Commission disputes follow a familiar script: the plan is „adjusted” mid-year after a big quarter, a landmark deal is retroactively capped as a „windfall”, and when you leave, the pipeline you built pays out to someone else. What most sales employees in Germany don’t know: the commercial code gives you statutory commission rights — including the Buchauszug under § 87c HGB, a discovery tool that forces the employer to open its books deal by deal. Applied correctly, these rules turn „trust our comp statement” into a verifiable, enforceable account.
The legal frame: §§ 87 ff. HGB — also for employees
The commission rules of the Handelsgesetzbuch were written for self-employed commercial agents, but they reach employees — via § 65 HGB and by analogy alongside the contract. The pillars:
- § 87 HGB — entitlement: you earn commission on deals concluded during the employment that are attributable to your activity (and, in a defined territory or customer-list role, on territory deals generally).
- § 87a HGB — due date: commission falls due, at the latest, when the customer performs (pays). If the deal fails for reasons the employer is responsible for, the commission claim survives.
- § 87c HGB — accounting: the employer must render a proper commission statement (Abrechnung) regularly, and on request provide a Buchauszug plus, in case of doubt, book inspection.
Where the plan is silent, contradictory or abusive, the statutory frame and AGB control (§§ 305 ff. BGB) decide.
The Buchauszug: your discovery weapon
Most commission underpayment is invisible: you see your statement, not the underlying deals. The Buchauszug under § 87c(2) HGB reverses that. On request, the employer must produce a structured extract of all commission-relevant business in the period — typically including customer, dates, contract values, invoicing, payments received and cancellations with reasons. The right cannot be waived in advance (§ 87c(5) HGB).
It is enforced by a Stufenklage (staged action): stage one compels the Buchauszug, stage two the accounting, stage three payment of whatever the extract reveals — you don’t need to know the exact amount when you file. In our experience, the mere prospect of producing a complete extract moves employers toward settlement: it is laborious and tends to reveal more than the dispute that triggered it.
Mid-year plan changes: usually not unilateral
The commission plan is part of your remuneration. An employer cannot simply announce new rates, higher quotas or a different split mid-year:
- Contract change requires consent — a Änderungsvertrag — or a valid, narrowly drafted reservation. Blanket „the company may amend the plan at any time” clauses generally fail AGB control, because remuneration is the core of the exchange.
- Discretionary elements must be exercised according to billiges Ermessen (§ 315 BGB) — reviewable by the labor courts, not a free pass.
- Targets must be set in time. Where the employer is obliged to set targets for a period and fails to do so, the BAG awards damages — as a rule on the basis of 100% target achievement.
- Where a works council exists, remuneration-system changes typically require its involvement.
If a „plan update” landed in your inbox with a request to click accept, do not click before advice — continuing to work does not automatically mean consent, but signatures do. The same logic governs unilateral changes to other variable pay; see discretionary bonuses.
Windfalls, retroactive caps and quota games
The classic conflict: you close the biggest deal of the year, and the employer discovers the plan „never intended” such payouts.
- Retroactive capping of a closed deal is, absent a clear and valid cap in the plan text, simply non-payment of earned remuneration. A cap invented after the fact does not bind you.
- Pre-existing cap clauses are possible but must be transparent; hidden or contradictory caps fail § 307 BGB.
- „Review of extraordinary deals” clauses granting open-ended discretion over earned commission are subject to § 315 BGB control — discretion exercised to your disadvantage after closing rarely survives scrutiny.
- Quota and territory manipulation — moving a closing customer to a „house account”, reassigning your territory days before signature, backdating a split — engages § 162 BGB: whoever prevents a claim’s condition in bad faith is treated as if it had occurred. The commission is owed as if the manipulation had not happened.
Commission on deals that close after you leave
Two separate concepts protect the departing salesperson:
- Überhangprovision: deals concluded during your employment but executed (invoiced/paid) afterwards — the entitlement arose while you were employed; payment simply falls due later (§ 87a HGB) and must still be accounted for after exit.
- Nachprovision (§ 87(3) HGB): deals concluded after the employment ends, where you predominantly initiated or prepared them and conclusion follows within a reasonable time — this catches the pipeline you built.
Comp plans frequently purport to exclude all post-exit commission („employment on payout date required”). Such clauses are heavily restricted: for earned commission on concluded deals they amount to a forfeiture of vested remuneration, which the case law does not accept, and even for Nachprovision an exclusion in standard terms faces serious AGB objections. Never write off your pipeline just because the plan says so — the parallel case law on bonuses payable after exit points the same direction; see bonus after termination.
Before you exit: secure the record
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Build your own deal list — lawfully
From memory and your own statements and payslips: customer, deal stage, expected value, your role. Do not bulk-export CRM databases or forward confidential files to private accounts — that creates a counter-attack.
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Demand a proper Provisionsabrechnung
A dated text-form request for full accounting of all open periods, including Überhang deals.
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Request the Buchauszug under § 87c HGB
Specify the period — typically the unexpired three years. Refusal or an obviously incomplete extract sets up the Stufenklage.
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Mind the Ausschlussfrist
Contractual forfeiture clauses typically give you three months from due date per commission period. Late-paying deals create rolling deadlines — calendar each one.
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Stufenklage at the Arbeitsgericht
Buchauszug, then accounting, then payment — one action, three stages, no need to know the final number when filing.
Worked example
Account executive at a Düsseldorf software company: base €70,000, variable target €70,000, commission essentially 8% of first-year contract value. The employer terminates for operational reasons effective 30 September. Two deals the AE sourced and negotiated — combined value €400,000 — are signed by the customers in October and November. The employer pays nothing: „commission requires active employment at booking”.
- Nachprovision analysis: both deals were predominantly initiated by the AE and closed within weeks of exit — § 87(3) HGB (applied to the employment relationship) supports 8% × €400,000 = €32,000.
- Buchauszug: the extract for the current and prior year reveals two Q1/Q2 deals booked to a „house account” after territory „realignment” and one uncredited upsell — underpayment of €9,500.
- Leverage: the commission claims run alongside the Kündigungsschutzklage against the dismissal — a combination that regularly improves both outcomes.
Result in settlement: €38,000 gross on the commission side plus severance on the dismissal side. Without the Buchauszug, the €9,500 would never have surfaced; without the § 87(3) analysis, the pipeline would have paid the employer.
Frequently asked questions
I’m an employee, not a self-employed agent. Do the HGB commission rules really apply to me?
Yes in substance. § 65 HGB imports the commission provisions for commercial employees, and courts apply the core rules — entitlement, due date, accounting, Buchauszug — to employed sales staff generally. Your comp plan operates within that frame, not above it.
My employer changed the commission plan mid-year and my payout dropped. Do I have to accept it?
Not unilaterally. Remuneration changes need your consent or a valid, narrow reservation clause — blanket amendment rights over commission generally fail AGB control. If you didn’t sign, the old plan governs; if you signed under pressure, have it reviewed quickly.
What exactly does a Buchauszug contain — and what does it cost me to get one?
A structured, complete extract of all commission-relevant transactions of the period: customer, dates, values, invoicing, payments, cancellations with reasons. It is asserted by demand letter and, if necessary, enforced as stage one of the Stufenklage. On lawyer costs and funding, see our costs page.
A huge deal closed and the employer wants to cap my commission afterwards as a „windfall”. Allowed?
A cap that wasn’t validly in the plan when the deal closed does not bind you — that is earned remuneration. Even pre-existing „extraordinary deal review” clauses only permit decisions within billiges Ermessen (§ 315 BGB), which courts review. Retroactive windfall capping loses more often than it wins.
Which deadlines kill commission claims?
Two layers: contractual forfeiture clauses (often three months from the due date of each commission period — check whether a second stage requires filing suit) and the three-year limitation. Commission falls due deal by deal, so deadlines roll continuously — when in doubt, assert everything open in one text-form letter now.