The Agency's request of adequate compensation has begun to be accepted in Turkish legal system in 1996 with a principal decision of Court of Appeal, and additionally the related provision was legislated in the new Turkish Commercial Code dated 2012. Article 122 of the Turkish Commercial Code is regulated in accordance with Article 17 of Directive 86/653 EEC, which parallels with the Article 89/b of the German Commercial Code and Article 418 of the Swiss Code of Obligations. Consequently, the way of calculating the adequate compensation and its procedures will be examined by taking into consideration the case law established in the framework of governing laws.
The request for adequate compensation of the Agency is recognized by the Turkish case law. In 1996, the Court of Appeal has ruled that the right of termination of the agency agreement was awarded at the time of its own term and that it would be entitled to a premium from the on going agency contracts. The extension of the agency contract by an addendum is not considered as a new contract, but the existing contract is adapted to the conditions of the day. Due consideration of the Article 418 of the Swiss Code of Obligations, the Court of Appeals have clearly stated that, in the event of any termination of the agency relationship without a just cause by the client, an appropriate compensation for the agency would be justi- fied and that the legal gap was filled in consideration of the Article 1 of the Turkish Civil Code.
Article 122 of the Turkish Commercial Code did not introduce a new legal institution, but has clearly regulated for the first time. Article 122 of the Code regulates the request for adequate compensation, which contained in the EU Directive in the law of all EU Member States for the same reasons as the provi- sions of Germany and Switzerland on the basis of this Directive. The purpose and qualification of this claim is however controversial. In view of the German doctrine, it is argued that the mass of customers, connect- ed to the business continually, earns the business, it does not rely on agency assistance because it is the contribution of the agency to the business. Since the idea is based on equity, it cannot be considered as only financial right. According to another view, demand protects the agent from the adverse consequenc- es of termination.
The request for adequate compensation has been granted the right to claim an appropriate compensation for the agency, in return for the benefits that the client provided by the agency or the client continues to benefit from the customer after the conclusion of the contract. In order to qualify this compensation or scholarship, the provisions specified in the new regulation were required at some point. These conditions can be enumerated in the light of law as follows;
- Primarily, the contractual relationship arising from the agency between the parties must be However, if the contractual relationship between the parties is a termination with just cause of the agency or in case of the client’ termination without a just cause in order to be able to request a settlement. In this regard, there should not be an infringement of the agency.
- The agency’s clients are able to provide new customers and they need to create a significant impact on positive basis after the termination of the
- It is necessary that the loss of wage should have occur for the agency which is parallel to the fact that it would have received if the agency relationship between them had been maintained due to the work done by the client, or by the client, who had been acquired by For this reason, if the contract is paid for new customers despite the end of the contract, the agency will not be entitled to demand the agency request for adequate compensation since it will not be charged.
- The payment of this compensation must be justified when the conditions of the specific event are taken into It defines this condition as the act of the lawmaker’s agency to operate and to promote the product and create images and take part in the competition market. The fact that the product or the firm is a well-known brand does not effect or remove the existence the agency’s efforts and does not constitute an obstacle to the existence of equity.
- However, this compensation, that will be claimed, can not exceed the average of the annual commission and other fees received by the agency more than last five In addition, if the contractual relationship lasted less than five years, the average value for the continuation of the activity would be taken into account.
- The right for adequate compensation can not be waived in Any kind of arrangement in contracts, which is contrary to the definite provisions of the law, is null and void. However, it is stated that the waiver of the agent agreement can be accepted as valid only after the execution of the agent contract in some cases.
- The right of adequate compensation shall be claimed within 1 year from the end of the contractual For the termination of an indefinite agency contract, the parties must give notice of termina- tion three months in advance. For this reason, the right of demand will expire after 1 year from the end of the 3 months notice period. It is well known that one year's worth of German doctrine has a period of prescrip- tion. Since the provision is based on justice and equity, the agency does not have such issues and is considered to be contrary to the purpose of foreseeing the provision of delay for a period exceeding one year in order to put forward the request.
- To the extent that equity is appropriate, it is made possible in the light of the open provision of the require- ment that adequate compensation can be requested even in cases of permanent debt obligations that give the same monopoly right as single This provision was also introduced by the legislator for the purpose of removing the disparities in terms of equalization between permanent business associations such as agency contracts and single seller, and thus a fair order, in order to implement the termination cases of permanent debt obligations such as solicitation claims. When the similarity between the agency and the exclusive distributor’s interests against the client or the provider is taken into account, it would be appropriate to pay the exclusive distributorship agreement to the adequate compensation at the end of the exclusive distributor agreement.
In any case, it is possible to decide whether or not to receive a further benefit in lieu of claiming a settlement in the convention can also be decided on the basis of equity control. It has also been clearly
stated that changes in the interests of the agency howsoever can be made. Therefore, in a different case where the agency has appropriately received compensation for the right to act, it should be possible to designate this compensation instead ofa willingness to compensate.
In the second paragraph of Article 122, the system to be monitored in the calculation of the amount of compensation is specified. It appears that the system is in line with the regulations in Germany, Switzer- land and the EU Directive. However, as stated, this system is not the only valid system; The parties will be able to decide on other account systems as long as the agency is not against it. In general, in the context of the arrangement in the article, the amount of compensation is considered to be the result of the following steps during the calculation;
- Calculation of client benefits
- Calculation of the loss of the agent
- Determining the amount of this benefits and loss
- Equity control for the amount determined
In cases where the Agency expressly clarifies that warrants or any other guarantees are held liable, it shall be responsible for the payments and other debts of the relevant people included. In this sense, it is possible that the agency will be held responsible, as it will impose the debts of the customers. Del credere is called liability for the agency to guarantee the third parties to pay their debts. In this case, agency is obliged according to 421/2 article of Turkish Obligation Code, that there is a right to a separate fee.
As a result, the client will be entitled to claim a fair compensation in respect of the portfolio, which generates and the expense that it incurs. This situation has been arranged in accordance with the EU Directive and the laws of the country, and a significant legal gap has been filled. However, since there is any clear provision regarding the calculation method, the confusion still keeps its existence in practice. It would have been useful in terms of implementation to clarify the calculation method, in particular by making amendments under the origin of Swiss law, and to determine the extent to which the agency will not be entitled to compensation under the EU directive.