Compensation for commercial agents in the field of mobile communications

OLG Cologne, Judgment of March 31, 2025 – Az. 19 U 126/24

The compensation claim according to § 89b HGB is generally a central point of contention after the termination of a commercial agency contract – particularly in the distribution of mobile and landline contracts. The OLG Cologne clarified in its judgment of March 31, 2025 (Az. 19 U 126/24) the requirements under which commercial agents in telecommunications sales can claim compensation and what presentation is necessary for this.

The purpose of the compensation claim is to create a reasonable balance when the entrepreneur continues to benefit from the customer relationships built by the commercial agent after the contract ends, while the commercial agent loses his commission opportunities. At the same time, the claim is not a flat-rate “extra payment,” but is subject to specific conditions.

Legal framework: Requirements of § 89b HGB

Compensation under § 89b HGB is essentially considered if the following points are met:

• Ongoing advantages for the entrepreneur: The entrepreneur must draw significant economic advantages from the business relationship with customers acquired by the commercial agent after the contract ends (e.g., ongoing revenues from these customers).
• Loss of commission for the commercial agent: The commercial agent must lose commission opportunities due to the termination, which he would likely have achieved if the contract had continued (the agreed commission system is decisive).
• Equity: The payment must correspond to equity. Factors such as the duration and structure of the contractual relationship, type of customer loyalty, business development, and the circumstances of the contract termination are considered in the assessment.

Important additional point: According to § 89b paragraph 2 HGB, the amount of compensation is limited (so-called Maximum limit): He must not exceed an amount that corresponds to an annual commission calculated as the average of the last five years (or – for shorter contract durations – the corresponding time period).

The case: Partner shop in mobile telecommunications sales

In the decided case, the plaintiff operated a so-called “partner shop” of a telecommunications company and acted as a commercial agent mediating mobile phone contracts to end customers. Upon contract termination, she demanded compensation amounting to over 600,000 euros. She justified this by pointing out that she had acquired numerous customers who later extended contracts or concluded new ones. These follow-up transactions should be attributed to the customer base she had built.

The company opposed this, essentially arguing that there was a lack of a specific allocation of the alleged customers and reliable information about whether and to what extent (further) commissionable sales were generated in follow-up transactions at all.

Decision of OLG Cologne: Compensation yes – but only with substantiated presentation

The OLG Cologne basically granted the plaintiff compensation, but in terms of amount only of around 78,000 euros.

. According to the court’s statements, a compensation claim requires a concrete, comprehensible, and verifiable presentation, particularly regarding:

• which specific customers the commercial agent himself recruited (not merely referring to a “customer base”),
• which follow-up transactions are attributable to these customers,
• which economic benefits the entrepreneur is likely to derive from this after the contract ends,
• and most importantly: which commissions would have actually accrued to the commercial agent under the agreed commission rules if the contract had continued.

General assumptions, statistical estimates without solid reference points, or a general indication of typical renewal rates are not sufficient according to the decision if it is not clear how the specific compensation in the individual case can be derived from them.

Mobile-specific peculiarity: Not every contract extension counts

The Cologne Higher Regional Court also emphasized thatcontract extensions in the mobile sector do not automatically establish a continuing business relationship under § 89b of the German Commercial Code. Especially in standardized processes (e.g., automatic or routine extensions), it cannot be readily assumed that the extension is based on a sustainable customer relationship created by the commercial agent.

What is decisive is whether a economically relevant, lasting relationship exists that continues to provide the entrepreneur with benefits and would typically have led to commissionable transactions if the contractual relationship continued.

In addition, the court clarified:

• Revenue alone is not enough: The fact that the entrepreneur continues to generate revenue with former customers does not automatically justify compensation.
• The logic of commission is decisive: Compensation requires that the commercial agent is deprived of commission claims that would have been contractually provided for.
• No circumvention of contractual exclusions: Commissions that are contractually excluded (e.g., no commission for certain follow-up or existing customer transactions) cannot be economically replaced retroactively “through compensation.”

Practical tips for commercial agents in telecommunications sales

From the decision, the following points can be derived for practice in particular:

• Document customer assignment: Promotional activities, customer data, contract conclusions, possibly customer numbers, and commission schedules should be documented in a structured manner.
• Derive follow-up transactions reliably: It is helpful if follow-up conclusions/extensions can be specifically assigned to the originally solicited customer.
• Check commission system: For the calculation, it is crucial which commissions for new contracts, extensions, tariff changes, or additional products were actually agreed upon.
• Keep the upper limit in view:Even with high claimed benefits, the compensation is legally limited (annual commission average).

Conclusion: No flat compensation – detailed presentation is crucial

The decision of the Higher Regional Court of Cologne illustrates that the commercial agent’s compensation in mobile communications sales isnot an automatic consequenceof contract extensions or ongoing revenues. A claim requires aconcrete, comprehensible presentationof which customers were acquired, which benefits remain with the entrepreneur, and whichcommission opportunitiesare actually lost to the commercial agent according to the agreed remuneration system. Especially in standardized telecommunications processes, a particularly careful presentation of facts is required.

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