La défenderesse, une société autrichienne (mandant), conclut divers contrats d'agent commercial avec la demanderesse, une société italienne (mandataire). Les contrats, tous à durée indéterminée, concernaient des matériels et des pièces détachées dans l'industrie des matières plastiques. Bien que les parties aient entretenu de bonnes relations au début, celles-ci se dégradèrent à la suite de difficultés dans l'exécution liées à la détérioration des conditions du marché en Italie. La défenderesse résilia deux des contrats. La demanderesse réclama le paiement d'une indemnité et des commissions. La défenderesse rejeta ces demandes au motif que la demanderesse avait violé le contrat et mal évalué les affaires servant d'assiette au calcul de son droit à commission . En outre, elle prétendit que les parties avaient exclu les dispositions du droit autrichien relatives au contrat d'agence sur lesquelles la demanderesse avait fondé sa demande d'indemnité.

Droit applicable

'In the choice of law clause, the parties to the dispute agreed on Austrian law. However, they excluded the mandatory provisions applicable to Austrian domestic agents.

As a result, the applicability of Austrian law is fundamentally agreed. Contrary to the situation under German law for example, Austrian law contains no provisions which apply specifically to domestic agents. Since this notion is not found in Austrian law, one could assume that the restriction is meaningless and that Austrian law applies without restriction.

If, however, the use of this notion leads to the assumption that an analogy is being made with a rule existing under German law, then the measure for interpretation would be § 92c Article 1 of the German Commercial Code (HGB). This states all the provisions of the HGB relating to commercial agents to be non-mandatory, if the activity of the commercial agent is not to be exercised within the territory of the European Community. However this is not the case here. The activity is being exercised within the European Community, so that under German law no provisions which are mandatory with respect to domestic agents can be excluded. If this interpretation is adopted, then the compensation claim which is mandatory under Austrian law cannot be excluded.

From the facts of the case there is no indication that the contracting partners did not intend to apply any legal system at all to specific areas of their relationship. The second sentence of the choice of law clause is only intended to exclude application of the provisions specified therein. If one takes the view that on the basis of the first sentence it is first of all necessary to check whether such an exclusion is admissible according to Austrian law, and specifically according to § 27 of the Austrian Commercial Agency Act (HVertrG), then one finds that, of the mandatory provisions which are of relevance here, the rule relating to the compensation claim in § 24 HVertrG cannot be excluded to the disadvantage of the commercial agent (see for example Munich Regional Appeal Court 26.9.1995 Recht der Internationalen Wirtschaft 1996, 155 in relation to a comparable case).

If one does not take this view, then the initial conclusion must be that the corresponding mandatory provisions of the Austrian law relating to commercial agents have been excluded by the second sentence of the choice of law clause. Since there has therefore been no choice of law for this area, the law applicable to it is to be ascertained pursuant to the provisions of the Austrian Private International Law Act (IPRG). According to prevailing opinion, Italian law then applies (Liebscher/Heinrich, Vertriebsverträge, 53 with references).

Italian law relating to commercial agents has been adapted to take account of the relevant EC Directive. Art. 1751 of the Italian Civil Code now reads as follows . . .

The minor textual divergences from § 24 HVertrG are irrelevant in the case in question and are moreover due to an inaccurate transposition of the EC Directive (Art. 17) (Baldi in: Westphalen, Handbuch des Handelsvertreterrechts in EU-Staaten und der Schweiz, at no.129 in relation to commercial agency law in Italy; Detzer/Zwernemann in Ausländisches Recht der Handelsvertreter und Vertragshändler, point 6.1 in relation to Italy).

According to Art 6(1) of the statutory decree 303/91, this rule is also applicable with effect from 1.1.1994 to contracts already in effect at 1.1.1990. The unclear points existing in relation to this provision are also not relevant in the case in question (Baldi, at nos. 143, 144).

Thus the rules relating to the compensation claim under Italian and Austrian law are in any event identical. It is therefore irrelevant, with respect to the question of the compensation claim, whether Austrian or Italian law is applied. Under neither legal system may the compensation claim be excluded to the disadvantage of the commercial agent. No fact could be ascertained which justifies a connection with a third legal system.

With respect to the other legal questions which are of relevance in this case, it must be stated that they all relate to non-mandatory law, so that, according to the choice of law clause, Austrian law is applicable.'

Droit de la demanderesse à une indemnité

'According to the facts of the case, all the customers covered by the expert's opinion must be treated as newly introduced customers. The Defendant has made no assertions and offered no evidence to indicate that specific companies included in this list were not newly introduced by the Claimant.

It is also clear from the findings that the Defendant is unquestionably still doing business with these customers after the end of the commercial agency relationship in question and is therefore in a position to derive benefits.

To allow a compensation claim is fair, for no other reason than the fact that according to the facts of the case, the Claimant has provided valuable services for the Defendant.

The ground for exclusion set out in § 24(3)(1) HVertrG does not exist, since it was the Defendant who served notice.

The ground for exclusion set out in § 24(3)(3) HVertrG does not exist either, since according to the facts of the case, the commercial agency agreement was not assigned.

It remains to be examined whether the ground for exclusion set out in § 24(3)(2) HVertrG is met. This presupposes fault on the part of the commercial agent. Although there was disagreement between the parties to the dispute over the performance of the commercial agency agreement, no serious ground for which the commercial agent can be blamed could be ascertained. The facts of the case clearly suggest that the reason for the termination was rather that the Defendant wished the Claimant's corporate structure to be rationalized, and not that the Defendant was in the final analysis unsatisfied with the Claimant's actual services.

Lastly, it is necessary to examine whether the Claimant waived its claim to compensation as regards the period prior to the entry into effect of the most recently valid commercial agency agreements . . . Since each of the subsequent agreements was concluded while the respective preceding commercial agency agreement was in force, such a waiver would not in any event have been effective (§ 27(1) HVertrG).'

Montant de l'indemnité

'According to § 24(4) HvertG, unless a higher amount is agreed, the compensation claim amounts at most to average annual remuneration based on the past five years. If the contractual relationship lasted less than five years, it is based on the average for the entire length of the contract.

The Claimant's agency activity commenced prior to 1.10.1989 and continued without interruption until 30.9.1994, with four virtually identically worded agreements being concluded between the parties to the dispute during this period, without formal termination of the agreement which had previously been concluded for an unlimited term in each case.

As already mentioned, the compensation claim has not been waived. The period of assessment to be applied is therefore the legally maximum period of 5 years.

It is also not evident from the facts of the case that the Claimant has already received any payment by way of compensation. The commission rate is moreover not so high that it could be considered to have been intended also to cover any compensation claim.

According to § 24(1) HVertrG, appropriate compensation may be claimed. The facts of the case do not give any indication as to why the compensation claim should be less than the maximum amount. In the event of any doubt, the starting point must be the legal maximum amount (Jabornegg, HVG 509). However, this may be reduced in exceptional circumstances, as when the expected benefits are lower than this maximum amount. Since the facts of the case do not give any indication justifying a reduction in the compensation claim, it is the maximum amount that applies. . . .'