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- Title
Einmalprovisionen lassen Handelsvertreterausgleichsanspruch unberührt.
- Authors
Emde, Raimond
- Abstract
The European Court of Justice (ECJ) has ruled that one-time commissions do not lead to commissions being excluded from the calculation of compensation under Article 17(2) of Directive 86/653/EEC. The compensation claim of a commercial agent also includes commissions that they would have lost if the commercial agency agreement had continued and the principal had concluded business with new customers or expanded business relationships after the termination of the contract. The ruling was made in the context of a legal dispute between a commercial agent and O2 Czech Republic a.s. There is a discussion about whether commissions from hypothetical future transactions between the principal and the customer base built up by the agent should be taken into account. It is suggested that commissions for hypothetical future transactions should be included in the term "lost commissions". It is also discussed whether one-time commission payments can be considered as lost commissions. The calculation of compensation for commercial agents is based on estimates and takes into account the value of the customer base and the likelihood of a new contract being concluded. It is emphasized that the agreement of one-time commissions does not exclude the right to compensation and that all circumstances of the individual case should be taken into account. The article also addresses the question of advance fulfillment of compensation claims for independent commercial agents and emphasizes that the right to compensation exists independently of the principal's commission system. It is noted that one-time commissions often stand in an equivalence relationship to the intermediary service and do not compensate for the transferred customer base. It is also discussed whether a reduction of the compensation claim is possible from a fairness perspective if the one-time commission includes an advance payment for lost commissions. The author of the article, Raimond Emde, is a partner at the law firm GvW Graf von Westphalen.
- Subjects
COMMERCIAL agents; DISCHARGE of contracts; TELEFONICA Czech Republic AS; CONSUMERS; LAW firms; FAIRNESS
- Publication
Internationales Handelsrecht, 2023, Vol 23, Issue 5, p207
- ISSN
1617-5395
- Publication type
Article
- DOI
10.9785/ihr-2023-230506