The action for compensation for loss of clientele was dismissed. Basic requirements for compensation are advantages with continuing effects for the principal, whereby he has to compensate the loss of commission of the agent. If operations have been stopped for months (and the parent company is insolvent), no such advantages persist. Against this background it was easy for the Austrian affiliate to prove that operations had been stopped due to objective reasons, whereby the agent was not entitled to compensation.
However claim for commissions may persist toward Austrian subsidiary also if the delivery has been carried out via the German parent company. According to legal rules, the risk of the impossibility to procure goods falls on the sphere of the Austrian affiliate, and therefore must be borne by the latter. By consequences the commercial agent is entitled to commission for his work (sec 9 (3) Austrian Act on Agency). Admittedly the accounting of commission is the principal’s responsibility.
Gustav Breiter, IDI country expert for Austria.