Federal Act of 11.2.93.
Indemnity or compensation or both
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).
Austrian Commercial Agent Act (11 February 1993).
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 between the commercial agent and the principal if its applicability is limited to the duration of the agency agreement. Moreover, even if no restraint of trade provisions are expressly agreed between the principal and the commercial agent, the commercial agent is obliged to abstain from the representation of other principals who are in competition with his principal due to the general rule that the commercial agent is obliged to use his best efforts to represent the interests of his principal (Austria Supreme Court 11 November 1998, 3 Ob 244/98y).
The commercial agent can also be obliged to be active for one principal exclusively. However, such exclusivity can (in certain circumstances) indicate that the commercial agent is treated as an employee of the principal under labour, tax and social security laws.
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 void. The invalidity of a restraint of trade clause does not, in general, affect the validity of the remaining stipulations of the agency agreement. The applicability of Section 25 of the Commercial Agent Act cannot be excluded by agreement made between the principal and the commercial agent.
agentlaw.co.uk wishes to thank Haarmann Hügel Rechtsanwälte OEG of Vienna for its contribution to this page.