A commercial agency agreement under Dutch law (agentuurovereenkomst) is a contract in which a self-employed agent acts as an intermediary to bring about contracts for a principal, for remuneration, without being an employee. Dutch law gives this contract a largely mandatory statutory regime in articles 7:428 and following of the Dutch Civil Code.
This page explains what the agreement must contain, how commission and goodwill work, and how it can be terminated. Our agency agreement lawyers in the Netherlands draft and review agency contracts and act in commission, termination and goodwill disputes.
What is a commercial agency agreement under Dutch law?
Under article 7:428 of the Dutch Civil Code, an agency agreement is a contract in which a principal engages an agent to act as an intermediary in concluding contracts, for a fixed or indefinite period and for remuneration, without the agent being an employee.
It differs from distribution: a distributor buys and resells goods in its own name and for its own account, while an agent only brings about contracts for the principal. We explain this further on the difference between distribution and agency under Dutch law.
Is Dutch commercial agency law mandatory?
Yes, to a large extent. Although Dutch law respects freedom of contract, much of the agency regime is mandatory, which means clauses that deviate from the mandatory provisions are void and have no effect.
For example, the parties cannot validly agree in advance to exclude the agent’s goodwill payment on termination, because that protection is mandatory. Where the agent operates in the Netherlands and the parties made no valid choice of law, Dutch courts generally apply Dutch law, and they will set aside a chosen law that has no real connection with the relationship.
This matters when you draft the contract, because a clause that would be enforceable in another country can be void here. A Dutch contract lawyer can check an agency agreement against the mandatory rules before you sign it.
What must a commercial agency agreement contain?
An agency agreement does not generally need to be in writing to be valid, but several clauses are only effective if they are agreed in writing.
A non-compete clause is one; a del credere clause, under which the agent guarantees that a customer will pay, is another. Setting out the territory, the products, the commission and the notice period in writing also prevents most later disputes, even where the law does not strictly require it.
An agent that runs a business organisation in the Netherlands must register in the Trade Register of the Chamber of Commerce. If the principal has no establishment in the Netherlands, the agent must also register the principal; if the principal is established here, it must register itself.
Are non-compete clauses valid in an agency agreement?
Only within limits. Under article 7:443 of the Dutch Civil Code a non-compete clause binds the agent only if it is agreed in writing, lasts no longer than two years after the agreement ends, and is limited to the goods or services and the territory covered by the agent. A Dutch court may annul or reduce a non-compete clause whose effect is unfair or disproportionately harmful to the agent.
How is the agent’s commission calculated?
The agent’s right to commission is governed by article 7:431 of the Dutch Civil Code. During the agreement, the agent is entitled to commission where:
- the contract was brought about through the agent’s work;
- the contract was concluded with a customer the agent had previously introduced for that kind of contract; or
- the contract falls within the territory or client base assigned exclusively to the agent.
Commission can also be due on contracts concluded shortly after termination that result mainly from the agent’s earlier work. It becomes payable once the principal has performed the contract, or should have performed it, and the principal must give the agent a statement of the commission owed.
Because commission often turns on who brought about a contract, an agent should keep clear records of its work: quotations, introductions, meetings and orders. Without that evidence an agent may be unable to show which of its efforts led to a sale, and a commission claim can fail on that point alone.
What obligations does the principal have toward the agent?
The agency regime binds the principal too, not only the agent. The principal must act toward the agent in good faith, make available the information, samples and documentation the agent needs to do its work, and tell the agent within a reasonable time whether it has accepted, refused or failed to perform a contract the agent brought in. It must also warn the agent in good time if it expects the volume of business to be significantly lower than the agent could normally have anticipated, so the agent can adjust.
How can a commercial agency agreement be terminated?
A fixed-term agreement can be ended early only if the contract allows it; if it simply continues after its end date, it becomes an open-ended agreement by operation of law.
An open-ended agreement is ended by notice, and the statutory minimum notice period runs from one to three months depending on how long the agency has lasted. Termination with immediate effect is possible only for an urgent cause; without one, the terminating party may owe damages.
The wording of the notice clause and the reason for ending the relationship therefore decide most termination disputes. Our page on termination of a commercial agency contract under Dutch law sets out the steps in more detail.
Is the agent entitled to a goodwill payment on termination?
Often, yes. Under article 7:442 of the Dutch Civil Code the agent is entitled to a goodwill payment (klantenvergoeding) if it brought in new customers or significantly grew existing business from which the principal still benefits after termination.
The payment is capped at the agent’s average annual remuneration over the last five years, or over the actual shorter period if the agreement lasted less than five years. See our page on goodwill compensation for commercial agents.
How long do you have to claim goodwill compensation?
The general Dutch limitation period is five years, but a claim based on an invalid or irregular termination of the agency agreement is subject to a shortened one-year period.
The limitation period can be suspended or interrupted by a written demand for payment, which stops the clock while the claim is pursued, so acting in time is essential.
A practical example: an agent’s goodwill claim
Suppose an agent spends four years building a customer base in the Netherlands for a foreign principal, and the principal then ends the agreement to sell to those customers directly.
Because the principal keeps benefiting from the customers the agent introduced, article 7:442 entitles the agent to a goodwill payment, capped at its average annual commission over the period. The agent’s detailed records of which customers it introduced are exactly what make such a claim succeed, which is why documentation matters from day one.
Speak to a Dutch commercial agency lawyer
Whether you are drafting an agency agreement, negotiating a non-compete, or facing termination and a goodwill claim, the mandatory rules of Dutch agency law shape your position.
Our Dutch commercial agency lawyers draft and review agreements and advise principals and agents on commission, termination and goodwill. This work sits within our wider Dutch contract law practice. Contact us to review your commercial agency agreement.
Frequently asked questions about commercial agency agreements
Does a commercial agency agreement have to be in writing?
No, an agency agreement is valid without a written document. But certain clauses — notably a non-compete clause under article 7:443 of the Dutch Civil Code and a del credere clause — are only effective if they are agreed in writing.
How much goodwill compensation can an agent claim?
Under article 7:442 of the Dutch Civil Code the goodwill payment is capped at the agent’s average annual remuneration over the last five years, or over the actual period if the agreement lasted less than five years.
How long is the notice period for an agency agreement?
For an open-ended agreement, the statutory minimum notice period runs from one to three months depending on how long the agency has lasted. Termination with immediate effect is only possible for an urgent cause, failing which damages may be owed.
What is the difference between an agent and a distributor?
An agent brings about contracts for the principal and earns commission, without owning the goods. A distributor buys the products and resells them on its own account for a margin, and has no statutory goodwill claim under Dutch law.
Can the parties choose a foreign law for a Dutch agency agreement?
They can make a choice of law, but where the agent operates in the Netherlands the mandatory provisions of Dutch agency law still apply, and a Dutch court may set aside a chosen law that has no real connection with the relationship.
