Distribution Law: Compensation Claims of Commercial Agents for Different Activities

In the event of a termination, compensation claims of authorised dealers play a decisive role. Knowledge of the current legal basis is therefore indispensable.
The number of terminations of dealer agreements by car manufacturers and importers has risen considerably this year. Given the situation, it is important to remember that there has been a change in the statutory basis for compensation claims (Section 89b of the German Commercial Code (Handelsgesetzbuch – “HGB”)). The initial so-called forecast calculation is primarily based on the entrepreneurial benefits, which the manufacturer or importer may be required to disclose. Since the entrepreneurial benefits are usually significantly higher than the returns realised by the dealer, there is a strong argument in favour of the so-called cap (Kappungsgrenze) as the decisive factor for the calculation in the future. The cap is calculated on the basis of the dealer’s average earnings over the past five years, the precise calculation of which is strongly recommended. However, there is another important aspect: A dealer usually acts as a broker on behalf of the banks that finance or lease the customer vehicles, and will receive a commission for his or her services.

Although these sales activities for the bank will often end automatically upon the termination of the agency agreement, it will also give rise to compensation claims. These claims are based on the grounds that the dealer acts as commercial agent, because he or she is paid a commission. Given the penetration rates in the financing and leasing context, the resultant compensation claims are not inconsiderable. According to the German Working Group for Banks and Leasing Companies within the Automotive Industry (Arbeitskreis der Autobanken), approximately 1.34 million leasing and financing agreements were concluded in Germany in 2014. Furthermore, it must be noted that any compensation claim must be brought within one year of the termination of the agreement in question, otherwise the claim is irrecoverable.