A compensation claim by an authorised dealer by analogous application of Section 89b of the German Commercial Code is, at least, excluded where the manufacturer is contractually obliged, upon termination of the agreement, to block the customer data provided by the dealer, cease using it and delete it at the dealer’s request. The claimant, a motor vehicle dealer, had entered into an authorised dealer agreement with the defendant as well as a separate agreement on the transfer of customer data, both of which were terminated by the defendant extraordinarily with immediate effect. The customer data transfer agreement provided, among other things, that upon termination of the dealer’s participation in customer support, the defendant would block the data provided by the dealer, cease using it and delete it at the dealer’s request, unless the parties concluded a purchase agreement concerning the data. The claimant now seeks a compensation payment by analogous application of Section 89b HGB.
An authorised dealer is entitled to a compensation claim by corresponding application of Section 89b HGB only if there is a legal relationship between the dealer and a manufacturer that goes beyond a mere seller-buyer relationship. On the basis of special contractual arrangements, the authorised dealer must be integrated into the manufacturer’s distribution organisation in such a way that, from an economic perspective, the dealer performs to a substantial extent tasks that would otherwise be performed by a commercial agent. In addition, the authorised dealer must be obliged to transfer its customer base to the manufacturer, enabling the latter to make immediate and unrestricted use of the benefits of that customer base upon termination of the contract. In the present case, the requirement of transferring the customer base, which is necessary for the corresponding application of Section 89b HGB, was not met. Although the claimant purchased new vehicles from the defendant subject to retention of title and assigned the purchase price claims against customers to the defendant as security by way of a global advance assignment, this did not create an immediate obligation to disclose customer data. Nor is the authorised dealer’s obligation, in the security case under Section 402 of the German Civil Code, to provide the manufacturer with the information necessary to assert the claim against the customer equivalent to an obligation to transfer customer data within the meaning of Section 89b HGB, since the manufacturer does not thereby obtain comprehensive knowledge of the customer base. Likewise, under the authorised dealer relationship there is at least no obligation to transfer the customer base where, as here, the manufacturer is contractually obliged upon termination of the agreement to block the customer data provided by the authorised dealer, cease using it and delete it at the dealer’s request.
Practical note: The decision shows how a customer data transfer agreement can be structured in order to exclude an authorised dealer’s compensation claim by analogous application of Section 89b HGB. In particular, in cases where continued use of the customer data by the manufacturer is not strictly necessary, the decision points to a solution that is easy to implement in practice.
Federal Court of Justice, judgment of 5 February 2015 – VII ZR 315/13 = BeckRS 2015, 03450
Source: NJW-Spezial 8/2015
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