When a commercial agent contract is terminated, the commercial agent usually has a claim for compensation. Certain conditions must be met for this claim.
According to § 89b of the German Commercial Code (HGB), the commercial agent can demand reasonable compensation after the end of the contractual relationship. The requirement is that the company continues to have significant advantages from business relationships with new clients acquired by the commercial agent, explains the law firm MTR Legal. Additionally, the contractual relationship must have been terminated by the company.
Whether and to what extent the claim for compensation exists is often a point of contention between the parties after the termination of the contractual relationship. The basis for a claim for compensation is only the business relationships with clients that the commercial agent has newly established or business relationships with existing clients that the commercial agent has significantly expanded.
The European Court of Justice has ruled that the concept of a new client should not be construed too narrowly. An already existing customer can also become a new client if the commercial agent has expanded the already existing business relationships to include additional products and services of the company (Case No.: C-315/14).
The company already gains an advantage if there is an opportunity to continue to maintain these business relationships and benefit from them. Whether these advantages are actually realized is not decisive. What is important is that at the termination of the contract a positive prognosis for the continuation of the business contacts was present.
The claim for compensation generally does not exist if the commercial agent himself resigns or if the company was entitled to terminate the contract without notice.
Another point of contention is the amount of the claim. The legislator has only set a maximum limit here. According to § 89b HGB, the claim for compensation is at most an annual commission or other annual remuneration calculated on the average of the last five years of the commercial agent’s activity. For a shorter contractual relationship, the average during the duration of the activity is to be considered.
However, the maximum limit does not specify how the claim for compensation is to be calculated. In practice, commissions from transactions with new clients or the expansion of business relationships during the last 12 months of activity are often used as a basis and then projected over a period of three to five years.
Some uncertainties need to be considered. Lawyers experienced in commercial agent law can provide advice.
