The action by stages in distribution law

4. Mar 2019 News

I. General Information about the action by stages 

The action by stages according to § 254 ZPO  has got an enormous importance in the distribution law, especially in the law of commercial agency. Typical altercations include for instance the commission payment claims of the commercial agent.

To estimate those claims you need certain kind of information, which is needed in the first step of the action. Based on the information gathered in the first step, the second step is all about the prosecution of that claim (only on this stage the application has to be as precise, as § 253 II Nr. 2 ZPO requires).

This was also the case in a judgement by the OLG Munich on the 11. April 2018 (7 U 1972/17): the aim of the first stage was to be granted a statement of account. The aim of the second stage then was the granting of the payment of the commission, which were quantified by the statement of account.

Also a three stage variant is very common. In this variant there is another stage between the gathering of the Information and the pursuing of the claim. In this step in between the claimant pursues an affirmation in lieu of an oath, so that he can bei certain that the provided information are true.

II. Further procedural aspects

The action by stages serves among other things to make the trial more economical, because it enables the court to decide about all relevant applications in one trial only, instead of deciding over every application in separate trials.

The action by stages is a special case of the objective accumulation of individual claims according to § 260 ZPO. All of the applications are sub juice; though the applications won’t be decided at the same time, but rather stage by stage. As an exception there can be a joint negotiation with a unified decision with regards to more than one stage, if the examination of the claim to information unveils the missing of a legal basis for the main claim (Bundesgerichtshof, judgement by default, 28. November 2001, VII ZR 37/01). Regularly there is a partial verdict on the first two steps and a final judgement regarding the third step (see above, typically an application on for payment). If the claim is denied, appeal and revision can be considered as legal remedies. The legal remedies against one stage do not affect any other stages of application.

In the final verdict there is a unified decision on costs, but the prevailing opinion calculates each stage on its own according to § 91ff. ZPO.

III. Supplementary details to the application; distinction by sales mediators

Conflicts with commercial agents often involve questions about the commission settlement and the granting of a statement of account. In those situations the actions from the first step and the actions from the second step can be combined if there is reasonable doubt about the diligence of the principal with regards to the compulsory accounting disclosures. On the third level, the plaintiff applies for a general sense that the principal has to pay the amount of money he owes the commercial agent because of the statement of account plus interest rates (and other claims ,§ 89b HGB).

However, it doesn’t have to be both in common, i.e. billing and the distribution of the book excerpts, that has to be applied for at the first level, because the billing may already exist. If this is the case, the plaintive commercial agent could request to convict the defendant in course of the action by stages, one after another.

1) to issue an orderly and clear book excerpt according to § 87c II HGB concerning all transactions which occurred in the period between the defendant and the customer, whose delivery address was within the area served by the claimant as agent for the defendant during this period, this extract has to contain at least the following information: [Following information like e.g. The identity of the customer and order-related details];

2) if necessary, to assure the correctness and completeness of the copy of the excerpt in accordance with claim 1);

3) to pay the plaintiff the commissions/further claims for compensations in an amount to be determined after granting the book excerpt and any affidavit pursuant to claim 2), together with interest rates amounting to 9 percentage points above the basic rates since lis pendens.

For dealers, it is slightly different than for sales representatives. Of course, even in dealer disputes the action by stages in accordance with §254 ZPO can occur. Nevertheless, usually the dealer obtains a trade/merchant margin, but not a commission, and therefore no billing obligations or book excerpts. information claims of the authorized dealer may result in principle arise, e.g. from § 242 and §666 BGB. This may be of similar importance with regard to the preparation of compensation claims in accordance with § 89b HGB(cf. Landgericht Düsseldorf, partial verdict of the 28th August 2015, 33 O 119/12).The same applies for franchisees. For commission agents, the situation is comparatively complicated. In this respect, the claim to the granting of a commission settlement (analogous to § 87c I HGB) is relevant to the practice. The information rights e.g. on the issuing of a book excerpt or the access to the books are usually irrelevant because the commission agent himself completes the transactions on whose bases he can claim the commission in his own name. Therefore he was aware of all circumstances which were relevant to the calculation of the commission (exception: district commission analogous to § 87 II HGB)

IV. Final practical notes

The action by stages is a useful instrument in order to combine the exchange of information and the affirmative relief in a process-economical way. Especially with regard to the claims pursuant to §§ 87c, 89b HGB, it should be examined if the action by stages is an alternative to an independent claim regarding commission and compensation. The structuring of an action by stages should be well considered. Especially, the facts should be examined in detail to determine which stages are needed or appropriate.

In practice, it is quite overlooked, that in view of the frequently encountered requests for issuing a book excerpt, the respective commercial agent may lack the necessary interest in information or legal protection for the assertion of a book-withdrawal claim, which is the basis for the corresponding rights of information. The Hannover district court has e.g. rightly stated (LG Hannover, judgment of February 7th 2011 – 23 O 4512/99-128) that the claim to a book excerpt according to § 87c II HGB requires the possibility that because relevant facts arise, they are important for the commercial interests of the commercial agent. Still, if the commercial agent already has all relevant information, then he doesn’t need a book excerpt; it lacks the need for legal protection.

Even such information, which haven’t got any significance for a payment claim of the commercial agent cannot be demanded.

Incidentally, the Court of Appeals and the Hannover district court have developed criteria, as to when the assertion of book-draw claims is an abuse of rights (cf. KG Berlin, judgement of the 15th May 2006 – 23 U 96/05; LG Hannover, 7th February 2001 – 23 O 4512). It is by no means certain that book claims in court are successful. Here it is worthwhile for companies to investigate the individual case or to have it litigated by a lawyer.

L. Nagy
Fachanwalt für Internationales Wirtschaftsrecht
Fachanwalt für Handels- und Gesellschaftsrecht

T. +49 911 9360090




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