A commercial agent or distributor is not entitled to information regarding the gross profit of the company for the calculation of his compensation claim. The Federal Court of Justice (BGH) has ruled this (Ref.: VII ZR 69/19).
The compensation claim is regularly a contentious issue between commercial agents or distributors and companies. According to § 89b para. 1 HGB, the commercial agent can claim compensation from the company for the business connections he has newly established and from which the company continues to benefit, after the termination of the agency contract. This regulation can also be applied to distributors if they must transfer their customer base to the manufacturer, explains the law firm MTR Rechtsanwälte.
The value of the customer base for the manufacturer can usually be reflected in the purchasing discounts granted to the distributor before the termination of the contractual relationship. In the case before the BGH, a car dealer, as a distributor, believed that the advantage he created for the manufacturer went beyond the purchasing discounts. Therefore, he demanded information about the gross profit achieved by the manufacturer with the vehicles.
However, the BGH threw a wrench in the distributor’s plans with the judgment of September 24, 2020. The gross profit is not a suitable basis for calculating the advantages for the manufacturer and thus not for the compensation claim of the distributor either. Therefore, the dealer does not have a right to information on the gross profit, according to the judges in Karlsruhe.
The BGH further stated that the manufacturer’s advantage lies in the business connections created by the commercial agent or distributor, which he can continue to use after the contract ends. It is, therefore, a matter of assessing the customer base created by the distribution partner. This is to be differentiated from the profit margin that the manufacturer can achieve for his products overall. Additionally, there is no empirical rule that an objectively determinable percentage fraction of the total gross amount achieved can be assigned to the customer base created by the distributor, according to the BGH.
The calculation of the compensation claim will remain a frequent point of contention even after the BGH’s judgment. Attorneys experienced in commercial and distribution law provide advice.
