commission

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Commission (from Latin providere , “vorsorgen”, “to provide for”) is a performance -based remuneration for services and business errands in German-speaking countries .

Depending on the context and industry , other terms are used instead of the term “commission”, such as brokerage , cure , surcharge , premium or packing . If the commission is not disclosed to the person who ultimately has to raise it, it is referred to as a hidden commission , a kick-back or, especially in Switzerland, a retrocession .

General

The term commission appeared in Wolfgang Schweicker as early as 1549: “the factor prouision zalt”. The “factor” (commission agent, representative) was therefore already entitled to a commission in the Middle Ages . Schweicker introduced the Italian Doppik in Germany with his book .

The current concept of commission comes from German commercial law and was mentioned here in the ADHGB from May 1861. In Art. 290 Paragraph 1 ADHGB (today § 354 HGB) the commission for services and business errands was provided. In 1864, Adolf Mensching commented on the concept of commission in its current form. The remuneration for the activity of the commission agent "is called commission and is generally calculated according to percent". However, the commission claim did not already arise for the conclusion, but only when the transaction was carried out, so that only the successful activity triggered a commission claim.

Commercial law

Today's Commercial Code (HGB) adopted the term commission for various commercial brokerage activities. The general commercial entitlement to commission for business errands and services is regulated in Section 354 (1) of the German Commercial Code. According to this, the merchant is entitled to a commission for his activity, the term commission is to be understood here more comprehensively. Moreover, in particular having sales representative ( § 87 , Section 1 HGB.), Commercial broker (here, it is called "brokerage"; § 99 HGB), commission ( § 396 . Section 1 HGB) and forwarders ( § 407 , paragraph 2 HGB.) Entitled on commission. The insurance or building society representatives are commercial agents ( Section 92 (1) HGB), for their commissions, Section 92 (4) HGB therefore refers to Section 87a (1) HGB, which regulates the commercial agent's claim to commission.

According to Section 87 (1) HGB, the commercial agent is entitled to commission for all transactions concluded during the contractual relationship that can be attributed to his activity. It is a performance fee. Section 87a (1) of the German Commercial Code stipulates that the commercial agent's claim to commission arises when the transaction is carried out. This entitlement also exists if it is certain that the entrepreneur does not carry out the transaction in whole or in part or does not carry out the transaction as it was concluded (Section 87a (3) HGB).

species

Commissions occur in various businesses in everyday life; they are widespread among service companies such as credit institutions and insurance companies . The number of types of commission is correspondingly high. In addition to the ones already mentioned, there are also collection , del credere or loan agency commission . Del credere commission is a commission due to the commercial agent for the del credere risk assumed by him ( § 86b Abs. 1 HGB), the credit brokerage commission is, like the broker's wages, a sub-case of § 652 BGB and related to the commercial brokerage activity. All types of commission are performance-dependent, because performance-independent ones are not compatible with the basic idea of ​​§ 652 ff. BGB.

Bank commissions

In the lending business is commitment fee , credit commissions and overdraft commission usual; otherwise, commissions in the credit area are mainly incurred for loan loans, i.e. if there is no underlying money loan . These include surety credits for which surety , guarantee or letter of credit commissions (opening, notification, confirmation and document acceptance commission) are charged. Credit institutions also charge a commission for their intermediation in the securities business . These transaction costs arise in particular when buying and selling securities and are made up of the broker's commission charged by the stockbroker to the banks and their own - much higher - bank commission. In international credit transactions , the granting of syndicated loans is particularly commission-intensive, with the big banks in particular making use of the unbalanced fee structure of the euro market, since the lead managers receive a disproportionately higher share of the total commission income than the other syndicates ( management commission for performing the tasks of the syndicate leader) . This also applies to the issue of securities for non-banks .

Special case of internal commission

If credit institutions receive commissions from third parties (from issuers , initiators or debtors of the investment) for business deals as part of their investment advice or if they pay such commissions to intermediaries ( English packing ), these commissions can endanger the independence of the banks and trigger a conflict of interest if they Do not disclose received or paid commissions to the investor ( internal commissions ). For this reason, the case law of the BGH and the law require the transparency of hidden internal commissions.

The Supreme Court had in December 2006 in commission business , decided that consumers need to know which receive fees banks for financial intermediation. This is the only way for customers to assess how great their bank's self-interest is in a specific investment recommendation. He perfected his case law on bank commissions with a ruling from June 2014, according to which an advisory bank has to inform customers on the basis of investment advisory contracts about the receipt of hidden internal commissions from third parties regardless of their amount. According to section 70 of the WpHG (originally as section 31d of the WpHG since November 2007 ), investment services companies are required to accept donations from third parties in connection with the provision of investment services, including in particular investment advice ( section 2 (8) sentence 1 no. 10 WpHG) prohibited. Something different applies in particular only if the type and scope of the benefit is disclosed to the customer (section 70 (1) sentence 1 no. 2 WpHG). Since January 2013, financial intermediaries have only been allowed to accept donations from third parties in connection with the brokerage of - almost all - capital investments if they disclose these to their customers. Finally, since August 2014, an investment services company has been obliged under section 31 (4b) of the WpHG old version (since 2018 in section 64 of the WpHG) to inform the customer before the start of the advice and before the conclusion of the advisory contract whether the investment advice is fee-based investment advice is provided. The supervisory principle, according to which commission payments from third parties are generally prohibited and, if necessary, permitted if they are disclosed, must therefore be taken into account as an expression of a general legal principle when interpreting the (implied) contractual declarations.

Insurance commissions

In the insurance industry , numerous types of commission are used in a wide variety of weightings depending on the respective corporate objective. These include, in particular, one-time, first, follow-up, renewal or super commissions. Closing commission and follow-up commission are particularly important . The representative receives the former for the successful conclusion of an insurance contract , the latter for the ongoing support of the insured person and the portfolio management of the insurance contracts. High acquisition commissions are known above all in personal insurance , while a more balanced weighting between acquisition and follow-up commission can be found in property insurance branches. A super commission is understood to be the commission that is paid to a fake general agent for the business that the agents subordinate to him or her organizationally have arranged.

A full or partial payment of commission to the policyholder is not permitted. The prohibition of commission payments has been regulated by law since July 29, 2017 in Section 48b of the VAG .

Brokerage

The commission fee of a broker when buying or selling on the exchange -traded securities , foreign exchange or goods as well as in real estate trade and in various service sectors is called a commission (to French. Courtier [ kuʀtje ], "broker, agent") or treatment days. In the case of German stock exchange trading, it is 0.06% of the purchase and sale of shares and subscription rights, and 0.075% of the purchase or sale price for fixed-income securities . When trading stocks in Frankfurt, the values ​​are 0.04% for DAX stocks and 0.08% for all other stocks.

The permissible commission payment to a real estate agent for the mediation of a rented apartment is regulated in Germany by the Housing Agency Act (WoVermRG). According to this, the required commission may amount to a maximum of two months' rent without additional costs (plus sales tax of currently 19%) ( § 3 sentence 2 WoVermRG). A broker may only demand the commission if this was previously agreed (a note from the broker, which was not contradicted, is sufficient) and if the broker was actively involved in the brokerage. A broker may not demand a commission if he himself is a co-owner of the brokered property, if he is economically closely linked to the property management or similar or if a social housing is brokered. Since June 2015, the tenant no longer pays the broker's commission, but this is paid by the client ( ordering principle (real estate industry) ). In the vast majority of cases, this is the responsibility of the landlord.

The new regulation only applies to renting out rental apartments. There is no fixed fee schedule for the sale of a property , so the commission is a matter of negotiation and varies from state to state. For example, the commission in Baden-Württemberg is around 7.14%, while in Hesse it is 5.95%. In addition, it is different who has to pay the brokerage fee. The broker has three options for offering his commission:

  • Internal commission (only the seller pays): is determined by the seller and broker and cannot be viewed by the buyer.
  • External commission (only the buyer pays): is shown and therefore visible to the buyer.
  • Mixed form (buyers and sellers pay): is the most common form of commission. Usually the fee is shared.

Calculation and due date

According to Article 6, Paragraph 2 of the EC Directive, commission is any part of the remuneration that fluctuates according to the number or value of the transactions. According to EU law, the commission is therefore an amount or quantity-dependent variable. The basis for calculating commissions is generally the value (amount) of a transaction subject to commission. In order to limit the amount dependency, the commission is given in percent or per mille of the amount. In accordance with Section 87b (2) of the German Commercial Code (HGB), the basis for calculation is the gross amount of the total benefit, discounts and additional costs may not be deducted. The broker can according to § 652 para. 1 BGB a commission request as soon as mediated by him contract. This performance-based regulation is structurally contained in all provisions. In the case of commission agents, the commission according to § 396 Paragraph 1 HGB is due upon execution; this also applies to the commercial agent according to § 87a Paragraph 1 HGB. According to Section 87a, Paragraph 4 of the German Commercial Code, the commission is due on the last day of the first month after the accounting period.

Demarcation

A distinction must be made between commission, royalty , bonus and fee . Like the bonus, the commission is a participation in the concluded transactions. The success of the worker's activity is the factor underlying the calculation of the commission. In contrast to the commission, the bonus is a profit sharing and is paid regardless of the employer's profit or loss . In the Umsatztantieme the prevailing opinion sees an intermediate form between bonus and commission, the opinion of the Federal Labor Court belongs commission character. A bonus in the narrower sense is the performance wage in the form of piecework or performance wages, in the broader sense this includes attendance and loyalty bonuses. Fees are paid regardless of the amount and are staggered according to the amount.

Taxation and accounting

Commission payments are generally sales taxable ( § 1 UStG ). According to § 4 No. 8 UStG, most banking transactions , including the commissions charged for them , are exempt from sales tax, as are insurance services (No. 10) and the sales of building society representatives, insurance agents and insurance brokers (No. 11). Since these banking and insurance transactions are exempt from VAT, this also applies to the commissions associated with them. However, commissions are included in income for tax purposes and are therefore subject to taxable income from commercial operations or self-employed work . If the transaction takes place between the seller and the intermediary, and the intermediary then invoices the buyer on his own account, purchase discounts, even if these are referred to as commissions, are not separately taxable sales: The principle of differential taxation determines sales tax and income tax components from Business transaction as a whole.

When accounting for non-banks , the commission income in the profit and loss account belongs to “other interest and similar income” in accordance with Section 275 (2) No. 11 HGB, and to “commission income” for credit institutions according to Section 30 RechKredV . This includes "Commissions and similar income from service transactions such as payment transactions , foreign trade , securities commission and custody business , income from fiduciary and administrative loans, commissions in connection with financial services and the sale of foreign exchange , types and precious metals and from brokerage in credit , Savings, building society and insurance contracts ”. Income also includes bonuses from the placement of securities, guarantee commissions and account management fees .

Commission in Anglo-Saxon and French-speaking countries

In the Anglo-Saxon and French-speaking areas, the Latin translation in the form of "provision" is in the foreground, because under "provision" pɾ̺ovˈiʃən ] or [French. provisjˈõ ] one understands here in the context of accounting the provisions . IAS 37 specifies the accounting treatment of “provisions, contingent liabilities and contingent assets” (provisions, contingent liabilities and claims). “Commissions” are liabilities of uncertain maturity or amount.

In these language areas, the word “commission” takes over the content of the German “provision”.

Commission in canon law

According to canon lawyer Johann August von Grolman , under canon law provision is understood to be “acts whereby a benefice (a church office ) is canonically assigned to someone ”. While the ordinary commission is made by choice , the Pope appoints someone for an office of the church in the case of the extraordinary commission . The competent ecclesiastical authority “provided” a person with a certain office. The term was later expanded to include the provision or maintenance of a person, often in the form of a regular payment such as an annuity . In this sense, “supply” is synonymous with commission.

literature

Individual evidence

  1. ↑ Wolfgang Schweicker: Dual bookkeeping together with his Giornal. Nuremberg, 1549.
  2. ^ Alfred Schirmer: Dictionary of German business language - on historical bases , 1991, p. 151 ( books.google.de ).
  3. ^ Adolf Mensching: The German commercial law for practical use. Part 1, 1864, p. 105 ( books.google.de ).
  4. ^ Wolfgang Hefermehl In: Franz Schlegelberger : Großkommentar HGB. 1964, no. 31 on § 354.
  5. ^ Mario Zinnert: The insurance agent. 2009, p. 183 ff. ( Books.google.de ).
  6. ^ Andreas HJ Huth: Industriefinanzierung in Deutschland und Frankreich , 1996, p. 136 ( books.google.de ).
  7. ^ Michael Cramer: The international credit business of the banks , 1981, p. 58 ( books.google.de ).
  8. ^ BGH, judgment of December 19, 2006, Az .: XI ZR 56/05
  9. ↑ BGH, judgment of June 3, 2014, Az .: XI ZR 147/12
  10. ↑ Dieter Farny (ed.): Concise dictionary of insurance. 1988, p. 1163 ( books.google.de ).
  11. ↑ Summary of the permitted brokerage fee for housing
  12. ↑ Magazin.Wohnen: Reform of the broker commission
  13. ↑ brokerage fee. Retrieved September 28, 2017 .
  14. ↑ Directive 86/653 / EEC of December 18, 1986, ABl. EG L 382/17.
  15. ^ BAG, judgment of January 12, 1973, Az .: 3 AZR 211/72
  16. ↑ Daniela Rindone: Labor Law Special Payments , 2011, p. 126 ( books.google.de ).
  17. ↑ Alina Schulte im Hoff: Provisions according to HGB and IFRS in comparison , 2014, p. 56 ( books.google.de ).
  18. ^ Dieter Christian, Norbert Lüdenbach: IFRS Essentials. 2013, p. 23 ( books.google.de ).
  19. ^ Johann August von Grolman: Principles of general Catholic and Protestant canon law , 1843, p. 204 ( books.google.de ).