The Federal Court of Justice recently ruled in line with its own case law (cf previous judgment, April 17 1996, VIII ZR 5/95) that an authorised dealer (and therefore other sales intermediaries such as franchisees) has no compensation claim in analogous application of the regulation governing sales representatives contained in Section 89b of the Commercial Code if the manufacturer/supplier or franchisor is contractually obliged to block the customer data provided to it by the sales intermediary (eg, the authorised dealer or franchisee), to discontinue using it and to delete it at the request of the sales intermediary when the contract is terminated (February 5 2015, VII ZR 315/13).
According to the Federal Court of Justice's consistent case law, two requirements must be met for a compensation claim of an authorised dealer or franchisee to arise in analogous application of the statutory regulation relating to sales representatives (Section 89b of the Commercial Code):
- the integration of the authorised dealer/franchisee in the sales organisation of the manufacturer/supplier or franchisor; and
- the obligation of the authorised dealer/franchisee to transfer its customer base to the manufacturer/supplier or franchisor so that the latter can easily utilise the benefits of the customer base when the contract is terminated (see also Federal Court of Justice decisions VIII ZR 352/04 paragraph 13, June 13 2007; VIII ZR 25/08 paragraph 15, January 13 2010; and VIII ZR 209/7 paragraph 17, October 6 2010).
The question of when such an obligation to transfer the customer base exists is a particularly controversial issue in practice. One example is when the transfer obligation does not have to be set out expressly in the contract. It is sufficient that the transfer obligation results at least indirectly from the contractual agreement (see Federal Court of Justice NJW 1981, 1961, 1962; and Federal Court of Justice NJW 1983, 2877, 2878).
The administrator of the insolvent sales intermediary (the debtor) took legal action against the manufacturer for the payment of compensation in accordance with Section 89b of the Commercial Code. A sales intermediary contract and a separate agreement on the transfer of customer data for the purposes of customer management by the defendant and market research formerly existed between the debtor and the defendant. This separate agreement was not a requirement for the conclusion of the sales intermediary contract. It governed, among other things, the fact that:
- the debtor had to disclose the customer data to the manufacturer on an ongoing basis for the purposes of customer management and market research;
- customer management ended, for example, when the sales intermediary contract was terminated; and
- the manufacturer or franchisor had to block the data provided, stop using it and delete it on request when the debtor's involvement in customer management ended.
The separate agreement also contained an offer made by the defendant to purchase the customer data after the sales intermediary contract was terminated. The sales intermediary contract was terminated by the defendant without notice for good cause. No agreement on the purchase of the customer data was entered into.
The Federal Court of Justice ruled that there was no claim to compensation because the obligation to transfer the customer base required for the analogous application of Section 89b of the Commercial Code was lacking. The court stated that the defendant could not easily utilise the customer data provided to it by the debtor for itself when the sales intermediary contract was terminated. It added that this possibility did not exist if the manufacturer or franchisor, as in this case, was obliged when the contract was terminated to block the customer data provided to it, to stop using it and to delete it at the request of the sales intermediary. As a comparison, the court referred to its case law according to which customer data cannot be used if a trustee used by the manufacturer or franchisor, whom the sales intermediary must provide with the customer data, is obliged by law (even without a corresponding contractual agreement) to delete the customer data provided to it after the contract has been terminated (Sections 11, 28 and 35 of the Federal Data Protection Act and Sections 667 and 675 of the Civil Code). The court ruled that the case facts were similar because in both cases (ie, the contractual obligation to block the customer data and the statutory obligation to delete the customer data) the manufacturer or franchisor could not easily utilise the customer data provided to it for itself when the contract was terminated.
The court pointed out that it was irrelevant whether the sales intermediary demanded the deletion of the blocked data because the obligation to block the data existed independently of such a demand. The court also stated that it was irrelevant that the manufacturer or franchisor could, in breach of its contractual obligations, still de facto access the customer data provided to it in the period between the contract being terminated and the data being deleted.
According to the court, the debtor could therefore resort to the customer data relating to the customer base acquired by it and continue to use this in its own interest. However, if the debtor no longer had the customer data due to its obligation to transfer it, or the data was incomplete, the defendant had a post-contractual secondary obligation to make the customer data provided to the debtor available to it again.
The court appears to have deliberately left open whether a compensation claim of the sales intermediary or franchisee analogous to Section 89b of the Commercial Code is already unsuccessful due to the fact that the obligation to disclose customer data is governed by a separate agreement which there is no obligation to conclude. The court also focused on whether the manufacturer/supplier or franchisor could immediately and easily utilise the benefits of the customer base when the contract is terminated. This key issue will therefore continue to play a decisive role in contract drafting practice in particular.
For further information on this topic please contact Karsten Metzlaff at Noerr LLP's Berlin office by telephone (+49 30 20 94 20 00) or email (firstname.lastname@example.org). Alternatively, contact Karl Rauser at Noerr's Munich office by telephone (+49 89 28 62 80) or email (email@example.com). The Noerr LLP website can be accessed at www.noerr.com.
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