Decision of the OLG Cologne – Ref. 19 U 71/24
The OLG Cologne has significantly strengthened the rights of commercial agents against companies. In a ruling dated September 23, 2024, the OLG Cologne made it clear that a commercial agent does not have to repay received subsidies after a termination without notice (Ref. 19 U 71/24). The corresponding contract clause represents an unreasonable disadvantage to the commercial agent.
When the collaboration between commercial agents and contracting companies ends, there can be legal disputes over outstanding payments. It is therefore all the more important to regulate the mutual rights and obligations in the commercial agency contract in detail. In drafting contracts, it is important to ensure that they follow the principles of good faith and do not unreasonably disadvantage either partner. Otherwise, the corresponding clauses may be invalid, according to the law firm MTR Legal Rechtsanwälte, which advises on commercial law, among other things.
Cost subsidy must be repaid upon termination without notice
This is also shown by the decision of the OLG Cologne. In the case in question, a commercial agent had concluded an agency contract with an insurance company, which provided for the payment of cost subsidies, among other things. The subsidies granted to the commercial agent amounted to around 44,000 euros in total and, according to a clause in the contract, were to be repaid if the agency contract was terminated without notice for a good cause. The repayment was to occur regardless of which contracting party terminates the contract.
The contract was eventually terminated without notice by the commercial agent. Subsequently, the company demanded the repayment of the cost subsidies, citing the relevant contractual clause.
OLG Cologne dismisses lawsuit for repayment
The Regional Court Cologne dismissed the lawsuit for repayment, and the OLG Cologne confirmed this decision on appeal. The OLG found that the repayment clause in the agency contract constitutes an unreasonable disadvantage to the commercial agent and is therefore invalid according to § 307 paragraph 1 BGB.
The clause stipulated that the obligation to repay exists independently of which party terminates the contract. This places an unreasonable disadvantage on the commercial agent because they are required to repay even if the termination of the contract is caused by the company’s wrongful conduct and the agent therefore terminates. This contradicts the principles of good faith, according to the OLG Cologne.
Impermissible interference
The court further stated that a repayment risk, even in the case of justified termination without notice, effectively exerts pressure on the agent to refrain from exercising their right to terminate. This constitutes an impermissible interference with a legally guaranteed right of design. The company has no claim to the repayment of the cost subsidies, according to the OLG.
With this decision, the OLG Cologne has also strengthened the right of the commercial agent to extraordinary termination of the contract pursuant to § 89a HGB. It made clear that this right must not be undermined by financial sanctions.
Review contract clauses
In contract drafting, especially on the part of companies, care should therefore be taken to ensure that repayment clauses are designed differently and distinguish based on which contracting party terminates the contract. As the decision from the OLG Cologne shows, a blanket demand for repayment upon termination “for a significant reason” is invalid if it burdens the representative even in the case of justified termination.
Companies using similar clauses must now urgently review and adjust them. Otherwise, they risk losing claims for repayment or provoking legal disputes. For commercial agents, the OLG decision is a signal that they need not be deterred by repayment clauses if they wish to terminate the contract for significant reasons.
The OLG Cologne’s decision also shows that it is important for the parties to deal fairly with each other when drafting contracts and to uphold the principles of good faith. Existing contracts should therefore be reviewed especially regarding subsidy agreements, and it should be ensured that the regulations are legally secure.
MTR Rechtsanwälte advises on commercial agency law and other topics of commercial law.
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