However, in most legal systems worldwide, as well as under Italian law, no such claim is provided for authorised dealers. For this and other reasons, foreign companies tend to impose their own foreign law on German authorised dealers. The application of foreign law generally avoids the payment of compensation under German law.

 

The practice of agreeing to apply foreign law has not been challenged by the courts to date. However, there is debate in the literature as to whether this constitutes an inadmissible circumvention of the mandatory German compensation claim if the position of the authorised dealer is similar to that of a commercial agent.

 

In the case of a commercial agency relationship, such attempts have already been declared inadmissible by the European Court of Justice (ECJ). In the Ingmar decision (C-381/98 of 9 November 2000) and later in the Unamar decision (C-184/12 of 17 October 2013) it was clarified that the commercial agent's claim for compensation constitutes an internationally binding norm (interference norm) and may not be circumvented by choice of law or jurisdiction agreements. It may not be circumvented by choice of law or jurisdiction agreements. Commercial agents can therefore bring legal action in the EU despite agreed foreign law and invoke European law.

 

In a preliminary ruling dated 1 July 2025 (Ref.: 2 U 37/22), the Berlin Court of Appeal dealt with a case that did not involve a authorised dealer, but a service agent. A service agent does not broker or conclude transactions involving goods. The parties had contractually agreed to apply Delaware law, which does not recognise a right to compensation. In the court's opinion, this case must be assessed differently from the cases covered by the Ingmar decision, as the commercial agency relationship for the distribution of services does not fall within the scope of the EU Commercial Agency Directive, which is limited to the distribution of goods. For this reason, the commercial agent cannot invoke a higher level of European protection in this case. Only the commercial agent's right to compensation for the distribution of goods can be interpreted as a European intervention norm within the meaning of Article 9 of the Rome I Regulation.

 

Since authorised dealers are not covered by the EU Commercial Agents Directive, foreign companies can in principle continue to effectively agree on foreign law and a foreign place of jurisdiction. The compensation claim under Section 89b of the German Commercial Code can  therefore still be waived for distributors in an international context.