German Commercial Law

Commercial law concerns all the relations between business partners. The most important legal regulation in Germany is the commercial code (Handelsgesetzbuch – HGB). In every business negotiations, HGB applies. Many questions of interpretation are also solved and regulated by the statute law, commercial practice and trade customs.

German commercial law has been heavily influenced by Italian and French commercial law. In some cases it is important to co-work with company law, intellectual property law, securities law and banking and stock exchange law codes.

Commercial Law Firm Profile

Horak Attorneys at law are here to assist you and support you on every kind of commercial law business. Our team is composed of lawyers with different professional backgrounds and this is our richness. Our services are tailored to fit your needs. Our basic principle consists in professional expertise, excellent education, continuous vocational training and experience. Our individual traits throughout all our activities are defined by specialisation, expert knowledge in different branches and of well as creativity. Early consultations in legal matters will help you avoid future possible legal disputes.

We complement one another having in mind one goal: your success. Are you looking for a reliable partner to put your plans and ideas into action? Contact us to have one of our lawyers confidentially advise you. Personal contact is very important for us – the choice of means of communication is up to you. Your lawyer assists you constantly at any point of your road to success. Your goal is our goal.

Right of representation

Our lawyers are authorized to represent all courts (all local, state and higher regional courts as well as all federal courts with the exception of the BGH (Higher Regional Court). We also assist our clients before the European Court of Human Rights (ECtHR), the European Court of First Instance (ECJ), the European Court of Justice (ECJ) and many other national and international authorities and arbitration tribunals.

Commercial law issues:

Distribution Contracts and Commercial Law

The distribution and commercial rights within Germany or the EU as well as the import and export of goods, especially from third countries such as China, India, Turkey, Indonesia but also the USA, have an important role to play.

We offer the following legal services in distribution law to our clients:

  • Planning, design, testing and optimization of distribution contracts and systems;
  • Terms and condition;
  • Terms of purchase and delivery
  • Import and export delivery contracts
  • Framework agreements
  • Examination of all contractual and non-contractual claims (such as injunctive relief claims, commission claims, compensation claims in accordance with § 89bHGB, information claims, anti-trust claims for damages;
  • Enforcement of rights in case of breach of contract or breach of law by one of the partner:
  • Litigation for international and national cases,
  • Representation in international arbitration,
  • Enforcement
  • Enforcement of rights in case of contractual infringement
  • Defense against unjustified claims
  • Tactical advice and representation.

Commercial and distribution agent

Section §§84 to 92c of the German Commercial Code (HGB-Handelsgesetzbuch) regulates the rights and obligations of the commercial agent and the company he represents. According to §84 HGB, a commercial agent is the person entitled in representing an independent trader, mediating with other entrepreneurs or finalizing businesses on its behalf.

It is considered self-employed, someone able to freely determine his own activities and working hours, carrying his own entrepreneurial risks (thus not an “employee”). So-called trade representatives exists in all conceivable industries and sectors, regardless of the type of legal form (for instance also as OHG, KG or GmbH). The actual features of the activity and the commercial agent´s contracts are decisive for the existence of a commercial representative business. Following, the characteristics that should be fulfilled in order to be considered a commercial representative:

  • Permanent contractual relationships with the represented company;
  • Mediation/ Conclusion of transactions and customer care in the name and on behalf of the represented company;
  • Self-employed (own business, entrepreneurial risks, trade taxation etc.);
  • Free organization of activities and free determination of working hours (freedom from instructions);
  • Payment of remuneration without deduction of taxes and social security contributions.

The settlement of the commission has to be done monthly. The billing period can be extended to a maximum of three months.

International Commercial Law

International business not only means import or export of goods to other countries, this also means entering the legal area of another country, and this is not to underestimate.

Anyone who wants to avoid unpleasant surprises should arrange all contracts in the most legal way possible in advance.

Post-contractual restraint  

Under the preconditions of §§ 74 et seq. HGB, a non-competition clause is to be found in many agreements and can also be agreed for a certain time after termination of the contractual relationship. The regulations are not only applicable to commercial employees, but are also directly applicable under § 110 GewO for all other employees. They are not directly applicable for authorized organ members. Apart from formal requirements, the non-competition clause requires a compensation to be granted and a maximum of two years since termination of employment (section 74a (1) sentence 3 HGB). In the event that the conditions have not been met, often voidness of the clauses or a right of choice of the obligated party is considered.

Sales representatives law

The HGB also applies without restriction to sales agents: this means that who is legally recognized as sales representative has the right to appeal to the HGB. According to § 1 Abs. 1 HGB is salesman, who operates a trade. Connection point is therefore the business enterprise. The entry in the commercial register is irrelevant. Business enterprise is any independent, externally recognizable activity that is designed for durability and profit and that is not a “free profession”. According to the definition of § 84 I 2 HGB a person is self-employed if he is essentially able to arrange his activities freely and to determine his working hours. Excluded are only those companies whose operation does not require a commercial enterprise set up in a commercial manner (see § 1 (2)). The exact limit is not definable. Corporations are by virtue of their legal form salesmen. On the other hand, the liberal professions, scientific and artistic activities as well as agriculture and forestry are excluded. In addition to this commercial concept, which has been included since 1.1.1900 since the German Commercial Code, the so-called “company concept” exists in the Civil Code. This distinguishes companies and consumers.

Company Names law

The name of a company is the name of the salesman according to the commercial register.

According to § 18 HGB, the business name shall be suited to designate the merchant and shall have a distinctive character. The business name shall not contain any information which is apt to be misleading with respect to business circumstances that are of material relevance for the market groups concerned. In proceedings before the court of registration, the aptness to mislead shall be taken into consideration only if is apparent.

Business Correspondence law

Depending on the kind of company, different laws apply.  For instance, limited liability companies (GmbH) required all business letters to be addressed to a specific recipient and must indicate the company´s legal form and registered office, the court of registration at the place of the company´s registered office and the number under which the company has been entered in the Commercial Register, the directors and, if the company has established a supervisors board and the supervisory board has a chairperson, the chairperson of the supervisory board together with his family name and at least one given name written out in full (pursuant § 35a GmbH https://www.gesetze-im-internet.de/englisch_gmbhg/englisch_gmbhg.html#p01959 ).

Similar provisions are included into §80 AktG for public limited companies, § 125a HGB for open trading companies (and limited partnerships) and § 37a HGB for other traders. Invoices must contain, (according to § 14 I 1a UStG) the tax number of the performing of the national tax number of the performing entrepreneur be specified. It concerns the national tax number and not the so-called sales tax- identification number (VAT ID). The latter can be voluntarily registered at the Federal Finance Office in Saarlouis and serves VAT-free business transactions within the EU.

Commercial Law for Start-Ups

We recommend basic consultations on the appropriate way to form a company. Who wants to enter the trade-world, requires a trading license. This is obtained after completing a so-called business opening form Gewerbeeröffnungsbogen of the Public Order Office of the municipality or city in which the company is located. Then the local IHK communicate to the enforcement of the (compulsory) membership and announces the payment of the contributions. Anyone who employs staff must also join a professional association (BG). This usually addresses itself to the person concerned. In addition, the IHK, the municipalities, other authorities and many other institutions can offer funding opportunities for the concrete enterprise.

Transport law, Spedition law, and Warehousing law

The transport law includes the following areas: Land Freight Law, Air Freight Law, Rail Freight Law and Inland Navigation Law, Freight Forwarding, Warehousing and Logistics Law, Maritime Law. Also included are customs law, insurance law and international private law. In addition, general damage and insurance law as well as contract drafting and designation constitute the practically essential focus in the light of the aforementioned legal framework.