Clause in a commercial agency contract “poach the Company's customers or this even trying” is invalid for infringing the principle of transparency.

The contained in a commercial agency contract, Asked by the entrepreneur as ERAL-ne business condition determination “The Financial Advisor is committed, to refrain for a period of two years after termination of Handelsvertreterver-holds isses, poach the Company's customers or this even trying” is infringement of the principle of transparency in accordance with § 307 Abs. 1 Set 1 i.V.m. Set 2 BGB ineffective.

BGH URTEIL VII ZR 100/15 from 3. December 2015 – Handelsvertretervertrag / non-solicitation
HGB § 90a; BGB § 307 Abs. 1 Bm.
The contained in a commercial agency contract, Asked by the entrepreneur as ERAL-ne business condition determination “The Financial Advisor is committed, to refrain for a period of two years after termination of Handelsvertreterver-holds isses, poach the Company's customers or this even trying” is infringement of the principle of transparency in accordance with § 307 Abs. 1 Set 1 i.V.m. Set 2 BGB ineffective.
BGH, Judgment of 3. December 2015 – VII ZR 100/15 – OLG Karlsruhe
LG Mosbach
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There VII. Civil Division of the Federal Court from the hearing 3. December 2015 durch den Vorsitzenden Richter Dr. Eick, die Richter Dr. Kartzke und Prof. Dr. Jurgeleit und die Richterinnen Graßnack und Sacher
hereby:
The revision of the plaintiff against the judgment of 15. Civil Division of the Higher Regional Court of Karlsruhe 17. April 2015 is refused Meadows.
The applicant has to bear the costs of this appeal.
As of right
Facts:
The applicant puts forward against the defendant, their former course of trade-representative, various claims in connection with a nachvertragli-chen competition clause (here: Prohibiting the solicitation of customers) submit.
The applicant provides as a distribution company as part of its All-financial offer various financial services, in particular industrial property-che and private financing, a variety of savings- and investment products and insurance policies and savings contracts.
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The defendant was for the applicant as a sales representative (Vermögensbera-ter) due Financial Advisor Agreement dated 25. Mai/14. June 2007 active. No.. In. this Agreement provides in relevant part as follows:
“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, as well as to refrain from the devaluation-ben from financial advisors or other employees or customers-to the company or all of this even trying.
The Financial Advisor is committed, to refrain for a period of two years after termination of the agency relationship, the Company's Financial Advisor, poach other employees or customers or ter-all this just to versu-chen.
If you think of the Financial Advisor to only one of the existing prohibitions-vorste, he shall for each case of infringement to the Company a contractual penalty in the amount of 25.000 To pay Euro, even for any attempt remained unsuccessful. This penalty is the amount, to an amount be-limits, of the six-month commission remuneration of the Ver-like adviser – calculated according to the average of the last three years before the breach – equivalent. Further damage claims remain unaffected. …”
The contractual relationship between the parties has been the defendant in a letter dated 24. February 2011 for 30. September 2011 terminated.
The applicant submitted, did the defendant against his Ver-obligation from No.. In. the Financial Advisor TREATY, by the period 2012/2013 tried or he had succeeded, four more detail be-recorded customer, which would have been completed with product partners of the applicant insurance contracts, termination or modification of such contracts to be-
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be right. This circumstance let suspect, that the defendant had committed further offenses.
In an action by stages, the applicant seeks to prepare for a possible claim for damages, order the defendant to communication of information, when (exact time) is – since 30. September 2011 to 30. September 2013 – which customers of the applicants-rin (anonymized personal data of customers) has designed or trying to determine, their contracts (exact description) to finish with the Pro-duktpartnern the applicant and / or restrict content. The applicant also has the original application (Motion No.. 1), to condemn the Be-accused, it on pain unspecified order means to 30. September 2013 to stop, neither personally nor turn one-third by customers of the applicant, which have concluded agreements with Ver-its partner companies, to move to completion and / or substantive limitation of contracts, or all of this even trying, then Ge changes, determine the original merits of on-contract after completion declaration and determine by way of interim declaratory action, that the defendant was under an obligation, to compensate it for any damage, arising from their, that the defendant their customers, which have entered into agreements with its partner companies, moves to completion and / or substantive amendment-tion of these contracts or this have anything even trying.
The district court dismissed the action. The appeal by the applicant is unsuccessful.
With the approved by the Court of Appeal the applicants revision-rin pursued their last applications submitted further.
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Reasons for the Decision:
The revision of the applicant is unfounded.
I.
The Court of Appeal points out in essence, the applicant had we-the one to have access to such competitive behavior of the Be-complained after termination of the agency relationship nor did they egg nen appropriate injunctive relief. The alternative erho-bene interim declaratory action is unfounded. For a nachvertragli-ches-competition clause had not been validly agreed. The agreement falling fortune gene consultant contract agreement on a post-competition prohibition is for betting undue deprivation of contract Spart-ners, in particular for breach of the principle of transparency, ineffective.
The Financial Advisor Treaty and the matters regulated nachver-contractual non-competition clause if it were not disputed by General Ge trading conditions of the applicant within the meaning of §§ 305 ff. BGB, these defendants have asked the. For a negotiation of agreements (§ 305 Abs. 1 Set 3 BGB) had not put forward or otherwise apparent.
The by the parties under No. In. Abs. 2 the Financial Advisor Treaty agreement reached on a non-competition agreement was we gene undue deprivation of the contractor in accordance with § 307 Abs. 1 Set 1 BGB ineffective.
The control of a non-competition agreement without equal-term agreement of the statutory waiting allowance (§ 90a Abs. 1 Set 3 HGB) take into account the interests of the contractor
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not in the appropriate manner, but bring only the interest of the user to bear. Outside the scope of the provisions of §§ 305 ff. BGB speak some evidence, that a post-competitive werbsverbot must keep ent-no control over the exact amount of waiting allowance, to be effective and binding, because the sales representatives – unlike the Handlungsgehilfen (§ 74 HGB) – the agreement of a Karen-cent compensation (§ 90a HGB) according to the law just was not a prerequisite for liability of a non-competition agreement. In An-scope of §§ 305 ff. BGB APPLYING however to protect the usually weaker party of the user stricter requirements than under the §§ 134, 138 BGB. Measured against these increased demands put this agreement a postcontractual-compete bots without simultaneous agreement a concrete waiting allowance an unreasonable disadvantage of the contract partner is.
An invalidate the non-competition agreement leading hy-unreasonable disadvantage lies also for infringement action against the requirement of transparency. This commandment was violated in the present case, because the after-contractual non-competition clause is not sufficiently clear, understand and be-true is passed. Violation lie before therefore, because the course of trade-the legal representatives in accordance with § 90a HGB will not sufficiently performed clearly in mind as a contractual partner of the user. The principle of transparency was also therefore violated, because the commercial agent by the regulation in No.. In. Abs. 2 the Financial Advisor Treaty shall be prohibited for a period of two years after termination of the contract, Vermögensbera-ter, poach other employees or customers of the applicant, without going thereby made sufficiently clear, whether the post-contractual competi-werbsverbot EXTEND only to such persons, at the time the contract period Financial Advisor, other employees or customers had been the applicant-
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in, or whether it also covers such persons, the first after the departure of the contractor were ge-been in the applicant for their employees or customers. A clear statement would not have taken so far in the contract. Therefore be forth-out of the text of the contract for the contractual partner of the not clear, which group of people under the case the post-contractual competition ban betting, So how far rich compete obligation.
In this regard, can be left open, whether the right to information by meeting in accordance with § 362 Abs. 1 BGB had lapsed. Even the application festzu sites, that the originally raised in the application made Unterlas-required rate, the had done by timing, to 30. September 2013 was entitled, unfounded.
Although the alternative, asked interim declaration sought is admissible, However unfounded. For claims for damages for breach of the non-competition agreement not existed, since there was no its more-emergence Samer.
II.
This keeps the legal scrutiny as a result stand. Rightly so, the Court of Appeal has accepted, that the applicant's claims, which are based on all the post-contractual ban on poaching of customers, because of its ineffectiveness are unfounded.
1. The findings of the court, that it is contested by the applicant ERAL-ne terms with the loading regulations of the Financial Advisor Contract including the REG-th in post-contractual non-solicitation and that a negotiating Vereinba-
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ments within the meaning of § 305 Abs. 1 Set 3 BGB adduced no, or else it can be seen, be accepted by the parties. Revision legally be-achtliche error of law can not be seen so far.
2. As a result, the Court of Appeal rightly adopted, that determination “The Financial Advisor is committed, it for a period of two years after termination of the agency relationship to unterlas-sen, poach the company ... customer or this ... even to versu-chen” to inappropriate deprivation of the defendant as a contract partner of the applicant is ineffective.
a) Es kann dahinstehen, whether this provision, as the Court of Appeal has accepted, already because of the lack of agreement on a konkre th waiting allowance according to § 307 Abs. 1 Set 1 BGB is ineffective, whether or equal to the commitment of the entrepreneur, the commercial agent for the duration of a restriction of competition within the meaning of § 90a para. 1 HGB to pay an equitable remuneration, follows directly from the law, § 90a Abs. 1 Set 3 HGB.
It is in any case in accordance with § 307 Abs. 1 Set 1 i.V.m. Set 2 BGB unwirk-sam, because they do not meet the requirements of transparency requirement, that is un-depending on applicable, whether the provision is also subject to any other aspect of content control (§ 307 Abs. 3 Set 2 BGB).
aa) Gemäß § 307 Abs. 1 Set 2 BGB may be an unreasonable disadvantage of the contractual partner, the Gemäß § 307 Abs. 1 Set 1 BGB has the invalidity of that provision in the result, also resulting from them-ben, that this is not clear and understandable. The transparency obligation-tet the user General Terms and Conditions, represent the normative content of a clause as clear and manageable. In addition, demands
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the derived from the transparency principle of legality, that Klau-sel reveals the economic disadvantages and burdens far, as may be required according to circumstances (st. Rspr.; vgl. only BGH, Judgment of 14. January 2014 – XI ZR 355/12, BGHZ 199, 355 Rn. 23 m.w.N.). The Ver-turner must describe the factual requirements and legal consequences as GE-nau, that there are no unjustified assessment leeway for him (vgl. BGH, Judgment of 29. April 2015 – VIII ZR 104/14, ZVertriebsR 2015, 243 Rn. 16; Judgment of 5. December 2012 – I ZR 23/11, IIC 2013, 375 Rn. 35 – Abuse of the distribution plan; Judgment of 6. December 2007 VII ZR 28/07, , A-RR 2008, 615 Rn. 12 m.w.N.). Remedy is in the Be-assessment of transparency of a contractual clause on the expectations and He-knowledgeable possibilities of an average contractual partner of USAGE-DERS the conclusion of the contract (BGH, Judgment of 23. February 2011 XII ZR 101/09, , A-RR 2011, 1144 Rn. 10 m.w.N.). Violations of the requirement of transparency does not comply with the customs and practices of trade (vgl. § 310 Abs. 1 Set 2 BGB) and therefore also lead to an entrepreneur for ineffectiveness form excessive Business conditions (BGH, Default judgment from 10. September 2014 – XII ZR 56/11, NJW 2014, 3722 Rn. 25; Judgment of 3. August 2011 – XII ZR 205/09, NJW 2012, 54 Rn. 16).
bb) Considering these principles, the determination is un-effective, because of it the range of non-solicitation, are entitled to also-A-River to the height of the commercial agent in whose observance adequate compensation (§ 90a Abs. 1 Set 3 HGB) hat, not be deduced suffi-accordingly clear and understandable, § 307 Abs. 1 Set 1 i.V.m. Set 2 BGB.
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The unspecified concretized ban on poaching of customers in No.. In. Abs. 2 is just like the mere agreement of unspecified konkreti-dized customer protection (vgl. Bauer/Diller, Competition clauses, 7. Ed, Rn. 265 m.w.N.; Thamm, BB 1995, 790, 792) not determined enough. Not only is for an average contractor the applicant also taking into account the non-solicitation-during the contract period in No.. In. Abs. 1 not sufficiently clear, whether with “Customers” within the meaning of No.. In. Abs. 2 all people are meant, the contracts have with partner companies of the applicant from-closed, or only those persons, Such contracts as a result of the commercial agent (Financial Advisor) have completed attributable to switching activity. In addition, that is not sufficiently clear, whether the ban on poaching of customers in No.. In. Abs. 2 extends to individuals, the only after the termination of the agency relationship, but have closed within the period of two years after termination of these agreements with partner companies of the applicant. In addition, for an average contractor the applicant does not sufficiently clear, whether the ban on poaching of customers only to a Ausspannung he-stretched, be made at the customer, prematurely terminate with partner companies of the applicants-rin existing contracts (vgl. the definition of “Ausspannung” in No.. 48, No.. 65 the competition policies of the insurance business [Stand: 1. September 2006], reprinted in Köhler / Bornkamm, UWG, 33. Ed, S. 2035 ff.), or whether the trade representatives (Financial Advisor) is also prohibited, people, which have already entered into an agreement with partner companies of the applicant, to provide additional more products, which have a counterpart in the product range of the applicant. Given these uncertainties regarding the ban reach the disadvantages and burdens gene for the average of the applicant are not sufficiently recognizable contractors. The ambiguities open to the applicant, it pos readily-
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would have been Lich, to concretize the ban range, unjustified assessment leeway in the enforcement and implementation of the Ver-bots, but also in the defense of any claims waiting allowance. This results in an unreasonable disadvantage to the defendant as Ver-contracting party of the applicant.
b) A validity preserving reduction of breach of the principle of transparency provision is not an option, since the requirement of transparency otherwise largely would be frustrated (vgl. BAG, NZA-RR 2009, 576 Rn. 18; vgl. BGH, Judgment of 5. More 2011 – VII ZR 181/10, NJW 2011, 1954 Rn. 35). From the judgment of the Federal Court 25. October 2012 VII ZR 56/11, BGHZ 195, 207, results contrary to what the Revi-sion not otherwise. The Federal Court in that judgment – bezüg-lich an individually negotiated noncompete (vgl. BGH, Judgment of 25. October 2012 – VII ZR 56/11, loc. 19 ff.) – decided, that when exceeded in § 90a para. 1 Set 2 HGB above time, local and / or objective boundaries takes place a reduction in the legally permissible gene content (vgl. BGH, Judgment of 25. October 2012 – VII ZR 56/11, loc. 31 ff.). To such an extension at a negotiated individually negotiated-compete clause is not in dispute.
c) An effective post-contractual ban on poaching of customers can not get out of questions by the applicant Form Determination No.. VIII. Abs. 6 Set 2 be deduced, which put the parties in the event of ineffective-ness of a provision its contractual relationship with a regime based on, the original determination in its economic aspect comes closest. Such severability clauses for breach ge-gen § 306 Abs. 2 BGB in accordance with § 307 Abs. 1 Set 1 BGB nichtig (vgl. BGH, Judgment of 26. March 2015 – VII ZR 92/14, BGHZ 204, 346 Rn. 45, to § 6 Abs. 2, § 9
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AGBG; Judgment of 8. More 2007 – KZR 14/04, NJW 2007, 3568 Rn. 24 KfzVertragshändler III; H. Schmidt in Ulm / Brandner / Hensen, Conditions law, 11. Ed, § 306 BGB Rn. 39).
d) A post-contractual ban on poaching of customers results – without prejudice not claim here made restrictions of competition relating to secrecy (z.B. § 90 HGB, § 17 UWG) – even from those pursuant to § 306 Abs. 2 BGB applicable to ineffectiveness of ERAL-conditions of business law.
§ 90a HGB statuiert only limits for post-contractual competition ban, which can be agreed within this framework. It is a sales representative, of any non-competition prohibition subject, after termination of the agency relationship basically free, the entrepreneur, for which he has worked so far, to make in the area of ​​Kon-kurrenz, where he has represented him previously (vgl. BGH, Judgment of 28. January 1993 – I ZR 294/90, NJW 1993, 1786, 1787, juris Rn. 18).
The gap left by the ineffectiveness of the provision can not be too close by a supplementary interpretation of the contract. Although tough-len to under § 306 Abs. 2 BGB inefficacy of general Ge trading conditions applicable legal provisions and the provi-sions of §§ 157, 133 BGB on the supplementary contract interpretation (vgl. BGH, Judgment of 26. March 2015 – VII ZR 92/14, BGHZ 204, 346 Rn. 46; Judgment of 28. October 2009 – VIII ZR 320/07, NJW 2010, 993 Rn. 44 m.w.N.). Can be caused by a unenforceability clause gap not filled by dispositive statutory law and provides a spare loose disappearance of Subject Author-fenden clause is not a proper solution, it must be examined, if found by a supplementary interpretation of the contract an interest just solution who-
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the can (vgl. BGH, Judgment of 15. July 2014 – VI ZR 452/13, NJW 2014, 3234 Rn. 14). This also applies, if a clause for breach of the principle of transparency is ineffective (vgl. BGH, Judgment of 12. October 2005 IV ZR 162/03, BGHZ 164, 297, 318, juris Rn. 49). However, a supplementary contract interpretation presupposes, that can find evidence, as the Parties have designed the contract, if they had been aware of the non-be-thought ineffectiveness of the clause. Come contrast different design options considered, without it can be seen, which have chosen the Parties, the courts are still entitled to a he-plementary contract interpretation neither able (vgl. BGH, Judgment of 1. October 2014 – VII ZR 344/13, BGHZ 202, 309 Rn. 24; Judgment of 26. October 2005 – VIII ZR 48/05, BGHZ 165, 12, 28, juris Rn. 37 m.w.N.).
So liegt der Fall hier. With the agreement of a post-contractual Ver-bots the solicitation of customers with a view to come to the scope of the prohibition different design options in chronological, local and representational aspects into consideration, the scope of the ban also affect the amount of the sales representatives (Financial Advisor) gegebe-appropriate accruing adequate compensation (§ 90a Abs. 1 Set 3 HGB) hat. It is not clear in these circumstances, which the Gestal-tung possibilities, the Parties would have chosen, If you like the Un-effectiveness of the ban on poaching of customers concerned provi-tion No.. In. Abs. 2 would have been aware.
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III.
The cost is based on § 97 Abs. 1 Code of Civil Procedure.
Eick Kartzke Jurgeleit
Graßnack Sacher
Lower courts:
LG Mosbach, Decision of 08.08.2014 – 3 The 13/13 -
OLG Karlsruhe, Decision of 17.04.2015 – 15 You 89/14 -

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