Why did the BGH have to decide at all? It has long been clear that an authorized dealer operating in Germany has a claim to compensation if, like a sales representative, he is integrated into the sales organization of the manufacturer or supplier and is obliged to transfer his customer base upon termination of the contract, i.e. to hand over the customer data in such a way that the The manufacturer or supplier is able to use them directly. The Federal Court of Justice has once again clarified this matter of course: According to Section 89b Paragraph 4 Sentence 1 HGB, the authorized dealer's claim for compensation may not be excluded in advance if the requirements for a corresponding application of Section 89b HGB to the contractual relationship of an authorized dealer are met. This is the established case law of the Federal Court of Justice (see BGH, judgment of February 6, 1985 - I ZR 175/82, NJW 1985, 3076, 3077, juris Rn. 21; judgment of December 12, 1985 - I ZR 62/83, NJW -RR 1986, 661; BGH, judgment of October 6, 1999 VIII - Ref: ZR 125/98, BGHZ 142, 358, 368.
It is also clear that a commercial agent's claim to compensation may be excluded if he operates outside the European Economic Area and German law applies, and this also applies to authorized dealers.
However, the BGH's decision concerned an authorized dealer who operates within the European Economic Area and was contractually excluded from the compensation claim. For a commercial agent operating in the European Economic Area, exclusion of the claim to compensation would be inadmissible. This is expressly regulated in Section 92c of the German Commercial Code (HGB). The issue in question was therefore whether this Section 92c of the German Commercial Code (HGB), which only allows the exclusion of the claim to compensation for commercial agents who operate outside the European Economic Area, can also be applied in a completely analogous manner to authorized dealer contracts. Put another way: Is Section 92c HGB also applicable to authorized dealers in the European Economic Area, so that their claim for compensation cannot be excluded?
A frequently held opinion in the literature is that this ban in Section 92c of the German Commercial Code (HGB) does not apply analogously to authorized dealers. This would mean that the claim to compensation for authorized dealers who operate within the European Economic Area can be excluded.
The Federal Court of Justice has now put a stop to this view: Under the three conditions mentioned above, the authorized dealer operating in the European Economic Area's claim to compensation cannot be excluded in advance.
What are the arguments of literary opinion? The deviation from the territorial differentiation regulated for commercial agents in Section 92c Paragraph 1 of the German Commercial Code (HGB) is primarily justified by the fact that, in contrast to the commercial agency law harmonized in accordance with Directive 86/653/EEC, authorized dealer law is not harmonized at European level. However, § 92c HGB is precisely the expression and consequence of this harmonization, so that it does not apply to authorized dealer relationships.
Other voices in the literature and also the Düsseldorf Higher Regional Court (judgment of February 28, 2007 - Ref: VI-U (Kart) 22/06) also apply the prohibition of Section 92c HGB to authorized dealers because the German provisions of the HGB must be applied accordingly for reasons of equal treatment of commercial agents and authorized dealers under equalization law.
The Federal Court of Justice now expressly agrees with this last opinion: There is already a lack of the will of the legislature to ensure that, when Section 92c Para dealers wanted to break through. The scope of Directive 86/653/EEC is limited to commercial agency relationships and this directive does not apply to authorized dealer relationships. However, it cannot be concluded from this that the German legislature, when amending Section 92c Paragraph 1 of the German Commercial Code (HGB) in 1989 and 1993, intended to limit itself to regulating commercial agency relationships specifically. With these changes, the case law of the Federal Court of Justice on the corresponding applicability of commercial agency law to authorized dealer relationships, based on the judgment of December 11, 1958 - II ZR 73/57 (BGHZ 29, 83), had existed for more than thirty years. It would therefore have been obvious and would have been expected that the authorized dealers would be expressly excluded from the territorial differentiation stipulated in Section 92c Paragraph 1 of the German Commercial Code (HGB) with regard to commercial agents if the German legislator had wanted to maintain the synchronization that existed up to that point in the legal assessment of the To break through the compensation claims of commercial agents and authorized dealers.
Another argument against such a restrictive intention on the part of the legislature is the fact that the new version of Section 92c of the German Commercial Code (HGB) in 1989 standardized it for goods and other commercial agents. It has therefore gone beyond the requirements of Directive 86/653/EEC, which in itself only applies to sales representative relationships. The German legislature therefore not only wanted to implement Directive 86/653/EEC word for word, but also wanted to ensure comprehensive protection with Section 92c of the German Commercial Code (HGB). A broad scope of application of Section 92 HGB is therefore more in line with the legislative intent than a narrow one.
Finally, according to the Federal Court of Justice, if German law applies to an authorized dealer contract, there is no discernible reason - without prejudice to the lack of harmonization of authorized dealer law at European level - for the authorized dealer to carry out his activities for the manufacturer or supplier in another Member State according to the contract of the European Union or in another contracting state to the Agreement on the European Economic Area, must be treated differently than the authorized dealer who must carry out his activity for the manufacturer or supplier in Germany according to the contract due to the indispensability of the future compensation claim.
The indispensability of the future compensation claim in accordance with Section 89b Paragraph 4 Sentence 1 HGB is intended to protect the authorized dealer from the risk of entering into agreements that disadvantage him due to his economic dependence on the manufacturer or supplier. This risk exists for the authorized dealer who, according to the contract, has to carry out his activity for the manufacturer or supplier in another member state of the European Union or in another contracting state to the Agreement on the European Economic Area, as well as for an authorized dealer who carries out his activity for the Manufacturer or supplier must exercise the contract in Germany (BGH, judgment of February 6, 1985 - I ZR 175/82; BGH, decision of November 17, 1999 - VIII ZR 315/98).
The BGH also does not accept the argument that it is precisely because of the lack of harmonization that the authorized dealers are in a better position because there is no claim corresponding to the German compensation claim in the EWIR state in which they operate. Firstly, this is precisely a reflection of the lack of harmonization of authorized dealer law in the EU. Secondly, the parties are free to choose an applicable law other than German law for their contractual relationship.
The BGH's clarification is unfortunate for manufacturers and suppliers if they want to apply German law and the requirements of Section 89b HGB are met. However, there are alternatives: The manufacturer or supplier can choose another legal system that does not provide for the authorized dealer's right to compensation. In addition, the manufacturer or supplier can ensure that the requirements of Section 89b of the German Commercial Code (HGB) are not met, for example because the authorized dealer is not integrated into the sales organization of the manufacturer or supplier like a sales representative, and in particular only has to fulfill minimal marketing or reporting obligations, or in that it is clearly stipulated in the contract that the authorized dealer is not obliged to transfer the customer base at the end of the contract at the latest. If the contract is “lived” without such an obligation, there will generally be no claim for compensation.