commercial agent

The sales representatives according to § 84 para. 1 HGB a sales assistant , who as an independent trader are entrusted with, for another contractor businesses to negotiate or enter into its name.

General

The HGB also deals with the function of natural persons who work in a certain way for a merchant . This includes authorized signatory ( Section 48 ff. HGB), authorized representative ( Section 54 ff. HGB), sales assistant ( Section 59 ff. HGB), commercial broker ( Section 93 ff. HGB) and commercial agents. Further sales assistant to the German Commercial Code are the commission (§ § 383 et seq. HGB) and the traveling salesman ( § 55 HGB). The latter provision does not (any longer) explicitly mention the traveling salesman, but is applicable to all authorized agents who are entrusted with doing business outside the business of the merchant on his behalf.

Anyone who is essentially free to organize their work and determine their working hours is self-employed . Constant means that someone is working permanently and not just temporarily as a sales representative. This is guaranteed by the continuing obligation between the entrepreneur and the commercial agent. The commercial agent himself does not need to be a merchant (Section 84 (4) HGB) as is the case with employed insurance intermediaries, while the insurance agent is a commercial agent ( Section 59 (1) and (2 ) VVG ).

species

Commercial agents are differentiated according to the number of clients they work for. The exclusive representative (also called one-company representative or, in the case of insurance groups, a group representative ) may only work for one entrepreneur in accordance with Section 92a HGB. Conversely, from Section 92a of the German Commercial Code, multiple representatives may work for more than one entrepreneur. This is regulated by competition clauses in accordance with Section 90a HGB.

job profile

properties

The legal status of the commercial agent is that of a self-employed person. He is just as much an independent entrepreneur as the entrepreneur he represents. The commercial agent does not have to be a natural person; he can also appear in the form of a legal person or partnership or as a sole trader under a company .

The commercial agent is essentially free to organize his activities and determine his working hours. This personal independence distinguishes him from the employed traveler . In contrast to this, the commercial agent can also work for several providers, provided that this is contractually permitted (so-called "multi-company agent"). A characteristic of the sales representative as a sales assistant is his motivation to independently build up and maintain a long-term customer base for the company (s) represented. In the past few decades, there has been an increasing emancipatory development towards greater entrepreneurial autonomy , in particular through the advance of independent marketing concepts ( sales representative marketing ). Similar to the commercial enterprise , the commercial agency acting as a multi-company agency can create a small assortment for its customers , which, however, unlike the typical retail assortment , has to be limited to complementary articles from different represented companies due to the non-competition principle.

Areas of application

Commercial agents can be involved in the distribution of both consumer and capital goods . The different areas of activity of the commercial agencies are expressed in the various customer groups. A statistical survey by the Central Association of German Business Associations for Trade Brokerage and Sales from 2008 showed that the main customers of trade agencies in Germany are both in the manufacturing sector (industry 47%, craft 19%) and in trade. Around 54% of commercial agencies name retail as their customers, 52% wholesale, 7% go to gastronomy and almost 15% to public institutions. According to the results of the CDH statistics, the number of companies represented by commercial agencies averages 6.0.

The high work motivation associated with your commitment as a self-employed person and your precise market knowledge resulting from direct customer contact make you valuable as sales specialists. However, a natural limit for the use of independent commercial agents can also arise in the case of high consulting intensity that can no longer be carried out by a single employee (especially in capital goods sales) because extensive technical, economic and, if necessary, legal conditions are included in the offer Sales teams. For obvious reasons, these teams are not independent salespeople. Also, no sales representative is used if it is possible to serve the sales market via direct sales , for example by mail order .

The commercial agent usually provides manageable services that he can independently place on the market. Exceptions are large commercial agencies in the form of a corporation with their own permanent or self-employed sub- agents .

Legal issues

Simple matrix representation of the possible representation agreements according to HGB § 84 ff. In Germany.

An entry in the commercial register is no longer required for natural persons as commercial agents in Germany since 2005. A commercial agent is also not necessarily a merchant within the meaning of the Commercial Code; the trade license is sufficient - regardless of whether it is a full-time or part-time activity.

Assessment under social security law

Under certain conditions, the commercial agent may be obliged to pay contributions to the statutory pension insurance despite being self-employed (no employer's share ). That is the case when

the commercial agent in connection with his activity does not regularly employ any other employees subject to compulsory insurance whose remuneration from this employment relationship regularly exceeds € 450 per month and
the commercial agent works on a permanent basis and essentially only for one entrepreneur.

A permanent job for only one employer is accepted by the pension insurance funds if at least five-sixths of the total income of the commercial agent comes from a client. If these requirements are met, the self-employed person is classified as an employee-like person . A bogus self-employment is ruled out by commercial agents by law. The terms “employee-like self-employment” and “bogus self-employment” were legally defined in 1999.

For commercial agencies in the form of independent legal entities (rental sales in the call center segment, sales companies in the field ) there is the possibility of avoiding the compulsory pension insurance. Here, however, the individual employees, mostly freelancers with the status of commercial agents, are responsible for their own insurance. For business start-ups who have been classified as self-employed similar to employees, it is also possible to be exempt from compulsory pension insurance for the first three years after setting up a business.

Commercial agents who are not classified as self-employed workers are not required to take out insurance in any branch of statutory social insurance, but can voluntarily take out insurance in all areas (including statutory accident insurance / employers' liability insurance association and unemployment insurance ).

commission

The usual remuneration of the commercial agent is the commission that he receives for his work with a certain percentage of the turnover he mediates for the represented entrepreneur. The prerequisite for the creation of the commission claim according to Section 87 (1) of the German Commercial Code (HGB) is that the activity of the commercial agent has led to a business transaction between the represented entrepreneur and customer. The amount of the commission rate is negotiated individually. The contractually agreed commission of the commercial agent is structured very differently. The amount of the commission depends primarily on the industry and the value of the mediated goods, possibly also on their position in the product life cycle . The higher the value of the goods, the lower the commission rate, possibly only 5% or 7%. Low-value consumer goods are commissioned at higher rates, possibly up to 50% (e.g. cosmetics or food supplements ).

Powers of representation

The differently designed powers of attorney of commercial agents are reflected in a uniform definition of terms for the task description of a commercial agent. As a rule, if the manufacturer or importer is present on site, medium-level competence and responsibility agreements are concluded. The various possibilities are often not known to the entrepreneur himself, so that resorting to so-called model contracts is highly negligent.

Delimitations

Differentiation of the commercial agent from commercial broker and commission agent

The sales representatives, brokers and commission agents belonging to the sales assistants differ considerably from one another. Commercial agents and brokers both act as brokers, but the broker is not constantly commissioned and has no contractual relationship with a client. The commercial agent acts on the basis of a contract with his client, the broker on the basis of an agency contract with his customer. The commission agent acts as an indirect representative in his business and sells the products in his own name, the commercial agent in someone else's name. The commission agent is not tied to an entrepreneur, while the commercial agent is subject to a non-competition clause. Authorized dealers and franchisors act in their own name and for their own account.

International

The sales representative is called an agent in Switzerland . Commercial agency law is regulated in Art. 418 ff. OR . An agent is any natural or legal person who takes on the obligation to continuously mediate business for one or more clients or to conclude them in their name and for their account, without being in an employment relationship with the client ( Art. 418a Para. 1 OR) . The agent is only deemed to be authorized to broker business, to accept notices of defects and other declarations by which the customer asserts or reserves his right to defective performance by the client and to assert the client's rights to secure evidence. On the other hand, he is not considered to be authorized to accept payments, grant payment deadlines or agree other changes to the contract with the customer ( Art. 418e Paragraph 1 OR). The agent is entitled to the agreed or customary commission for all transactions that he brokered or concluded during the agency relationship, as well as, unless otherwise agreed, for follow-up transactions that are concluded during the agency relationship without his participation, provided that he is the third party as a customer has advertised business of this type ( Art. 418g Para. 1 OR).

Commercial agency law in Austria is regulated by the Commercial Agents Act 1993 (HVertrG) of March 1, 1993. According to this, the term “commercial agent” can be used instead of the term “independent commercial agent” (Section 1 (3) HVertrG). The business in the name of the entrepreneur with a third party is deemed to have been approved by the entrepreneur if the entrepreneur does not immediately, after becoming aware of the conclusion of the transaction, notify the third party that he rejects the transaction (Section 2 (2) HVertrG). In the absence of a different commercial practice, the commercial agent may not accept any reward from the third party without the consent of the entrepreneur (Section 7 (1) HVertrG). An agreement by which the commercial agent is restricted in his employment for the time after the termination of the contractual relationship is ineffective according to § 25 HVertrG. He needs a trade license , but it is a free trade , which means that no qualification is required. The distinction to the employed commission representative lies in the terminology of the workforce (risk of success, being bound by instructions, possibility of representation, rules of conduct, own resources or those of the employer). However, if there is activity for only one entrepreneur, full-time employment, bound by instructions, reporting obligations and minimum turnover requirements, the agent is classified as an employee-like person (§ 51 Paragraph 3 ASGG ), he is also considered a self-employed person , but it has certain consequences of liability, the commission - and compensation claims and social law.

The Austrian Chamber of Commerce has drawn up a code of ethics for commercial agents.

In Europe, commercial agency law is generally regulated nationally. In the area of commercial agents, the European legislator is striving for partial harmonization through the Commercial Agents Directive 86/653 / EEC. This then had to be transposed into national law by the national legislators of the EU member states , within the scope of the interpretation options. The national authority is free to further develop its own commercial agency law in addition to the mandatory introduction for goods commercial agents and to extend it to other areas. As a result, the legal situation of the national legal norms is similar, but not identical. So it is necessary - especially in the transnational movement of goods - to become familiar with the individual national standards on commercial agency law. The Commercial Agents Directive stipulates that the commercial agent must defend the interests of the entrepreneur in the exercise of his activity and behave in good faith .

literature

Marius Mann, Distribution Law in Trade and Industry , CH Beck, Munich 2017

Thume / Küstner: Handbook of the entire distribution law. 3 volumes; Volume 1: Commercial Agents. 4th edition Frankfurt 2012.

Hans-Otto Schenk, Rolf Spannagel, Andrea Wölk: Functions and services of the commercial agency in the competition of sales systems. ed. from the Research Association for the Commercial Agent and Brokerage, Cologne 1974.

Hans-Otto Schenk: The commercial agency as an autonomous sales system. ed. from the Research Association for the Commercial Agent and Brokerage Profession , Cologne 1983, ISBN 3-89095-000-0 .

Herbert Röhrig : From the work and work of the commercial agent , Hamburg: Hanseat. Verl. Ant., 1938

Herbert Röhrig: We are sales representatives and the companies represented. A commercial and human consideration. Edited by the research association for the commercial agent trade brokerage, Braunschweig: Limbach, 1957