An agency, which is forbidden, to work for competing entrepreneurs, No Einfirmenvertreter power contract within the meaning of § 92a Abs. 1 HGB.

A self-employed commercial agents, which is forbidden, to work for competing entrepreneurs, and one other activity at the earliest 21 May take days from receipt of the display and presentation of documents relating to their activities, No Einfirmenvertreter power contract within the meaning of § 92a Abs. 1 Set 1 Old. 1 HGB.

Therefore, the legal process is opened to the ordinary courts for disputes arising from the contractual relationship.

Decision VII ZB 27/12 from 18. July 2013

GVG § 13; ArbGG § 5 Abs. 3 Set 1; HGB § 92a Abs. 1 Set 1 Old. 1

BGH, Decision of 18. July 2013 – VII ZB 27/12 – OLG Braunschweig

LG Göttingen – 2 -

There VII. Civil Division of the Federal Court on 18. July 2013 by the Chairperson Prof Richter. Dr. Kniffka, Judge Safari Chabestari, Half the judges Meier, Kosziol and Dr. Kartzke

decided:

On the appeal, the applicant of the decision are the 2. Civil Division of the Higher Regional Court of Braunschweig from 10. More 2012 and the decision of the 8. Civil Chamber of the Landgericht Göttingen from the court- 23. January 2012 canceled.

The trodden by the applicant recourse to the ordinary courts is allowed.

The matter is remanded to the other wide trial and decision, the district court.

The defendant to pay the costs of the appeal- and the legal complaint procedure.

The object value for the appeal process is to 5.000 Set €.

Rationale:

I.

The defendant was for the applicant as a result of an investment adviser agreement dated 24. Mai/14. June 2007 his last position as head of the

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Deals with sales of financial products. Ziffer I. Abs. 5 of the said Treaty reads as follows:

“The exercise of an otherwise employed, the asset consultant indicate in writing before the commencement of such activity. With this display, the company sämtli surface relevant to the proposed activity circumstances are disclosed to and contractual agreements and other documents relating, which is determinative impact on the content of this proposed activi-activity, make it accessible to. The proposed activity shall start no earlier 21 Be included days of receipt of the notification and all documents required. A violation-against constitutes a serious breach of trust”

Ziffer V. Abs. 1 determined the said Treaty:

“The Financial Advisor is committed, to protect the interests of the Company, as him by § 86 I HGB is abandoned. He has also any activity for a competing company or the placement of investments, not belonging to the product range of the company, should be avoided, as the write-tion of financial advisors or other employees or customers of the Company or all of this even trying.”

By letter of 7. February 2011 showed the defendant the plaintiff entered into employment for 1. March 2011 than workers in permanent employment at the Sp. In. an. In a subsequently on 8. March 2011 scheduled meeting between the defendant and the plaintiff employees, there was a dispute with assault, with the exact course between the parties is in dispute.

With letter of attorney 18. March 2011 announced the defendant the contractual relationship with the applicant for good cause. Since then, he is no longer working for the applicant.

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With the action before the district court action, the applicant has announced the following contributions to:

1. determine, that the contractual relationship between the parties dated by the authorized representative of the defendant with a lawyer letter 18. March 2011 explained dismissal before the expiry of the 30. September 2011 is completed;

2. determine, that the defendant is obligated, the plaintiff al-ing to replace damage, to it by its attorney letter from the representative of the defendant 18. March 2011 declared immediate termination has been or. still arises;

3. determine, that the defendant is obligated, the plaintiff al-ing to replace damage, it suffered from it or. will arise, that the defendant prior to the termination of the agency contract to 30. September 2011 an activi-activity to companies other than the applicant, For example, the Sp. W., has received;

4. order the defendant, the applicant for the period from 1. March 2011 until the end of the oral procedure, until no later than 30. September 2011, To give information on unspecified circumstances.

The defendant has criticized the validity of the method adopted and remedies invoked, that § 2 Abs. 1 i.V.m. § 5 Abs. 3 ArbGG was given the jurisdiction of the labor courts.

The district court entered a preliminary procedure under § 17a GVG and has declared by resolution of the recourse to the ordinary courts for inadmissible and referred the dispute to the Labour Court. The immediate appeal by the applicant against this decision is unsuccessful re-mained. With its authorized by the appellate court appeal be-heard the applicant the saying, that the trodden by her recourse to the ordinary courts is allowed.

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II.

The place-like (§ 17a Abs. 4 Set 4 GVG, § 574 Abs. 1 Set 1 No.. 2 Code of Civil Procedure) and also reserves the allowable appeal has success on the merits.

1. The appellate court stated the reasons for its decision essentially:

Gemäß § 5 Abs. 3 Set 1 ArbGG is the responsibility of the Arbeitsgemeinschaft jurisdiction given to the present dispute. The defendant was as Einfirmenvertreter within the meaning of § 92a Abs. 1 Set 1 HGB been working for the applicant. Due to the contractual arrangements it is the pursuit of an on-derweitigen consulting, Mediation- or sales activities not have been possible beings. This follows from the combination of contractual regula-tions. The section I. taken control not exhausted in an obligation of the defendant, but contains a complete make other use of ges disqualification for 21 Days. They also state, that the applicant at the same time the defendant of the opportunity with the contract system, ha-be, for companies, the required, that the agreed treaties with them should not be disclosed, to be independent of a competitive situation worked. The deadline of 21 Days is, among other things depends, that all the necessary documents to the applicant would be submitted, which included assignments such contracts.

Thus, the scheme continued for a certain period of 21 Days for each case and with respect to certain activities for a company, the short term would only take temporary jobs by the defendant in claim, a disqualification. At a time scope of the prohibition it is irrelevant under the law, sufficient reason, a temporary acting activi-keitsverbot for classification as Einfirmenvertreter. Such a,

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the permit requirement of a secondary activity equal standing situation is here given under the scheme chosen by the applicant in the Financial Advisor-contract.

The defendant had also in the past six months ago Klageerhe environment just an average compensation of less than 1.000 Received €.

2. This does not withstand the legal scrutiny.

a) That § 13 GVG belong before the ordinary courts all bour-geois litigation, is justified for not either the competence of administrative authorities or administrative tribunals or are appointed or approved special dishes upon rules of federal law. That § 2 Abs. 1 No.. 3 ArbGG are the labor courts solely re-sponsible for unspecified civil disputes between workers and employers. Handelsvertreter im Sinne des § 84 Abs. 1 Commercial Code shall apply in accordance with § 5 Abs. 3 Set 1 ArbGG only as a worker in the sense of the Labour Court Act, if they belong to the group of people, presented in accordance with § 92a HGB, the lower limit of the contractual services of the entrepreneur may be fixed, and when during the last six months of the contract, with a shorter duration of the contract during this, no longer in average monthly 1.000 Have moved euro on the basis of the contractual relationship to at remuneration including commission and compensation for damage in Ge regular business operations expenses. § 5 Abs. 3 Set 1 ArbGG is in relation to § 5 Abs. 1 Set 2 ArbGG the vorgreifliche special scheme; § 5 Abs. 3 Set 1 ArbGG contains a self-competence keitsregelung, which prohibits, Trade representative under other than § 5 Abs. 3 Set 1 ArbGG conditions referred to as an employee or ar-beitnehmerähnliche persons within the meaning of § 5 Abs. 1 Set 2 Old. 2 You ArbGG

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treat (vgl. BGH, Decision of 27. October 2009 – VIII ZB 42/08, BGHZ 183, 49 Rn. 23; Decision of 25. October 2000 – VIII ZB 30/00, NJOZ 2001, 42, 44 m.w.N.).

To the persons named in accordance with § 92a HGB include sales representatives, the contract may not be working for another entrepreneur (§ 92a Abs. 1 Set 1 Old. 1 HGB; so-called Einfirmenvertreter power contract, vgl. BT-Drucks. 1/3856, S. 40), and sales representatives, where this is not possible according to the nature and extent of the required activities (§ 92a Abs. 1 Set 1 Old. 2 HGB; so-called Einfirmenvertreter power transfer, vgl. BT-Drucks. 1/3856, S. 40). A contractual obligation for the purposes of § 92a Abs. 1 Set 1 Old. 1 HGB consists not only in the cases, where the commercial agent is contractually prohibits, to work for another contractor, but also in the cases of, or in which the exercise of such activity after the Treaty of the A-consent. Approval of the entrepreneur depends and such consent or. Permission obtained (vgl. BAGE 113, 308, 310 f. m.w.N.). For the adoption of a contractual disqualification within the meaning of § 92a Abs. 1 Set 1 Old. 1 HGB is sufficient, however, an agreed competition ban not, because it is not excluded the possibility of, to act on behalf of another contractor industry (vgl. BGH, Be resolution dated 27. October 2009 – VIII ZB 45/08, NJOZ 2010, 2116 Rn. 22 m.w.N.). The agreement of a mere obligation is sufficient for the assumption of a contractual disqualification within the meaning of § 92a Abs. 1 Set 1 Old. 1 HGB not regularly, because it is not excluded the possibility, to work for another contractor (vgl. Emde, Distribution right, 2. Ed, § 92a Rn. 9). For insurance agents, subject to the special arrangements pursuant to § 92a Abs. 2 HGB, The same.

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b) Measured against these principles, the defendant is due to the clauses in Section I. Abs. 5 the investment adviser agreement dated 24. Mai/14. Ju-ni 2007 not as Einfirmenvertreter power contract (§ 92a Abs. 1 Set 1 Old. 1 HGB) classified, why not derive any classification of the defendant as an employee in accordance with § 5 Abs. 3 Set 1 ArbGG i.V.m. § 92a HGB resultiert. Due to the contractual provision in section I. Abs. 5 is an activity of the defendant as a sales representative for more entrepreneurs, as well as an otherwise-employed person generally, from that in Section I. Abs. 5 Set 3 apart above short-term period, not excluded. A veto by the applicant regarding the inclusion of an activity for more entrepreneur is not envisaged. However, the inclusion of such activity by the require-results of a written notification and submission unspecified docu-ments and by the proposed waiting period is 21 Difficult days of receipt of the notification and accompanying documentation. These impediments rei-tion for the adoption of a contractual disqualification within the meaning of § 92a Abs. 1 Set 1 Old. 1 HGB not, however,, because it is not generally the possibility is excluded, to work for other entrepreneurs. If the defendant according to the contractual provision in section I. Abs. 5 was prevented, to act for entrepreneurs, that are pointed to-on a short-term work record and can not wait for the expiry of the waiting period, is not this limitation weighty enough, for a contractual disqualification as defined in § 92a Abs. 1 Set 1 Old. 1 To accept the German Commercial Code. The same applies to the restriction, that lies, that the defendant could not possibly work for other entrepreneurs, who do not agree with a template of the contractual agreements with the applicant. The restriction of the special protection afforded to § 92a HGB to the Einfirmenvertreter finds its justification in, that he is most approximated to an employee in his position; the Einfirmenvertreter is a

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particular contractor bound, for he must be a put-his labor and time, and of which he is thus totally dependent economically (vgl. BT-Drucks. 1/3856, S. 40). Such is the case here is not only given the 21-day waiting period and the lack of veto by the applicant regarding the inclusion of an activity for more entrepreneurs.

In view of the foregoing, it may be left open in the present context, whether the clauses in Section I. Abs. 5 of the assets adviser agreement dated 24. Mai/14. June 2007 are effective, withstand a possible particular content control in every respect.

3. The contested decision of the Appeals Court also does not arise for reasons other than properly represent. The defendant is not due to the clauses in Section V. Abs. 1 the investment adviser agreement dated 24. May / 14. June 2007, to which he is pleading with the 22. July 2011, Page 1 has moved, as Einfirmenvertreter power contract (§ 92a Abs. 1 Set 1 Old. 1 HGB) a-be classified. It can be left open in the present context, whether only a prohibition of competition to the extent is statuiert with this regulation, as it already from § 86 Abs. 1 HGB results (vgl. BGH, Judgment of 18. June 1964 – VII ZR 254/62, BGHZ 42, 59, 61; BGH, Decision of 25. September 1990 – CAR 2/89, BGHZ 112, 218, 221 Package Travel agency, m.w.N.; BAGE 93, 112, 127 m.w.N.), or whether it contains a disqualification, the information about the from § 86 Abs. 1 HGB resulting competition ban goes. Even if the latter should be the case, extends this for the adoption of a contractual disqualification within the meaning of § 92a Abs. 1 Set 1 Old. 1 HGB from, because it is thereby at least not excluded the possibility of, to act for entrepreneurs of another industry outside the mediation of capital invested (vgl. BGH, Decision of 27. October 2009 VIII ZB 45/08, NJOZ 2010, 2116 Rn. 22, at an agreed competition-

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ban). In that regard, there are, whether the clauses in Section V. Abs. 1 the asset consultant agreement dated 24. Mai/14. June 2007 are effective, withstand particular re a possible content control in every respect.

4. The Senate has to decide with regard to the legal question on the merits, since other findings are not expected to (§ 577 Abs. 5 Set 1 Code of Civil Procedure). The to the ordinary courts trodden by the applicant legal action is permitted. The defendant alone has supported in the trial courts the competence of the labor courts on, that he Einfirmenvertreter within the meaning of § 92a Abs. 1 Set 1 HGB due to the regulations of the assets adviser agreement dated 24. Mai/14. June 2007 was.

5. The cost is based on § 91 Abs. 1 Code of Civil Procedure.

Kniffka Safari Chabestari Halfmeier

Kosziol Kartzke

Lower courts:

LG Göttingen, Decision of 23.01.2012 – 8 The 142/11 -

OLG Braunschweig, Decision of 10.05.2012 – 2 In 37/12 -

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