Federal Court of Justice: Key Criteria for Determining the Proportion of Regular Customers at Service Stations
In connection with the sale or lease of service stations, the need often arises in practice to determine the proportion of so-called regular customers. The precise quantification of this customer group is of considerable relevance, for example, when assessing compensation claims under Section 89b of the German Commercial Code (HGB) or when calculating business values. In its judgment of September 12, 2007 – VIII ZR 194/06 – the Federal Court of Justice (BGH) made fundamental statements regarding the methodology for determining the regular customer proportion of a service station and clarified the requirements for establishing facts and presenting evidence in this context.
Background: The Economic Significance of the Regular Customer Proportion
In the operation of service stations such as gas stations, differing economic interests regularly compete: On one hand, oil companies and operators benefit from ongoing business with an established group of regular customers; on the other hand, distribution relationships may end, resulting in compensation interests that must be evaluated under distribution law. A recurring point of contention is the question of the proportion of regular customers as compared to walk-in customers. The size of the regular customer base is a key criterion for assessing the economic advantage that remains with the company when a service station operator changes.
Requirements and Reference Points in Case Law
Definition of Regular Customer
According to the case law of the BGH, the concept of a regular customer requires that the customer has a regular and predominant connection to the specific service station and its operator. What is decisive is not any general affiliation with a brand or supplying company, but the actual preference for the specific place of business. Mere incidental or unavoidable use of the services—for example, due to the location on a heavily frequented route—is not sufficient.
Determination Methodology and Assessment of Evidence
The BGH emphasizes that the proportion of regular customers generally requires findings of fact by the trial judge. A plausible, comprehensible, and objectively verifiable estimate is sufficient. It is permissible for the court to rely on industry experience values. However, these general assumptions may not be applied mechanically. Instead, the circumstances that characterize the individual case—such as location factors, the regional competitive environment, product and service offerings, and marketing strategy—must be comprehensively considered. The BGH makes it clear that it is the responsibility of the trial judge to assess the weight and probative value of indicators in light of the overall circumstances of the business on an individual basis.
Practically Relevant Aspects of Customer Classification
Typical Indicators of a Regular Customer Relationship
In practice, various factors may indicate a regular customer relationship. These include, in particular, the recurring appearance of certain customers, the regularity of their visits over time, individual customer communication, and the use of additional offers such as bonus and discount programs. However, these indications must not be considered in isolation, but always assessed in the overall context.
Challenges in Presenting Evidence
A central problem is that service stations are typically geared toward anonymous and short-term transactions, making the identification of regular customers difficult. Accurate identification is often only possible to a limited extent. The BGH addresses this issue by emphasizing that estimates remain permissible when and to the extent they are conscientiously and consistently developed from available reference points. Simply applying general industry estimates, without taking into account, for example, special customer loyalty tools or location-specific particularities, does not meet the requirements for a proper assessment of the facts.
Specific Industry Characteristics
Service stations are characterized by high turnover and a large number of occasional customers. In contrast, genuinely bound regular customers—such as commercial clients, holders of company fuel cards, or local residents with regular needs—play a secondary role. The BGH acknowledges that in practice, the regular customer proportion at service stations is generally low, though this should not preclude a thorough assessment in each individual case.
Conclusion and Significance of the Decision
The BGH judgment of September 12, 2007 provides an important framework for the correct and fair determination of the regular customer proportion in the service station business. The decision creates legal certainty for contract and claim structuring when ending distribution relationships and at the same time allows for a presentation of facts that is oriented to the actual circumstances and individual situations. Companies, investors, and operators are now required, when assessing possible compensation claims, to carefully document and prepare the composition of their customer base with regard to the individual location.
A comprehensive assessment of all relevant indicators is therefore essential—especially in cases of existing or potential disputes. Based on the guidelines of the BGH, it is advisable, even in cases of doubt, to undertake a thorough analysis and evaluation of the respective customer structure in order to ensure the appropriate consideration of legitimate economic interests.
For further questions or concerns regarding the determination of regular customer proportions and other distribution law issues, the lawyers at MTR Legal Rechtsanwälte, a nationally and internationally active commercial law firm, are happy to assist you.
