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Commercial agent’s right to claim compensation in the case of past clients

August 2018

The commercial agent’s right to claim compensation in the event of turnover increases with past clients comes up time and time again as a contentious issue. A ruling of the Oberlandesgericht (OLG) Celle, the Higher Regional Court of Celle, has now bolstered the position of commercial agents (Az.: 11 U 88/16).

Following termination of the commercial agency agreement, the commercial agent is often entitled to claim compensation. This right normally exists if the commercial agent has established new business contacts for the company and the latter continues to benefit from these contacts. The matter frequently becomes a contentious issue in cases where the commercial agent further develops business contacts with existing clients and increases turnover. Until now, the case law has started from the premise that the commercial agent only becomes entitled to claim compensation if he or she has increased their old client’s turnover by 100 per cent. We at the commercial law firm GRP Rainer Rechtsanwälte note, however, that a ruling of the Oberlandesgericht Celle from February 16, 2017 has bolstered the position of commercial agents.

According to the OLG Celle’s judgment, the commercial agent might already be entitled to claim compensation if he or she has increased past clients’ turnover by more than 50 per cent.

In the case in question, the commercial agent had marketed certain products to pharmacies and cosmetic institutes. When the commercial agency agreement was terminated, he asserted a claim for compensation for turnover increases with three past clients, each of whose turnover he had increased by between 58 and 76 per cent. In the view of the OLG, there can be said to have been a substantial expansion of business relations if an increase in turnover of over 50 per cent has been achieved. Thus, the commercial agent was entitled to claim compensation in these three cases. The Court held that national case law, which requires turnover to have been doubled in order to give rise to a claim for compensation, is not consistent with the Directive on Commercial Agents (Council Directive 86/653/EEC of 18 December 1986).

The position of commercial agents has been strengthened by the OLG Celle’s ruling. Notwithstanding this, the issue of whether an increase in turnover of more than 50 per cent is sufficient as a general matter of principle for the purposes of claiming compensation will need to be clarified by further case law.

Lawyers who are experienced in the field of commercial law can advise companies and commercial agents on matters ranging from the drafting and eventual termination of the agreement to claiming compensation.

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