The Hamburg Regional Court has now considered the agency's claims to be unfounded in a (not yet final) judgment of July 27, 2023 (322 O 386/22). In doing so, it fully followed the arguments of our law firm. On behalf of our client, we claimed that commercial agency law cannot regularly apply to management relationships and that this could also not be circumvented by incorporating the regulations of commercial agency law in a formal and blanket manner.
Attorney Dr. iur. Sven Dierkes explains:
The decision of the district court is to be welcomed and prejudices the widespread bad habit of imposing barely manageable post-contractual commission demands within the framework of management contracts in the event that they want to separate from the agency.
As part of the decision, the district court agreed with both our opinion and that of the Hanseatic Higher Regional Court that management agencies should regularly not be equated with commercial agents. This can only be agreed with, if only because management agencies do not usually work exclusively for one artist, but serve many competing artists. It should also be considered that the management agency may also take into account the interests of (advertising) customers. All this may result in a duplication of agency activity, which is in no way in line with the sales representative's guiding principle.
Fortunately, the district court has also clarified that a claim for payment of a commercial agent compensation cannot be easily brought about by including the provisions of commercial agency law in the management contract by referring to Sections 84 et seq. of the German Commercial Code. It fully followed our view that the clause used in the specific case was opaque and thus violated Section 307 (1) BGB. It has also followed our view that the clause used here also unduly disadvantaged the influencer. This was because the agency had also required a post-contractual commission for existing customers in the contract. However, in the event of termination of the management contract, a double commission would have been due for existing customers.
In summary, it can be said that the decision significantly strengthened the position of influencers. This is because clauses according to which commercial agency law should apply in the event of termination of the management contract are widespread and agencies often confront their protégés with high post-contractual commission requirements if they want to leave the agency.
