In respect of agency agreement, a probationary period cannot be stipulated, which would allow the agreement to be terminated with immediate effect, as in the case of the employment agreements (assuming a certain minimum term of such an employment agreement).
In case law, a specific way of calculating the compensation for the agent has developed.
The three-phase key for calculating the customer remuneration at the end of the agency agreement as set out in the T-Mobile judgment of The Supreme Court of 2 November 2012 now appears to be followed regularly by the courts.
In the first phase, the benefits that transactions involving the commercial agent's have for the principal In short, in this context, in phase one the benefit of the principal fixed at the last 12 months gross commission earned in respect of new and intensified existing customers, what amount of money was then earned in respect of the new and intensified existing customers, and what amount of money was earned in respect of the new and intensified existing customers? Which shall be corrected by factors relating to (a) duration of the benefit that the principal is expected to be able to derive from the transactions with said customers, (b) the evolution of the customer base; and (c) the accelerated receipt of commission income by the agent, which is paid out once.
In phase two a fairness adjustment shall be made, taking into account in all the circumstances of the case, in particular on the commission foregone by the agent.
Finally, in phase three, the amount found from the two previous phases is capped at the remuneration for one year, calculated as follows to the average of five years.
However, since a recent Supreme Court of 19 May 2017 it is clear that the 'calculation method' cannot be applied by default without taking into account the preliminary question as to whether the conditions for an entitlement to customer compensation have been met, and that the obligation to make a statement of expenditure and to pay a fee have been met. The burden of proof in this respect lies with the agent. Among other things, the Supreme Court ruled that the agent must demonstrate that the principal can still expect new transactions from customers introduced or intensified by the agent to a relevant extent.