays a special role in organising and securing operations. Its legal status, governed by French law, determines its rights and obligations vis-à-vis the other players in the logistics chain.
Definition and legal status of the freight forwarder
The freight forwarder is distinguished from other intermediaries by precise criteria established both by legislation and case law.
The dual definition of freight forwarder
French law offers two complementary definitions of freight forwarder.
According to the French Transport Code, a freight forwarder is a person who "organises and arranges, under his own responsibility and in his own name, the carriage of goods by the mode of his choice on behalf of a principal".
The Cour de Cassation (French Supreme Court) defines freight forwarding as "the agreement by which the freight forwarder undertakes towards the principal to perform on the principal's behalf the legal acts necessary for the movement of goods from one place to another".
These two approaches have the same essential elements: the freight forwarder acts in his own name but on behalf of a principal, and has a degree of autonomy in organising the transport.
Determining qualification criteria
To qualify as a freight forwarder, three cumulative conditions must be met:
- An intermediary position Commission agent: the commission agent does not move the goods himself, but entrusts it to a third party. If he carries out the transport, he becomes a carrier. However, case law accepts that he may perform part of the carriage as an accessory without losing his status as commission agent.
- An autonomous transport organisation The freight forwarder must have the freedom to organise the transport "from start to finish". This autonomy concerns the choice of routes and means of transport. If the intermediary is bound by precise instructions from his principal, he will be described as an agent or forwarding agent.
- An action in his own name Freight forwarder: the freight forwarder contracts with carriers in his own name, even if he is acting on behalf of his principal. He is generally referred to as the consignor on the transport documents.
Other elements, such as flat-rate remuneration, may constitute additional indicators, but are not decisive for qualification.
As the liability of a commission agent is much more extensive than that of a mere agent, this classification has important consequences in legal terms. You can find a detailed analysis of this liability regime in our article on the liability of the freight forwarder.
Distinction from other transport intermediaries
The commission agent differs from other professionals with similar functions:
- The freight forwarder A simple agent who carries out the precise instructions of his principal without having any autonomy in organising the transport.
- The freight broker This service puts a shipper and a carrier in contact with each other without entering into a contract in the shipper's own name.
- The sub-contracting carrier The shipper: moves the goods himself, even if he has not entered into a direct contract with the shipper.
- The customs agent This is specifically for customs formalities, under a separate legal regime.
It is often the case that the same company combines several of these qualities, which can complicate the legal classification of the contracts entered into. In such cases, the courts seek to determine the nature of the service actually provided, over and above the terms used by the parties.
These distinctions also affect the contractual obligations of each party, as explained in detail in our article on the freight forwarder's contractual obligations.
Regulatory framework
The profession of freight forwarder is governed by specific regulations.
Conditions of access to the profession
To operate legally, commission agents must meet a number of requirements:
- Professional competence This can be justified by a 2-year higher education diploma specialising in transport or a related field, the successful completion of a specific examination, or significant professional experience (five years in a management or supervisory role in a transport company).
- Professional integrity The following conditions must be met: the directors must not have been convicted of certain offences listed in the Transport Code (breaches of the highway code, labour law, etc.). The regional prefect may impose a procedure for loss of good repute, for a maximum period of three years.
Nationals of the European Union and the European Economic Area benefit from the same conditions of access to the profession as French nationals. For nationals of other countries, additional conditions may apply on a reciprocal basis.
Entry in the register of commission agents
To practise the profession, you must be entered in the freight forwarders' register kept by the government departments responsible for transport in the region where the company's head office is located.
Registration is granted after verification of professional aptitude and good repute. It is personal and non-transferable. If the business is transferred or leased, the beneficiary must apply for a new registration.
Operating without registration is an offence punishable by one year's imprisonment and a €15,000 fine under article L. 1452-3 of the French Transport Code.
Companies may be automatically struck off the register if they cease to meet the conditions for registration, or if they cease trading for more than a year. It may also be ordered, temporarily or permanently, in the event of serious breaches of transport or labour regulations.
Documentary obligations
The commission agent must comply with a number of documentary obligations:
- Draw up transport documents with accurate information
- Issue a receipt for certain activities (groupage, city office, road chartering)
- Keep a register of chartering operations
- Check the documents supplied by the client
Failure to comply with these obligations can result in penalties ranging from fines to imprisonment for obstructing checks.
For a complete overview of the issues involved in transport law, please consult our page dedicated to transport law services which presents our areas of expertise.
The legal regime applicable to commission contracts
The freight forwarding contract is subject to a specific legal regime that varies according to the national or international context.
In French domestic law
The freight forwarding contract is governed by several sources:
- The French Commercial Code (articles L. 132-3 to L. 132-9)
- The Transport Code (articles L. 1432-7 to L. 1432-11, supplemented by articles D. 1431-1 to D. 1432-3)
- The standard transport commission contract (annexed to the Transport Code by article D. 1432-3)
These texts define the obligations of the parties, the extent of the commission agent's liability and set compensation ceilings.
The standard contract applies automatically in the absence of a written agreement defining the relationship between the parties. It is not mandatory, however, and the parties may derogate from it by means of specific clauses.
The liability of the commission agent is twofold: he is liable for his personal faults but also for those of his substitutes (carriers and other intermediaries he uses). This particularly heavy liability distinguishes them from other commission agents under ordinary law.
For a full analysis of the status, obligations and liability of the commission agent, please consult our complete guide to the commission agent. freight forwarder.
In international law
In the absence of an international agreement specific to freight forwarding, the law applicable to an international contract is determined in accordance with the rules of private international law.
The European "Rome I" regulation (no. 593/2008 of 17 June 2008) stipulates that the contract for the provision of services is governed by the law of the country in which the service provider has his habitual residence. In the case of a contract for the provision of transport services, the law of the country in which the freight forwarder is established therefore applies in principle.
However, the case law of the Court of Justice of the European Union has clarified that where the main subject matter of the contract is the actual carriage of the goods, the rules applicable to the contract of carriage may prevail.
This question may have important consequences, since the French system of freight forwarding, with its extended liability of the freight forwarder, has no exact equivalent in other national laws. Similar intermediaries under foreign law (German spediteur, English forwarding agent, Italian spedizioniere) do not generally have the same liability in respect of their substitutes.
A distinction must be made between these intermediaries depending on whether or not they assume the transport risks. Only those who assume these risks can be treated in the same way as a French freight forwarder, but even in this case, the automatic guarantee for vicarious liability remains a French specificity.
For a company wishing to use the services of a freight forwarder, precise knowledge of its legal status is essential to determine the extent of its rights and obligations. The choice of law applicable to the contract can have significant consequences in the event of a dispute.
Do you have questions about the legal status of your transport or commission business? Our firm can help you secure your operations and defend your interests. Consult our transport law services for more information.
Sources
- French Commercial Code, Articles L. 132-3 to L. 132-9
- Transport Code, articles L. 1411-1, L. 1432-7 to L. 1432-11, D. 1431-1 to D. 1432-3
- Decree no. 2013-293 of 5 April 2013 approving the standard transport commission contract
- European "Rome I" Regulation no. 593/2008 of 17 June 2008
- Case law of the Cour de cassation and the CJEU on the status of freight forwarder
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