Agency agreement for certification
|Technical regulation in EAEU|
|Principal legal acts|
According to the law of the Eurasian Economic Union (hereinafter — EAEU), these persons may apply for the EAC document (Certificate or Declaration of conformity to the Technical regulations of the EAEU):
- Product manufacturer;
- Seller (importer);
- Representative of the manufacturer.
The applicant should be registered in one of the EAEU countries (as a legal entity or sole proprietor).
Representative of the manufacturer
Representative’s services are usually required if the manufacturer is a foreign company and has no registered branch or subsidiary in the EAEU. In such case the manufacturer may not apply on their own.
The representative (hereinafter referred to as the Agent) acts on behalf of the manufacturer based on a special agreement — agency agreement. This agreement, in particular, should vest the agent with powers to interact with certification authorities and testing laboratories, apply for certificates of conformity, register or cancel declarations of conformity, etc.
Requirements to representatives arising from the EAEU law are as follows:
- The agent should be an EAEU resident (a legal entity or a sole proprietor);
- The agent should have an agency agreement with the manufacturer of products subject to confirmation of conformity;
- The agreement should authorize the agent to perform evaluation of conformity of products to the Technical regulations of the EAEU;
- The agreement should stipulate liability of the agent if any non-conformity of imported or circulated products to the Technical regulations of the EAEU is found.
The EAEU law does not pose other obligatory requirements to the agent or the agreement.
However, the Eurasian Economic Union treaty tells that the liability for violation of the Technical regulations as well as of the certification procedures shall be determined by national laws of member countries. Furthermore, certification authorities, testing laboratories, and supervisory state bodies in each EAEU country act according to the national technical regulation laws. Therefore, one should also consider provisions of such laws when drafting the agreement between the agent and the manufacturer.
In the Russian Federation certification is governed by the Federal Law “On Technical Regulation” dd. 27.12.2002 No 184-FZ.
The information below is provided according to legislative and regulatory compliance practices in the Russian Federation.
It is important to note that distributor agreement may not be deemed as an “agency agreement” in general, as the distributor acts as an official representative of the manufacturer only in respect to distribution of products.
When the agency agreement should be provided?
The agency agreement is needed to obtain an EAC document for series produced goods — i.e. for the goods produced over a long period of time and imported (distributed) in many different independent batches. Certificates and declarations of conformity for series produced goods may be issued for a term up to 5 years.
Mandatory submission of such agreement to the certification authority is required by sections III and IV of the Decision of the Board of the Eurasian Economic Commission dated April 18, 2018 No. 44 “On Standard Schemes of Conformity Assessment”.
Form of the agency agreement
Powers of the agent
The agreement should obviously vest the agent with powers required to perform certification of products. These powers imply choosing a certification authority and testing laboratory and interacting with them, the right to manage samples of products, the right to register and cancel certificates and declarations, to submit claims.
The agent may also need rights to interact with customs authorities to import samples of products. If manufacturer’s distributors or trade partners wish to use documents obtained by the agent to import or sell products, the agent shall issue a power of attorney in their name. All these rights should be granted in the agreement in advance, based on the specific circumstances.
Obligations of the agent
In general, it is recommended to specify obligations and liabilities of the agent thoroughly and to the maximum extent of compliance with the law. This will help avoid misunderstanding and excessive approval procedures from certification authorities, and questions from state bodies.
However, one should remember that Russian law oblige the agent to:
- Only allow selling of products after the required EAC documents are obtained;
- Suspend or stop selling (importing) of the products if the EAC document is suspended or terminated (or expired);
- Suspend manufacture of the products that do not comply with the Technical regulations according to test results;
- Reimburse any damages caused due to non-conformity of products to the Technical regulations.
Of course, in most cases the agent will not be able to comply with these requirements without cooperation from the manufacturer. It is recommended to stipulate in the agreement mutual obligations of the manufacturer and the agent, ensuring fulfillment of these provisions.
Below a minimal bilingual form of the agreement is provided, that complies with the law of the EAEU and Russia and takes into account all basic recommendations above.
Agency agreement form
(Russian + English, MS Word)
- Here and later in the text products shall mean those subject to mandatory confirmation of conformity to the Technical regulations of the EAEU.
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