Bundesgerichtshof; 2016-12-15; VII ZR 221/15
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2016:151216UVIIZR221.15.0
Date: 2016-12-15
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82016DE1215(51)_ENG_SUMJURE
JURE summary
JURE summary
A commercial agent (hereinafter ‘the plaintiff’) domiciled in Germany brought an action for the payment of loyalty bonuses against a company domiciled in Sweden (hereinafter ‘the defendant’). The plaintiff alleged that after the termination of a commercial agency contract and the payment of the corresponding compensation, he was also entitled to a company pension (‘loyalty bonuses’).
The Landgericht Stuttgart (hereinafter ‘the Court of First Instance’), by a final judgment, ordered the defendant to make the payment of the loyalty bonuses within a certain period and subsequently on monthly payments until the plaintiff’s death.
The defendant’s appeal before the Oberlandesgericht Stuttgart (hereinafter ‘the Court of Appeal’) was unsuccessful.
The defendant’s appeal to the Bundesgerichtshof (hereinafter 'Supreme Court') was found admissible and justified.
The Supreme Court held mainly the following. The Court of Appeal correctly considered that the claim for payment of loyalty bonuses was admissible (from the jurisdiction point of view). The Brussels I Regulation (1) applies temporally, factually and spatially. The conditions laid down in Article 5(1)(b) were fulfilled. The plaintiff may assert his claims in another Member State in the courts for the place where the obligation (payment of retirement allowance) was or should have been fulfilled. In this specific case, it is the place of residence of the applicant in Germany.
The activities of a commercial agent should be subsumed under the second indent of Article 5(1)(b) of the Brussels I Regulation because, according to the case-law of the CJEU (2), it is a service.
The Court of Appeal considered the claim to be justified despite the fact that the plaintiff, before taking the case to the courts, had failed to seek an amicable agreement in accordance with the commercial agency contract. The defendant, which must bear the burden of proof regarding the primacy of the conciliation procedure, did not bring this argument in time, although it raised the plea of primacy of the conciliation procedure. The association referred to in the commercial agency contract no longer existed as an arbitration board, and the defendant had not set out, despite a court demand, within the time allowed for comment, that a specific successor association offers a conciliation procedure.
However, for the success of the appeal it is substantial that the plaintiff has already asserted the right to compensation, which means that the entitlement to an additional benefit according to the statute of the representative fund (loyalty bonuses) has expired (2). According to this provision, the plaintiff waives his right to claim the loyalty bonuses by enforcing the compensation.
Such a provision, as the Supreme Court has already held in the past (3), does not violate any mandatory laws nor is it ineffective because of an inappropriate disadvantage for the plaintiff. The Supreme Court annulled the judgment of the Court of Appeal and amended the final judgment of the Court of First Instance, so that the plaintiff’s claim was dismissed.
(1) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Court of Justice of the European Union.
(3) Section 13(1) sentence 2 of the commercial agency contract.
(4) See judgment of 05/21/2003 - VIII ZR 57/02.