HGB Commercial Agent Termination Without Notice
November 9, 2009 | 35,00 EUR | answered by Andreas Scholz
Dear Sir or Madam,
The following matter:
From May 2006 to April 2008, I sourced goods for my customers from a wholesaler. After accumulating too many liabilities with this wholesaler, they offered me the opportunity to work as a commercial agent under § 84 of the German Commercial Code (HGB) on their behalf. The commissions earned from this were offset against my liabilities on a monthly basis. I accepted this offer.
In May 2008, I relocated from Münster to southern Germany. The wholesaler was aware of this. From May 2008 to June 2009, the commissions were offset against the liabilities. The commissions for July and August 2009 were paid to me as the liabilities had been paid off since June 2009.
On October 15th (dated September 30, 2009), I received a termination of the verbal commercial agent contract for alleged detrimental behavior via registered mail. There was no prior warning regarding neglecting customer service.
I suspect the termination was only done to prevent me from receiving compensation for the customers I had acquired.
I have formally objected to this termination in writing via registered mail and have accepted a proper termination for November 15, 2009. At the same time, I have demanded the outstanding commissions for September 2009 with a deadline of November 9, 2009.
Unfortunately, there has been no response so far.
What should I do now? Should I request a statement of account and then initiate legal proceedings? Should I file a lawsuit in the labor court? The commissions have been less than 100 euros net in the last few months, so as a sole agent, it falls under the jurisdiction of the labor court. What should I do?
I would greatly appreciate your help.
Best regards,
Dear questioner,
as a commercial agent, you are not subject to the Protection Against Dismissal Act, as the law does not apply to commercial agents according to § 84 HGB. The only exception is if the commercial agent is economically dependent and in need of social protection. This is especially the case if you have only worked as a representative for your principal and have had relatively low income. If you were indeed a sole agent and earned no more than 1,000 EUR per month, you can seek the assistance of the labor courts according to § 5 Abs.2 ArbGG. However, it is a prerequisite that you were "professionally" a sole agent. Based on your information, I assume that you carried out the commercial agent activity alongside your main commercial activity.
Regarding a termination without notice, your contracting party would need to provide evidence that there was a behavior on your part that would have justified a termination without notice. This applies regardless of whether labor law regulations apply in your case or not. Based on your information, I assume that you were a part-time commercial agent. In this case, the notice period according to § 92b HGB applies. The contractual relationship could therefore be terminated on a monthly basis. You have also insisted on such a termination.
Outstanding commissions can be pursued through judicial dunning proceedings or possibly even through legal action. Since you have already set a deadline for payment and this deadline has passed, you can now initiate the dunning or legal proceedings against your contracting party.
In conclusion, I assume that your primary concern is to receive the outstanding commissions. The lawsuit should be filed in the civil court or the dunning process should be initiated. Since you have accepted the termination for mid-November yourself, initiating a labor court proceeding, if even permissible in your case, is neither appropriate nor necessary.
I hope I have been able to help you further. If you have any questions, please feel free to ask.
Best regards,
Andreas Scholz, Attorney
