Compensation claim of the commercial agent
The commercial agent's right to compensation is regulated in Section 89b of the German Commercial Code ( HGB ) and is part of commercial agency law, which in turn is assigned to distribution law . The following statement by three chamber presidents of the Munich Regional Court is often quoted in relation to the compensation claim :
"The HGB does not offer a more imprecise and regularly 'contentious' provision in terms of reason and amount than § 89 b HGB, which often has very high claims and litigation over many years"
Basic idea of the legal regulation, legal sources
The compensation claim is intended to provide the commercial agent with consideration for an advantage of the entrepreneur due to his performance. The advantage of the entrepreneur lies in the continued use of the customer base created by the commercial agent even after the commercial agency contract has ended . This additional remuneration of the commercial agent is also determined in terms of reason and amount by reasons of equity.
The basis for claims is Section 89b of the German Commercial Code. This standard formally implements Art. 17 Paragraph 2 of the "Directive of the Council of the EC of December 18, 1986 on the coordination of the legal provisions of the member states relating to independent commercial agents" (86/653 / EEC). However, the model for the directive was the previously applicable German commercial agency law, including the regulation on compensation claims.
In the field of insurance agents, the compensation claim is in practice often processed according to the so-called "principles for calculating the amount of the compensation claim", the validity of which is agreed in the agency contract and which exist for different insurance classes. These “principles” serve to simplify the calculation of entitlements. They have no legal character.
Eligibility
Full-time commercial agents within the meaning of Section 84 of the German Commercial Code (HGB) , full-time insurance agents or building society representatives and petrol station operators are eligible . Under certain conditions, authorized dealers, franchisees and commission agents can be entitled to a compensation claim analogous to § 89 b HGB. In principle, brokers , employed travelers and representatives in part-time jobs are not entitled to compensation .
Eligibility requirements
Section 89 b of the German Commercial Code (HGB) contains several eligibility requirements that must be cumulative so that the commercial agent receives a compensation payment:
Contract termination
The compensation claim only arises with the termination of the commercial agency contract. The reason for the termination (including termination, termination agreement, expiry of the agreed time limit) is basically irrelevant, unless it leads to a legally regulated one
Disclaimer of Claims
The law provides that in cases in which the commercial agent cancels the contractual relationship, there is generally no right to compensation. However, the legislature again makes an exception to this for cases in which the termination is due to age or illness-related reasons or the behavior of the entrepreneur has given the commercial agent a justified reason for the termination. If this exception applies, there is a right to compensation for the reason.
Furthermore, the compensation claim is excluded if the entrepreneur has terminated the contractual relationship and the termination was based on an important reason due to the culpable behavior of the commercial agent. This can be the case, for example, if the commercial agent sells competing products during the current contractual relationship.
Finally, the right to compensation is excluded in a third group of cases if, on the basis of an agreement between the entrepreneur and the commercial agent, a third party enters into the contractual relationship instead of the commercial agent. In these cases the legislature assumes (without this being a prerequisite) that the departing commercial agent will receive financial “compensation” from the entering third party.
Assertion of the claim
The commercial agent must assert the compensation claim within one year (so-called material exclusion period) after the end of the contract. If he does not do this, the claim is irrevocably forfeited. To assert the claim, it is sufficient to clearly indicate to the entrepreneur that compensation is being claimed. No numbering of the amount of the claim is necessary for assertion. To facilitate evidence, the assertion should be made in writing with proof of receipt.
Loss of commission
As a result of the termination of the contract, the commercial agent had to incur commission losses from already concluded or future transactions for a compensation claim according to the version of the law that was valid until August 5, 2009. According to the version of § 89b HGB, which has been in effect since August 5, 2009, the element of loss of commission, literally and as a mandatory element, is no longer applicable and has been downgraded to the optional equity element of "missing commissions" (§ 89b, Paragraph 1, No. 2 HGB). Since then, compensation can also be owed when granting one-off commission and thus also in the event of a lack of commission losses when the contract is continued. This is also to be observed in the law of the insurance agent.
The commercial agent can only incur losses from transactions that have already been concluded if it was agreed in the commercial agency contract that the commercial agent should no longer be entitled to any commission after the termination of the contract (so-called commission waiver clause).
Losses from future transactions are the basis for the compensation calculation, especially in the area of goods sales. Because the compensation claim is regularly calculated on the basis of the commissions of the last contract year with newly acquired or extended multiple customers, multiplied by the number of years of the forecast period, discounted and then limited by the maximum limit of Section 89b (2) HGB. Such a calculation method is also represented in insurance agency law.
Commission losses are only to be taken into account insofar as they concern business with customers newly acquired by the commercial agent during the term of the contract or with existing customers who have significantly increased sales. Furthermore, these customers must be regular customers, that is, they must have concluded more than one deal in the past or they must assume that they will do more deals in the future. If these requirements are not met, there is no entitlement to compensation.
For the calculation of the compensation of the insurance agent according to § 89b Abs. 5 HGB, not the customers he has recruited but the insurance contracts he has recruited are decisive. However, as continuing obligations, these form business relationships, not unlike in Section 89b (1) HGB.
If commission losses exist, these are forecast for a foreseeable period in the future, for example four years, taking into account a churn rate. The basis of the forecast is basically the commission that the commercial agent received in the last year of the contract from business with customers he has recruited.
Entrepreneurial benefits
It can regularly be assumed that the amount of commission losses of the commercial agent corresponds to the amount of the advantages remaining for the entrepreneur. Something different applies if the entrepreneur shuts down his operations altogether with the termination of the contract or if the customer base created by the commercial agent no longer benefits the entrepreneur for other reasons foreseeable at the end of the contract.
equity
Basically, the compensation determined from loss of commission and business benefits corresponds to equity. It is recognized, however, that the amount determined is to be discounted, since losses and advantages that only arise in the future are to be compensated. The Hoffmann formula or the Gillardon discounting method are available for discounting .
Furthermore, all circumstances of the individual case can be taken into account within the framework of equity. For example, if the entrepreneur (co-) financed a pension for the commercial agent, this can justify an equity discount.
Limitation of the amount of the compensation claim
If the compensation amount determined on the basis of the above requirements exceeds the annual average of the commissions and other remuneration received by the commercial agent in the last five years of the contract, the compensation claim is limited to this annual average. For insurance agents, the upper limit is three times the annual average commission.
Indispensability
According to Section 89b, Paragraph 4, Clause 1 of the German Commercial Code (HGB), the claim for compensation can neither be restricted nor excluded before the end of the contract. An exception only applies if the commercial agent is only to be active outside the territory of the European Community or the European Economic Area (Section 92c (1) HGB) or has been commissioned to broker or conclude transactions that involve chartering, handling or equipping ships or booking passages on ships (Section 92c (2) HGB).
Contractual agreements that violate this prohibition are ineffective. For example, the agreement to apply the "principles for calculating the amount of the compensation claim" before the end of the contract does not bind the insurance agent. This does not prevent him from requesting a higher compensation calculated in accordance with the legal requirements.
literature
- Küstner / Thume, Handbook of the entire field service law , Volume II, The compensation claim of the commercial agent, 8th edition 2007, ISBN 3-8005-1459-1
- Raimond Emde, "Distribution Law", commentary on § 84 to 92c HGB, 2nd edition 2011, § 89b, ISBN 978-3-89949-801-1
See also
supporting documents
- ↑ Law on the new regulation of the legal relationships with bonds from total issues and on the improved enforceability of claims by investors from false advice, Federal Law Gazette 16/2512 (2519); on the amendment and the underlying ECJ judgment Balke / Evke de Groot NJOZ 2010, 1551; Christoph NJW 2010, 647; Raimond Emde DStR 2009, 1478 ff; ders. WRP 2010, 844; ders. EWiR 2009, 239; Eckhoff BB 2009, 1609; Koch ZIP 2011, 1752; Semler BB 2009, 2327; Thume BB 2009, 2490 ff; ders. IHR 2011, 7; Steinhauer EuZW 2009, 887; Westphal DB 2010, 1333
- ↑ Emde, Distribution Law, 2nd edition 2011, § 89b Rn. 170 ff .; Emde, DStR 2009, 1478, 1483; Thume BB 2009, 2490, 2494
- ^ Higher Regional Court Düsseldorf, ruling v. June 25, 2010 - I-16 U 191/09 , BeckRS 2010, 24310; Koch ZIP 2011, 1752 (1555); Emde EWiR 2009, 239 (240); Emde DStR 2009, 1478 (1482); Thume BB 2009: 2490 (2491); Westphal DB 2010, 1333 (1334); loc. LG Munich I, ruling v. February 23, 2011 - 10 HKO 3966/10
- ^ Raimond Emde BB 2011, 2755 (2765).
- ↑ To the calculation Raimond Emde, Vertriebsrecht, 2nd edition 2011, § 89b Rn. 361 ff.
- ^ Raimond Emde BB 2011, 2755 (2765).
- ^ Raimond Emde BB 2011, 2755 (2765).
- ↑ OLG Celle, judgment of May 16, 2002 - 11 U 193/01 , VersR 2002, 976, 977; Raimond Emde, Distribution Law 2nd Edition 2011, § 89b Rn. 539
