Ausgleichsanspruch eines Tankstellenhalters

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Zum Ausschluss durch fristlose Kündigung wegen Gewährung von Stationskrediten und zur Bestimmung des Anteils der Stammkunden einer Tankstelle

 

Der Bundesgerichtshof hat gestern entschieden, dass ein Mineralölunternehmen das Vertragsverhältnis mit einem Tankstellenhalter, der als Handelsvertreter Kraftstoff entgegen einer ihm kurz zuvor erteilten Weisung auf Kredit verkauft hat, nicht ohne vorherige Abmahnung aus wichtigem Grund kündigen kann, wenn das Mineralölunternehmen die Kreditgewährung über Jahre geduldet und gefördert hat. Im Hinblick auf den Ausgleichsanspruch des Tankstellenhalters nach Beendigung des Vertrages (§ 89b HGB) hat der Bundesgerichtshof seine Rechtsprechung bestätigt, dass die für die Berechnung der Ausgleichszahlung maßgebliche Stammkundeneigenschaft bei Tankstellenkunden im Allgemeinen dann zu bejahen ist, wenn diese mindestens vier Mal im Jahr bei der Tankstelle getankt haben.

 

In dem Verfahren stritten die Parteien um Ansprüche nach Beendigung eines Tankstellen-Verwalter-Vertrages. Der Kläger hatte von 1992 bis 2003 eine Tankstelle des beklagten Mineralölunternehmens betrieben. Nach den Verträgen der Parteien war es dem Kläger untersagt, Treibstoff auf Stationskredit zu verkaufen. Er gestattete es jedoch einem Teil seiner Kunden, zum Beispiel Speditionen oder Taxiunternehmen, Kraftstoff auf Kredit zu beziehen. Im April 2003 wies die Beklagte den Kläger an, diese Praxis ab dem 1. Mai 2003 einzustellen. Nachdem der Kläger im Mai 2003 (in erheblich vermindertem Umfang) weiterhin auf Kredit verkauft hatte, erklärte die Beklagte im Juni 2003 die außerordentliche Kündigung des Vertragsverhältnisses und begründete dies mit der Unterdeckung des Agenturkontos des Klägers. Die Unterdeckung beruhte darauf, dass der Kläger die kreditierten Kaufpreise nicht vollständig auf das Agenturkonto eingezahlt hatte.

 

Der Kläger hat die Kündigung als unberechtigt angesehen. Mit der Klage hat er unter anderem einen Anspruch auf Zahlung von Handelsvertreterausgleich gemäß § 89b HGB geltend gemacht. Das Landgericht hat die Klage insoweit abgewiesen. Die Berufung des Klägers war erfolgreich. Das Kammergericht hat die Beklagte unter anderem verurteilt, an den Kläger 11.000 € als Handelsvertreterausgleich zu zahlen.

 

Die dagegen gerichtete Revision der Beklagten hatte keinen Erfolg. Der unter anderem für das Recht der Handelsvertreter zuständige VIII. Zivilsenat des Bundesgerichtshofs hat entschieden, dass der dem Kläger als Handelsvertreter im Sinne des § 84 Abs. 1 HGB nach Vertragsbeendigung zustehende Ausgleichsanspruch nicht gemäß § 89b Abs. 3 Nr. 2 HGB ausgeschlossen ist. Der nach dieser Vorschrift erforderliche wichtige Grund zur außerordentlichen Kündigung des Tankstellen-Verwalter-Vertrages lag trotz der Stationskreditverkäufe und der Unterdeckung des Agenturkontos nicht vor. Der Bundesgerichtshof hat offen gelassen, ob die Klauseln, nach denen der Kläger Kraft- und Schmierstoffe nur gegen Barzahlung und bestimmte, von der Beklagten genehmigte Zahlungsmittel (u. a. EC-Karten, bestimmte Kreditkarten) verkaufen durfte und die Entgelte unmittelbar auf ein Konto der Beklagten einzahlen musste, einer AGB-rechtlichen Inhaltskontrolle standhielten. Nach den Feststellungen des Berufungsgerichts hatte die Beklagte jedenfalls abweichend davon Kreditverkäufe an Stationskunden jahrelang geduldet und aus geschäftlichen Gründen gefördert. Deshalb war die auf der Gewährung von Stationskrediten beruhende Unterdeckung des Agenturkontos dem Kläger nicht vorzuwerfen. Die fortdauernde Gewährung von Krediten im Mai 2003 konnte die fristlose Kündigung nicht rechtfertigen, weil die Beklagte den Kläger deshalb zunächst hätte abmahnen müssen.

 

Im Hinblick auf die Berechung des Ausgleichsanspruchs gemäß § 89b HGB hat der VIII. Zivilsenat seine Rechtsprechung bestätigt, dass als Stammkunden eines Tankstellenhalters im Allgemeinen die Kunden angesehen werden können, die mindestens vier Mal im Jahr – also durchschnittlich wenigstens ein Mal pro Quartal – bei ihm getankt haben (Urteil vom 12. September 2007 – VIII ZR 194/06, Pressemitteilung Nr. 126/2007). Dabei setzt die Stammkundeneigenschaft nicht voraus, dass der Mehrfachkunde tatsächlich mindestens einmal im Quartal an der Station getankt hat. Beim vierten Tanken innerhalb eines Jahres ist – unabhängig davon, ob dies in gleichmäßigen Abständen geschieht oder vier Tankvorgänge im engen zeitlichen Zusammenhang zu verzeichnen sind – in der Regel die Annahme berechtigt, dass der Kunde die Tankstelle nicht nur zufällig, sondern gezielt zum wiederholten Mal aufgesucht hat und dementsprechend eine Bindung des Kunden an die Tankstelle besteht.

 

Urteil vom 17. Dezember 2008 – VIII ZR 159/07 LG Berlin – Urteil vom 30. März 2005 – 101 O 20/04 KG Berlin – Urteil vom 21. Mai 2007 – 23 U 87/05 Karlsruhe, den 17. Dezember 2008

 

Pressestelle des Bundesgerichtshofs

76125 Karlsruhe

Telefon (0721) 159-5013

Telefax (0721) 159-5501

 

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