Implementing legislation
Federal Act of 11.2.93.
Proper notice
Unless the parties have agreed otherwise, termination is only permitted at the end of a calendar month.
Indemnity or compensation or both
Indemnity.
Calculation of indemnity/compensation
Capped at a maximum of the average annual gross commission earned by the agent during the last five years of the agency (or, if less than five years, over the duration of the agency) being the “Maximum Amount”. For the determination of the amount of the claim, the considerable advantages at the end of the contract remaining with the principal and the commission losses of the commercial agent must be estimated for the forecast period to be determined on the basis of empirical values from the past (the “Raw Compensation”). Both amounts, Maximum Amount and Raw Compensation, have to be compared; the commercial agent is entitled to the lower of both amounts.
Pre-termination commission
Yes.
Post-termination commission
Yes.
Back commission
Yes.
Restrictive Covenants
Implementing Legislation
Austrian Commercial Agent Act (11 February 1993), as amended by the Federal Law to amend the Commercial Agents Act, Federal Law Gazette I 2016/29.
1) Under Austrian law is it possible to have a restraint of trade clause operating during the agency agreement and, if so, is it subject to any qualifications?
A restraint of trade clause can be validly agreed upon between the commercial agent and the principal for the duration of the agency agreement. Moreover, according to respective jurisprudence of the Austrian Supreme Court even in the absence of a contractual restraint of trade clause, the commercial agent is obliged to abstain from the representation of other entrepreneurs who are in competition with the principal following the principle that the commercial agent is obliged to use best efforts to represent the interests of the principal.
2) Under Austrian law is it possible to have a restraint of trade clause operating following the termination or expiry of the agency agreement and, if so, is it subject to any qualifications?
According to Section 25 of the Commercial Agent Act, any restriction of the commercial agent in his business activities following termination of the agency agreement is inadmissible and void. The applicability of Section 25 of the Commercial Agent Act cannot be excluded by agreement.
1. sub-agents: how are sub-agents treated under your national law?
Under Austrian law, it is possible for a commercial agent to appoint sub-agents in order to fulfil his/her obligations under the (primary) commercial agency contract. The Commercial Agents Act applies without restriction also between the commercial agent and the sub-agent.
2. Retirement: is there a specific age that the agent must reach in order to retire from the agency and be able to make a claim under the provisions of your law which implement Article 18 (b) of the Agents Directive 86/653/EC?
The Austrian Commercial Agents Act solely states that the commercial agent can ordinarily terminate the contractual relationship due to “age”. However, there is no specific age according to which such termination rights are triggered. It is decisive whether due to the age of the commercial agent the ongoing fulfilment of his/her contractual obligations is bearable (in this regard, circumstances such as the extent of travel, the size of the territory and the number of customers and customer meetings may play a role). This is in principle indicated when the social security retirement age is reached. Therefore, the ordinary termination right requires an assessment of the circumstances of the individual case.
3. Retirement and corporate entity: if the agency is operated by one person who has decided to form a corporate entity which is to act as the agent, and that person is the sole shareholder/owner and sole director/manager of such entity and that person retired, would any protection under Articles 18(b) and 17 of the Directive be extended to that person despite the fact that such person operates his/her agency through a corporate entity?
In principle, legal persons or partnerships cannot terminate a commercial agency agreement on the basis of “age”. However, according to some legal writers in exceptional cases, the provisions for the ordinary termination and compensation should apply by way of analogy if such sole shareholder/manager leaves the company due to age.
agentlaw.co.uk wishes to thank BINDER GRÖSSWANG of Vienna for its involvement with this page. Last updated 07.02.2022.
