I. General remarks on staged actions
\nThe staged action under section 254 of the German Code of Civil Procedure (ZPO) is of considerable practical importance in distribution law, particularly in commercial agency law. Typical disputes concern, for example, possible claims of the commercial agent for further commission payments.<\/p>\n
In order to quantify such claims, certain information is often required first. This information is asserted at the first stage of a staged action, while the second stage typically concerns the claim for performance; only at this stage must the claim for performance be formulated and quantified with the degree of precision required by section 253(2) no. 2 ZPO.
\nThis was the case, for example, in the matter underlying the judgment of the Higher Regional Court of Munich of 11 April 2018 (7 U 1972\/17), where the first stage concerned the provision of an extract from the books, and the second stage concerned payment of the commissions to be quantified after that extract had been provided.<\/p>\n
A three-stage structure is also frequently encountered in practice. In that case, between the two stages mentioned above \u2014 provision of information and claim for performance \u2014 an intermediate second stage is inserted, namely the sworn statement that the information provided is accurate. The claim for performance then moves to the third stage.<\/p>\n
II. Further procedural aspects
\nThe institution of the staged action serves, among other things, procedural economy, because it enables the relevant applications to be decided in a single set of proceedings rather than in several separate proceedings.<\/p>\n
The staged action is a special case of objective joinder of claims under section 260 ZPO. All applications become pending when they are filed; however, the individual applications are not decided simultaneously, but only step by step, i.e. each stage is decided only after the preceding stage has been completed. Exceptionally, a joint hearing and a single decision covering several stages may take place if the examination of the right to information already shows that the main claim lacks a substantive legal basis (Federal Court of Justice, default judgment of 28 November 2001, VIII ZR 37\/01). As a rule, however, a partial judgment is issued with regard to the first two stages, i.e. the applications for information and for a sworn statement, and a final judgment is issued with regard to the last stage (as noted above, typically an application for performance). Appeals and, where applicable, further appeals on points of law may be lodged against the partial judgment relating to a stage; in the Munich Higher Regional Court case mentioned above, leave to appeal on points of law was not granted. Appeals against a partial judgment concerning a right to information do not affect the applications at the subsequent stages.<\/p>\n
The final judgment contains a single decision on costs, although according to the prevailing, but not unanimous, view the scope of the costs must be determined separately for each stage pursuant to sections 91 et seq. ZPO.
\nIII. Additional notes on formulating applications; distinctions between distribution intermediaries
\nIn practice, commercial agency disputes often revolve around issues of commission accounting and the provision of an extract from the books.<\/p>\n
The application for the provision of a commission statement \/ an extract from the books or inspection of the books (first stage) is often combined with an application for a sworn statement (second stage) if, on the basis of the principal\u2019s overall conduct, there are doubts as to the required diligence, i.e. completeness and accuracy, in the accounting. For the third stage, an application is then made \u2014 initially in general terms \u2014 that the defendant principal be ordered to pay the claimant commercial agent the commissions or further claims, such as those under section 89b HGB, to be quantified on the basis of the accounting, the extract from the books or the inspection of the books, together with interest.<\/p>\n
However, it is not necessary to apply for both accounting and provision of an extract from the books together at the first stage. The accounting may already have been provided. If this is the case, the claimant commercial agent could, for example, apply for the defendant to be ordered, by way of staged action, successively:<\/p>\n
1) to provide the claimant with an orderly and clearly structured extract from the books pursuant to section 87c(2) HGB concerning all transactions concluded during the period [\u2026] between the defendant and customers whose delivery address during that period was located within the territory served by the claimant as the defendant\u2019s commercial agent, such extract to contain at least the following information: [details follow, such as customer identification and order-related details];<\/p>\n
2) if necessary, to swear to the accuracy and completeness of the extract from the books to be provided pursuant to application no. 1;<\/p>\n
3) to pay the claimant the commissions still due to him \/ her and any further compensation claims in an amount to be determined after provision of the extract from the books and any sworn statement pursuant to application no. 2, together with interest thereon at a rate of 9 percentage points above the base interest rate from the date of pendency.<\/p>\n
The situation is somewhat different for authorised dealers than for commercial agents. Staged actions under section 254 ZPO may of course also arise in disputes involving authorised dealers. However, an authorised dealer generally earns a trading margin \/ dealer margin, not a commission, and there are no accounting obligations or extracts from the books. Nevertheless, authorised dealers may in principle have rights to information, for example under section 242 BGB and section 666 BGB. This may be relevant in preparing compensation claims under section 89b HGB by analogy (see Regional Court of D\u00fcsseldorf, partial judgment of 28 August 2015, 33 O 119\/12). The same applies to franchisees.<\/p>\n
In the case of commission agents, the situation is comparatively complicated. In practice, the relevant starting point is the claim for provision of a commission statement, by analogy with section 87c(1) HGB. Rights to information, for example to the provision of an extract from the books or inspection of the books, are generally irrelevant, because the commission agent concludes the transactions on the basis of which commission may be claimed personally and in his\/her own name; the commission agent therefore has knowledge of all circumstances relevant to the calculation of the commission. Exceptions may arise in particular in relation to territory commission by analogy with section 87(2) HGB.
\nIV. Concluding practical notes<\/p>\n
The staged action is a useful means of combining requests for information and claims for performance in a procedurally efficient manner in distribution-law practice. In particular with regard to claims under sections 87c and 89b HGB, it should be examined whether a staged action may be the method of choice instead of an independent action concerning commission and compensation claims.<\/p>\n
The structure of the staged action should be carefully considered. In particular, the facts should be examined in detail in order to determine which stages are necessary or expedient.<\/p>\n
In practice, it is often overlooked that, with regard to the frequently asserted requests for the provision of an extract from the books, the respective commercial agent may lack the necessary interest in information or need for legal protection required to assert such a claim, which forms the basis of corresponding rights to information. The Regional Court of Hanover, for example, rightly stated (LG Hanover, judgment of 7 February 2011 \u2013 23 O 4512\/99-128) that the claim for an extract from the books under section 87c(2) HGB presupposes the possibility that the extract may reveal relevant unknown facts that may be significant for the realisation of the commercial agent\u2019s economic interests. If, however, the commercial agent already has all relevant information, then he\/she also does not require an extract from the books; the need for legal protection is lacking.<\/p>\n
Nor may the commercial agent demand information that clearly has no relevance to a payment claim.
\nThe Higher Regional Court of Berlin and the Regional Court of Hanover have, moreover, developed criteria for determining when the assertion of claims for extracts from the books is abusive (see KG Berlin, judgment of 15 May 2006 \u2013 23 U 96\/05; LG Hanover, judgment of 7 February 2001 \u2013 23 O 4512). It is by no means certain that claims for extracts from the books will be successful in court. For companies, it is therefore worthwhile to examine the individual case closely, or to have it examined by legal counsel.<\/p>\n","protected":false},"excerpt":{"rendered":"
I. General remarks on staged actions The staged action under section 254 of the German Code of Civil Procedure (ZPO) is of considerable practical importance in distribution law, particularly in commercial agency law. Typical disputes concern, for example, possible claims of the commercial agent for further commission payments. In order to quantify such claims, certain […]<\/p>\n","protected":false},"author":29,"featured_media":55431,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[139],"tags":[],"class_list":["post-55429","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-news-en"],"acf":[],"aioseo_notices":[],"aioseo_head":"\n\t\t\n\t\n\t\n\t\n\t\n\t\n\t\n\t\t