The parties are entitled to compensation if German law applies. When this claim exists and when it can be contractually excluded depends on a number of factors.
Case law bases the right to compensation on an analogy to Section 89b para. 2 HGB, which applies to commercial agents. In response to the question of when integration into the manufacturer's sales organization exists, case law has developed a colorful bouquet of indicators:
- Granting of an exclusive distribution right,
- non-competition clause of the authorized dealer,
- Allocation of a specific market responsibility area,
- obligation to promote sales,
- targeted sales promotion in accordance with the entrepreneur's guidelines,
- Provision of demonstration products,
- training of sales personnel,
- Minimum purchase quantities of the authorized dealer,
- Obligation to maintain a stock of goods and spare parts,
- Obligation to provide customer service,
- Obligation of the authorized dealer to participate in trade fairs,
- carrying out advertising,
- Reporting and notification obligations of the authorized dealer,
- Control and monitoring powers of the entrepreneur,
- Right of access to the business premises,
- authority of the contractor to issue instructions,
- Specification of terms of payment and delivery,
- specification of the furnishing of the business premises and warehousing.
The more of the aforementioned criteria are present, the more likely it is to assume integration into the manufacturer's sales organization.
Prerequisites for contractual exclusion
A further prerequisite is that the authorized dealer is at least de facto obliged to hand over the customer data to the manufacturer. Only then is it possible for the manufacturer to continue to benefit from the sales activities of its authorized dealer in the future.
With regard to the possibility of overriding (waiving) the compensation claim, the following applies:
If the authorized dealer's market responsibility area is in Germany and the manufacturing company is also a German company, the authorized dealer's claim for compensation cannot be excluded in advance already analogous to Section 89b para. 4 HGB.
However, if the authorized dealer's market responsibility is located outside Germany, the legal situation changes, even if the application of German law has been agreed. If the authorized dealer distributes the products outside the European Union (EU) and the European Economic Area (EEA) , this already results from the provision of Section 92c HGB applicable to commercial agents.
According to a disputed, but probably prevailing opinion, the authorized dealer's claim for compensation can also be effectively excluded if the market responsibility area is within the European Union but outside the Federal Republic of Germany. This applies even if the law of the member state provides for a compensation claim for authorized dealers. Unlike for commercial agents - for whom European law provides for a mandatory right to compensation in Art. 17 and 18 of the Commercial Agents Directive - there are no corresponding provisions for authorized dealers. This is also the view of the European Court of Justice (Ingmar/Eaton decision). The Munich Higher Regional Court continues to take the view that the exclusion of the right to compensation can also be made in a form.
It should be noted, however, that in some states, mandatory equitable compensation is provided for under public law protection regulations. This applies, for example, to Belgium - a contractual exclusion of the claim to a compensation payment to the authorized dealer is not possible here.