pagliaro-rechtsanwalt

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In Germany there is no NATIONAL COLLECTIVE AGREEMENT regulating the indemnity in the case of termination of contract. One of the mandatory provisions is the infamous entitlement to indemnity on termination of the commercial agency by the principal. The fee is based on the statement of accounts. In the German context, this is a special instrument which causes considerable pressure on the principal.

If German law is applicable to the business relationship with the agent, e.g. if the assistance is carried out on German territory without reference to Italian law, the agent's rights at the end of the relationship are asserted by means of a gradual appeal, divided into three levels, i.e. in the first instance the right to claim information in the form of an accounting statement, in the second instance the claim for payment of commissions and in the third instance the payment of the indemnity. The application at first instance shall be upheld by partial judgment and shall constitute the basis for subsequent applications.

The defendant principal is obliged to draw up an accounting statement on the basis of the parameters of German law, which causes an exceptional management commitment.

As a rule, only invoices, invoice amounts and commission amounts are listed in the commission calculations. The sales representative cannot deduce from these all the circumstances that are important for the commission. German case law therefore recognises the right of the agent to be issued with an accounting statement. The statement is an excerpt from the books of the principal. Since the law does not define the claims to an accounting statement, the Federal Court of Justice has thus established the details of the statement there are:

    Date of commission
    Commission number
    Value of the goods according to commission
    Quantity of the goods according to commission
    Invoice date
    Invoice number
    Invoice amount
    Customers with exact address
    Stage of execution of the transaction, i.e. the status of execution of the order
    Amount of payment made
    Cancellations and cancellations / reasons

Only if all this information is included in the commission calculation or if the sales representative has recognised the commission calculation does the sales representative no longer have a legitimate claim against the issue of an accounting statement.

If the statement of accounts is subject to justified doubts as to its completeness or accuracy, the sales representative then has a legitimate claim to view the statement in accordance with Art. 87c Abs. 4 HGB. This examination of the extract is based on the choice of the entrepreneur by the sales representative himself or by an auditor or an auditor selected by the sales representative. The commercial representative may take an auditor or an auditor with him/her. The commercial representative must first pay the auditor or the auditor in a manner different from that used to implement the statement of account. He may, however, claim compensation for these costs if the auditor or the competent auditor establishes that the statement of accounts is incomplete or incorrect.

In addition, the commercial representative shall have a legitimate claim to additional information from the statement of accounts concerning the question of commissions and commercial relationships, which are absent or wrongly defined in the statement of accounts.

The commercial representative may request the provision of a sworn guarantee that the accounting statement is correct and complete if, after examination of the statement, doubts remain as to its correctness and completeness.


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tel. 0221 9483941 (italienisch)
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