Update Commercial 2026: Commercial agency agreements

Calculation of indemnity where only one-off commissions are paid

We would like to draw your attention to the new ruling by Dusseldorf Higher Regional Court on the calculation of a commercial agent’s indemnity where only one-off commissions are agreed (judgment of 18 September 2025, 16 U 173/24 and 16 U 141/24) (in German). The question whether a commercial agent is entitled to an indemnity under Section 89b of the German Commercial Code (Handelsgesetzbuch – HGB) and, if so, how that indemnity is to be calculated where, under the commission agreement, the commercial agent is only entitled to one-off commissions and therefore does not lose any commission income as a result of termination of the agreement, is a perennial issue in distribution law.

Basic principles of the calculation

The two decisions of Dusseldorf Higher Regional Court are characterised by the fact that genuine one-off commissions had been agreed between the parties, since any claim to commission on follow-up business procured by the commercial agent in question had been excluded. Consequently, the commercial agent did not lose any commissions on newly acquired or further cultivated existing customer relationships as a result of termination of the commercial agency agreement. This was because, even on the assumption that the agreement had continued, the agent would not have earned any commissions for arranging follow-up business with those customers. It was therefore not possible to calculate the indemnity using the conventional calculation method, which is based on the commercial agent’s loss of commission as a result of the termination of the contract. The Higher Regional Court nevertheless found that the principal continued to benefit commercially even after termination and therefore considered an indemnity to be justified in principle. In determining the amount, the court applied a minimum estimate, using as its basis a special bonus classified as a commercial benefit which had been paid to secure the commercial agent’s economic existence, and which the principal no longer had to pay after giving notice. The court also took into account the higher turnover generated by the principal in the final contract year from transactions with customers procured by the commercial agent. Given that this turnover exceeded the amount of the special bonus, the court regarded the lower special bonus as an appropriate reference point for the estimate.

Practical takeaway

These decisions show that an indemnity is not automatically excluded where only one-off commissions are paid. Where commercial benefits exist on the principal’s side, the courts will seek, if necessary, creative solutions for determining the indemnity in the individual case. It is therefore hardly possible to apply those decisions to other cases in a schematic manner.

Exclusion of the indemnity by a jurisdiction agreement

According to a guidance order issued by Berlin Higher Regional Court (guidance order of 1 July  2025, 2 U 37/22) (in German) a (practical) exclusion of the right to an indemnity under Section 89b of the German Commercial Code by means of a jurisdiction agreement is not invalid per se. The Court of Appeal does recognise German case law according to which a jurisdiction agreement is invalid if it effectively excludes the commercial agent’s indemnity or other provisions of commercial agency law regarded as mandatory, because it must be assumed that the court in the chosen forum will apply a law which does not recognise corresponding provisions and does not give effect to mandatory rules, in particular of Union law. In the case at hand, however, the Court of Appeal held that there were no compelling objections to a clause in the commercial agency agreement providing for an exclusively international place of jurisdiction in a third country, which has the effect that a commercial agent operating within the European Union is denied an indemnity, where the situation falls outside the scope of the Commercial Agents Directive 86/653/EEC (in this case: distribution of cloud-based software services). The case before the Court of Appeal concerned a commercial agent based in Ireland who distributed the cloud services of a US company in Germany. The parties had subjected their contractual relationship to the law of Delaware and agreed that the courts of San Francisco have exclusive jurisdiction.

Practical takeaway

Berlin Higher Regional Court’s guidance order shows that, under certain conditions, the indemnity can also be excluded outside the scope of Section 92c of the Commercial Code. Thus, the commercial agent’s indemnity can in practice be excluded by way of an appropriate jurisdiction clause and/or choice-of-law clause where the agent is not a commercial agent for the sale of goods and the Commercial Agents Directive therefore does not apply.

As the Federal Court of Justice has already established, a choice of law that results in the authorised dealer not being entitled to an indemnity claim upon termination of the contract is, moreover, not per se excluded in a distributor relationship either. The same must apply to jurisdiction agreements.

Current case law on termination without notice of commercial agency agreements

In a judgment of 11 December 2024 – 7 U 4623/22 (in German), Munich Higher Regional Court once again clarified the requirements for termination without notice of a commercial agency agreement by the principal. The court held that restructuring of the principal’s business can constitute good cause for the principal to terminate the commercial agency agreement without notice. It is not necessary for the business already to be in acute financial difficulty or making losses. This right of the principal is an expression of the principal’s economic freedom to shape the business. Munich Higher Regional Court thus confirmed that good cause for termination without notice by the principal may also lie within the principal’s own sphere. The decision strengthens the principal’s freedom to act at its discretion and is in line with the case law already handed down in this context.

Munich Higher Regional Court left open the question of whether in order to preserve proportionality a phase-out period must be granted to the commercial agent in the event of termination without notice. In the specific case, a phase-out period of five months had been granted to the commercial agent, so the court did not have to reach a final decision on this point.

Practical takeaway

Munich Higher Regional Court’s decision emphasises entrepreneurial freedom and confirms that internal restructuring on the part of the principal can constitute good cause for termination without notice of a commercial agency agreement – even in the absence of an already existing economic necessity. This gives principals more flexibility in adapting their business models, but they should still keep an eye on timeliness, proportionality and the commercial agent’s legitimate contractual interests and take these circumstances into account (e.g., advance information, notice periods, where applicable, termination with due notice as an alternative, where applicable, etc.).

Federal Court of Justice: commercial agent’s right to information also in respect of information not contained in the statement of account (Section 87c of the German Commercial Code)

In its judgment of 24 July 2025 (VII ZR 176/24 (in German), the Federal Court of Justice held that, in addition to the right to a statement of account under Section 87c(2) of the Commercial Code, commercial agents also have an independent right to information under Section 87c(3) of the Commercial Code regarding information that is missing from the statement of account, provided such information is material to their commission claim.

In this context, the claim for the issuance of the statement of account (Section 87c(2) of the Commercial Code) and the claim for information (Section 87c(3) of the Commercial Code), insofar as they relate to different information, may be asserted concurrently in one action pursuant to Section 260 of the German Code of Civil Procedure (Zivilprozessordnung – ZPO). There is no restrictive hierarchical relationship or any mandatory order of priority in which the claims must be asserted.

In the case at hand, a former insurance agent sought information as to which of the contracts he had brokered had, after termination of the agency agreement and during the clawback period, been replaced or supplemented by substitute or additional contracts (e.g., policy switches) concluded with the insurer. The Federal Court of Justice essentially upheld the claim to information but limited it to those cases in which the principal had actually charged back or reduced commission. Only in such cases is there a legitimate interest in further information.

Practical takeaway

The decision clarifies that commercial agents cannot simply be relegated to the statement of account if that statement does not contain information that is important for their commission claim.

At the same time, however, the decision raises new questions. Under the previous case law, a claim to information under Section 87c(3) of the Commercial Code exists only in respect of information that cannot be obtained from the principal’s books. The Federal Court of Justice does indeed refer to this requirement but does not explain at all why the information in issue here should not be apparent from the principal’s books. Instead, it affirms the claim to information without any further examination. This raises the question as to whether that requirement is still necessary. At the same time, the Federal Court of Justice restricts the claim to information to cases where the principal has reduced or charged back commissions. No such limitation exists in established practice in relation to the statement of account. It is therefore not apparent why such a limitation should apply in the case of the claim to information.

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