In Germany, commercial agency contracts are governed by sections 84 – 92c of the German Commercial Code (Handelsgesetzbuch, HGB). These sections implement the Council Directive 86/653/EEC of December 18, 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents (‘EU Agency Directive’) into German law. They define the main entitlements and duties of an agent and of the company/person represented by the agent.
Additionally, as far as sections 84 – 92c of the HGB do not contain specific provisions, the German Civil Code (Bürgerliches Gesetzbuch, BGB) applies, in particular relating to the conclusion of the contract, the effectiveness of declarations, damage claims due to breaches of duties, calculation of time periods, etc.
It is important to know that the German Civil Code provides specific law for contracts in which standard terms and conditions are used. German jurisdiction interprets the notion ‘standard terms and conditions’ widely. It is sufficient that the term is designed for multiple uses or at least looks as if it is designed for multiple uses. Section 307 et seq. of the BGB specify the principle of good faith and protect the other party in general terms and conditions against unreasonable disadvantage. The German concept of the review of standard terms and conditions goes beyond what is established under the European Directive 93/13/EEC on unfair terms in consumer contracts. It applies to a certain extent also to B2B cases and is therefore quite strict. If a contractual clause is considered to be an unreasonable disadvantage for the other party, such a clause in a contract is void and is replaced by statutory law. The law on general terms and conditions is mandatory and cannot be waived by the parties. The European competition law including the Vertical Block Exemption (Commission Regulation (EU) of April 20, 2010) has to be taken into consideration if the agent alone bears, according to the agreement with his principal, the financial or commercial risks in relation to the contracts concluded and/or negotiated on behalf of the principal, or in relation to market-specific investments for the field of the offered products.