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In a recent landmark decision (OGH 4 Ob 8/25t), the Austrian Supreme Court once again rejected the analogous application of §24 of the Handelsvertretergesetz (Austrian Commercial Agents Act) to franchisees and authorised dealers. The decision confirms existing case law and clarifies that independent authorised dealers and franchisees are not comparable to commercial agents.
Specifically, the case concerned a plaintiff who, as a long-standing franchisee of the defendant, asserted a claim for compensation analogous to § 24 HVertG after the franchise agreement was terminated. The court of first instance dismissed the claim, and the court of appeal upheld this decision. Consequently, the plaintiff lodged an extraordinary appeal with the Supreme Court.
In its decision, the Austrian Supreme Court confirmed the rejection of an extraordinary appeal due to the absence of a legal issue of considerable importance pursuant to Austian Code of Civil Procedure. The decision deals with several important procedural and substantive legal aspects:
On the main substantive issue, the Supreme Court confirmed the assessment of the Court of Appeal that the plaintiff's legal status as a franchisee did not sufficiently correspond to the characteristics of a commercial agent to justify an analogous application of § 24 HVertG. The court referred to its established case law, according to which the circumstances for or against an analogy must be assessed within the framework of a flexible system of weighing up the circumstances.[1] § 24 HVertG is therefore only applicable by analogy to an authorised dealer if the terms of the contract are highly similar to the typical characteristics of a commercial agency agreement and that those predominate. [2]
A decisive factor against such analogous application was the lack of binding guidelines on pricing. [3] The defendant had only issued non-binding price recommendations, from which the plaintiff had largely deviated during the term of the contract. This factor clearly distinguishes the position of a franchise contract from a commercial agency agreement, in which the commercial agent is bound by the resale price specifications of its principal. [4] The Austrian Supreme Court therefore saw no reason to deviate from its previous case law.
Furthermore, the Austrian Supreme Court stressed that the EU regulations cited by the plaintiff do not generally prohibit vertical agreements that restrict the purchaser's freedom to set prices. In particular, these regulations allow for maximum prices obligation, which, however, did not play a decisive role in the present case. [5]
In case 4 Ob 8/25t, the Austrian Supreme Court once again confirmed its case law on the lack of analogy between commercial agents and authorised dealers. The decision makes it clear that the legal status of a franchisee or authorised dealer is only comparable to that of a commercial agent if the essential characteristics of a commercial agency agreement predominate. In particular, the lack of binding price specifications and the plaintiff's freedom to set prices is a decisive factor against such an analogy.
The ruling clarifies, that franchisees and authorised dealers do not fall within the scope of § 24 HVertG. The decision strengthens legal certainty for authorised dealer´s networks and franchise contracts by clearly defining the limits of an analogous application of the Austrian Commercial Agents Act in relation to compensation claims.
[1] RIS Justice RS0062580, most recently 4Ob8/25t.
[2] RIS-Justiz RS0062580.
[3] OGH 3 Ob 10/98m; 1 Ob 238/02k; 2 Ob 211/04z; 3 Ob 44/09f; 1 Ob 10/09s; 7 Ob 255/09i; 4 Ob 193/13f.
[4] Supreme Court 22 May 2025, 4 Ob 8/25t, JusGuide 2025/27/22705 (Supreme Court).
[5] Regulation (EC) No 2790/1999; Regulation (EU) No 330/2010; Regulation (EU) No 2022/720.
Please note: This blog is for general information purposes only and in no way constitutes legal advice from Binder Grösswang Rechtsanwälte GmbH. The blog cannot replace individual legal advice. Binder Grösswang Rechtsanwälte GmbH accepts no liability of any kind for the content and accuracy of the blog.