Onder 7.8 Parket bij de Hoge Raad 7 juli 2016

16. Having thus excluded the independent agents from the term “permanent establishments”, it would likewise not be in the interest of international economic relations to treat all dependent agents as being permanent establishments. Treatment as a permanent establishment should be limited to dependent agents of those enterprises which, in view of the scope of their agent’s authority or of the nature of their business dealings, take part to a particular extent in business activities in the other State. Therefore, the Article proceeds on the basis that only persons having the authority to conclude contracts shall be treated as permanent establishments. The term “general authority” which has been commonly used in bilateral conventions has been abandoned and replaced simply by the term “authority”. In practice, it seems unlikely that any dependent agents have a completely unfettered authority to conclude contracts. In all cases the autority must be to some extent cicumscribed. For administrative reasons it seems advisable to avoid the difficulties which would inevitably arise if the questions whether or not the dependent agent is a permanent establishment had to be decided by reference to the precise extent of his authority. When the agent has sufficient authority to bind the enterprise’s participation in the business activity of the other country in such that the agent should be deemed to be a permanent establishment. The use of the term “permanent establishment” in relation to a person, presupposes, of course, that that person makes use of his authority repeatedly and not merely in isolated cases.

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