Update Commercial 2026: Authorised dealer contracts

Supplier as a “quasi-manufacturer” in terms of product liability

The Court of Justice of the European Union ruled that the supplier of a defective product is liable as a “person who presents him- or herself as a producer” within the meaning of article 3(1) of Directive 85/374/EEC if the trademark affixed by the producer corresponds to the name or a distinguishing mark of the supplier (ECJ, judgment of 19 December 2024, C-157/23).

Driven by consumer protection: the Court of Justice’s decision

In the case at hand, damage occurred in relation to a vehicle manufactured by Ford Werke Deutschland as a result of an airbag defect. The vehicle had been sold by an Italian authorised dealer, which was supplied by the Italian distribution company “Ford Italia”. The name or sign “Ford” was affixed to the vehicle. The Court of Justice of the European Union held that the distribution company Ford Italia had to be treated as a “quasi-producer” and was liable for the damage.

The Court first notes that the Product Liability Directive aims to achieve full harmonisation. The persons against whom the consumer may bring a claim follow from articles 1 and 3 of Directive 85/374. In addition to the actual producer, this also covers any person who presents him- or herself as producer by affixing his or her name or another distinguishing feature to the product. No involvement in the manufacturing process is required for this. Nor is it necessary for the name or other distinguishing feature to be physically affixed to the product by the supplier since, in the Court’s view, what is decisive is the external perception. Where the supplier’s company name corresponds to the producer’s name, the supplier presents him- or herself to consumers as the person responsible for the quality of the product. This gives rise, on the part of the consumer, to a comparable level of trust to that which would exist if the consumer had acquired the product directly from the producer. This broad interpretation is also consistent with the objective of the directive, which is to relieve consumers of the burden of identifying the actual producer of the defective product.

Practical takeaway

Suppliers and traders who use producers’ names or the signs of the products they distribute in their company name or external branding are, in light of the Court’s ruling, moving more clearly into focus as potential targets of product liability claims. Where a distribution company or trader includes an identical element of the producer’s name in its company name, it already runs the risk, on that basis alone, of being held liable under product liability law as a “quasi-producer”. Against this background, developments in national case law on product liability will need to be monitored closely.

Abstract recommendation rate as permissible condition for dealer bonuses

In 2025, the legally compliant design of bonus schemes in various distribution systems continued to be a perennial topic in our consulting practice. The effectiveness of bonus schemes and individual bonus provisions is regularly subjected to judicial review. In a yet unpublished (and as of now not final) judgment of Munich I Regional Court dated 23 December 2025 (8 HK O 1540/24), it was recently clarified that, as a rule, a business is free in how it structures its bonus scheme. This decision is in line with existing case law of the higher regional courts and the Federal Court of Justice. For example, Frankfurt am Main Higher Regional Court (judgment of 18 June 2024, 11 U  16/23 (Kart)) (in German) held that the granting of a quality bonus in sales and after-sales service may be linked to achieving a certain recommendation rate, which is determined only in the ab­stract and not on the basis of specific questions put to the customer. This judgment of Frankfurt Higher Regional Court is outlined below.

Requirements for granting bonuses

The panel first notes that the quality bonus constitutes a voluntary benefit granted by the manufacturer in addition to the contractually owed remuneration. The manufacturer is therefore, in principle, free in how he or she structures such a bonus. The limit is reached where the dealer is subjected to unreasonable discrimination; the dealer may not be assessed against improper or arbitrary criteria. In this context, the Higher Regional Court states that the Net Promoter Score (“NPS”) at issue in the proceedings, that is, the likelihood of recommendation in an online survey among customers, can be used as an appropriate and competition-related indicator of customer satisfaction.

Even though, in the case in dispute, the granting of the quality bonus was additionally made conditional on data quality as a further requirement, this did not give rise to any concerns in the opinion of the panel. Minimum requirements for data quality, such as customers’ consent to being contacted, valid email addresses/mobile numbers and minimum participation rates, are permissible in the context of an online survey, provided they do not exclude any dealers from the outset and ensure the comparability of the data collected.

Practical takeaway

For manufacturers, Frankfurt Higher Regional Court’s decision provides further guidance on how to structure their bonus schemes in a legally compliant manner. Dealers may be assessed on the basis of an abstract customer satisfaction survey, which may in turn rely solely on the likelihood of recommendation. In each individual case, however, the bonus scheme must be designed in such a way that arbitrary bonus decisions (and other infringements of the law) are precluded.

This article is part of the "Update Commercial 2026". All insights and the entire report as a PDF can be found here.