Is a commercial agent an employee?

LAG Hesse of 24 February 2025 - 10 Ta 299/24

If claims are asserted by a commercial agent in court, the question of court jurisdiction arises. A self-employed commercial agent is not an employee bound by instructions, meaning that the civil courts generally have jurisdiction. Nevertheless, pursuant to Section 5 (3) ArbGG, legal recourse to the labour courts is open to him if he can prove that he is acting as a single-company representative within the meaning of Section 92a HGB.

Facts of the case 

The plaintiff worked as an independent commercial agent for the defendant and brokered construction contracts for prefabricated houses. In addition to the commercial agency agreement, there was a super commission agreement. After the contractual relationship was terminated by the defendant, the plaintiff asserted claims for remuneration. He considered legal recourse to the labour courts to be admissible, as he classified himself as a single-company agent pursuant to Section 92a HGB. However, the Kassel Labour Court ruled that legal recourse to the labour courts was not open, as the plaintiff was not to be regarded as a single-company representative. The plaintiff lodged an immediate appeal against this decision.

Decision 

The Hesse Regional Labour Court dismissed the plaintiff's immediate appeal against the decision of the Kassel Labour Court and did not allow an appeal on points of law. It confirmed the decision of the labour court that legal recourse to the labour courts was not open. The plaintiff could not sufficiently demonstrate that he could not work for other companies due to the contractual obligations. The court found that the plaintiff was neither an employee nor a single-company representative within the meaning of Section 92a HGB. It stated that an industry-related non-competition clause was not sufficient for a commercial agent to be  a single-company agent by virtue of contract, as he could continue to work for entrepreneurs in other industries. Generalised and keyword-like descriptions of working hours and activities were not sufficient to prove an activity as a single-company representative by virtue of instructions.

Practical note 

In order to be able to legally assert claims before the labour courts as a commercial agent, the special jurisdiction of the labour courts must be established. Pursuant to Section 5 (3) ArbGG, this is the case if a commercial agent acts as a single-company agent and has not received more than EUR 1,000 per month in remuneration, including commission and reimbursement of expenses. However, the decisive factor here is that the commercial agent actually proves his status as a single-company agent within the meaning of Section 92a HGB. This requires a detailed explanation of the contractual and factual circumstances that rule out any activity for other companies. Generalised assertions about working hours and activities are not sufficient. It is advisable to provide concrete evidence and detailed descriptions of the work tasks and hours in order to fulfil the requirements of the burden of presentation and proof. Otherwise, there is a risk that legal recourse to the labour courts will not be opened and the claims will have to be asserted before the ordinary courts.