A commercial agent or authorized dealer has no claim to information about the company’s gross profit for calculating their compensation claim. The Federal Court of Justice (BGH) has decided this (Case No.: VII ZR 69/19).
The compensation claim is regularly a contentious issue between commercial agents or authorized dealers and companies. According to § 89b para. 1 HGB, the commercial agent can assert a claim for compensation for business connections he has newly created and from which the company continues to benefit after the termination of the commercial agency contract. This regulation can also be applied to authorized dealers if they have to transfer their customer base to the manufacturer, explains the law firm MTR Rechtsanwälte.
The value of the customer base for the manufacturer can generally be deduced from the purchasing discounts granted to the authorized dealer before the termination of the contractual relationship. In the case before the BGH, a car dealer, acting as an authorized dealer, believed that the advantage he created for the manufacturer exceeded the purchasing discounts. Therefore, he demanded information about the gross profit achieved with the vehicles by the manufacturer.
However, with a judgment dated September 24, 2020, the BGH put a stop to this. The gross profit is not a suitable basis for calculating the benefits for the manufacturer and thus also not for the compensation claim of the authorized dealer. Therefore, the dealer does not have a claim to information about the gross profit, according to the Karlsruhe judges.
The BGH further explained that the manufacturer’s advantage lies in the business connections created by the commercial agent or authorized dealer, which they can continue to utilize after the termination of the contract. It is thus a matter of evaluating the customer base created by the distribution partner. This is to be distinguished from the profit margin that the manufacturer can achieve overall for its products. Furthermore, there is no empirical rule that a customer base created by the authorized dealer could be associated with an objectively determinable percentage of the overall gross amount achieved, according to the BGH.
The calculation of the compensation claim will remain a frequent point of contention even after the BGH’s verdict. Experienced lawyers in commercial law and distribution law provide advice.
