However, distinguishing correctly and precisely between these legal figures is crucial, as they are governed by different mandatory regulations, which can not – or only to a very limited extend – be changed in the corresponding contract. Accordingly, these mandatory regulations have a significant impact when drafting the contract.
Under Spanish law, sales representatives have a special employment relationship regulated by a special royal decree. They are considered employees in terms of the Spanish labour and employment laws, even if their workplace is outside the company premises and even if they freely organise their work schedule. Their remuneration can be fixed, variable or both.
The last aspect – the remuneration of sales representatives – was recently the object of a landmark ruling of the Spanish Supreme Court, issued in order to unify existing case law.
A sales representative brokering insurance contracts had brought an action against the notice of dismissal issued by the insurance company. The dismissal was declared unfair, entitling the sales representative to a severance payment. In order to calculate such payment, the sales representative’s salary had to be determined. The employment contract stipulated a “daily salary” of EUR 32.99, consisting of the average fixed salary and the average additional commissions paid, while Spanish labour laws foresee a minimum daily salary of EUR 36.43.
The Spanish Supreme Court confirmed the ruling of the court of appeal and unified the existing case law by establishing that sales representatives, even though they are subject to special laws, are entitled to receive the minimum salary stipulated by the general labour legislation.
According to the Spanish Supreme Court, such entitlement to the minimum salary is founded, on the one hand, on the fundamental right to sufficient remuneration laid down in article 35 of the Spanish Constitution, and on the other hand, on the provisions of the European Directive on Adequate Minimum Wages of 19 October 2022. Furthermore, the royal decree, which regulates the special employment relationship of sales representatives, also makes references to the Spanish Workers’ Statute as far as the essential contractual conditions are concerned, which, in turn, provide for the mandatory application of minimum wages.
Currently, in Spain, the legal minimum wage is EUR 37.80 per day, and, in Germany, EUR 12.41 per hour.