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A breach of exclusivity occurs when a supplier sells into the territory it reserved for its exclusive distributor, or when a distributor sells competing products or sells outside its territory against the contract. Dutch law has no separate statute for distribution agreements, so the general contract rules apply: you can claim performance, damages and, if the breach justifies it, termination (Articles 3:296, 6:74 and 6:265 DCC).
This page is for foreign manufacturers with a Dutch distributor, and for foreign distributors that buy from a Dutch supplier. It explains what counts as a breach, which exclusivity clauses EU competition law allows, how you prove the breach and what you can claim. Do you suspect that your Dutch partner is selling around your exclusivity? Have a Dutch distribution lawyer assess your position before you confront the other party.
What counts as a breach of exclusivity under Dutch law?
Any conduct that the exclusivity clause prohibits. Because Dutch law does not regulate distribution agreements as a separate contract type, the wording of your contract decides, supplemented by what reasonableness and fairness require (Article 6:248(1) DCC).
| Situation | Breach by | What to check in the contract |
|---|---|---|
| The supplier sells directly to customers in the exclusive territory | Supplier | Whether the supplier reserved direct sales or certain large customers for itself |
| The supplier appoints a second distributor for the same territory | Supplier | Whether exclusivity covers the territory, a customer group or both |
| The distributor sells competing products | Distributor | The non-compete clause, its scope and duration |
| The distributor actively targets customers in another distributor’s territory | Distributor | The restriction on active sales and the territories it covers |
| The distributor does not meet its minimum purchase obligation | Distributor | Whether the supplier may then end exclusivity or the contract |
Exclusivity is often a condition for the distributor’s investments and minimum purchase obligations. A clear definition of the territory, the products and the customers covered, and of the exceptions, prevents most disputes. Our page on drafting a Dutch distribution agreement covers those clauses.
Which exclusivity clauses does EU competition law allow?
Most exclusive distribution agreements are covered by the EU block exemption for vertical agreements, provided the market shares of supplier and distributor each do not exceed 30% (Article 3(1) Regulation (EU) 2022/720). The exemption sets limits on territorial restrictions and on non-compete obligations.
In an exclusive distribution system, the supplier allocates a territory or customer group to itself or to at most five distributors (Article 1(1)(h) Regulation 2022/720). It may prohibit its other distributors from actively selling into that territory. A restriction of passive sales, meaning sales in response to unsolicited requests from customers, is a hardcore restriction that takes the whole agreement outside the block exemption (Article 4(b) Regulation 2022/720). A non-compete obligation for longer than five years, or for an indefinite period, is not exempted either (Article 5(1)(a) Regulation 2022/720).
Falling outside the block exemption does not make a clause void by itself. But restrictions of competition that do not meet the conditions for an exemption are prohibited and automatically void (Article 101(1) to (3) TFEU); whether the rest of the contract survives depends on the applicable national law. Before you enforce an exclusivity clause, check that it is valid; otherwise the other party will raise invalidity as its first defence. More on our pages on price agreements, exclusivity and territories and non-compete clauses in distribution agreements.
What can you claim when exclusivity is breached?
Performance, damages, a contractual penalty if agreed, and termination if the breach justifies it. You can combine some of these: for example, an order to stop selling in the territory together with damages for the sales already lost.
- An order to comply with the exclusivity or the non-compete clause (Article 3:296 DCC), with a penalty payment for each breach of the order (Article 611a DCCP).
- Damages for the loss suffered and lost profit (Articles 6:74 and 6:96 DCC). If the amount cannot be established precisely, the court estimates it (Article 6:97 DCC).
- A contractual penalty, which replaces statutory damages and which the court can reduce if fairness clearly requires (Articles 6:92 and 6:94 DCC).
- Termination for a breach that justifies it (Article 6:265 DCC); see our page on the termination of a distribution agreement.
- Suspension of your own obligations, such as deliveries or bonus payments, in proportion to the breach (Article 6:262 DCC).
A completed sale in your territory cannot be undone. Damages for that sale therefore do not require a notice of default, because performance in respect of that sale is no longer possible (Article 6:74(2) DCC). For ongoing conduct, a written notice with a deadline is still the safest first step (Article 6:82 DCC).
How do you prove a breach of exclusivity in the Netherlands?
The party that relies on the breach must prove it (Article 150 DCCP). In practice that means collecting evidence of sales in the territory or of competing products before the other party knows you are looking.
Useful evidence includes test purchases, invoices and delivery notes from customers in the territory, online offers aimed at the territory, statements from customers and trade fair materials. Where the other party holds the sales records, you can claim access to specific documents about your legal relationship if you have a sufficient interest (Article 194 DCCP). A third party, such as a logistics provider, can be ordered to give access as well (Article 195a DCCP). See our page on evidence in Dutch civil law.
How is the damage from an exclusivity breach calculated?
Usually as the profit you lost on the sales that went around you, minus the costs you saved. The court assesses damage in the way that best fits its nature and estimates it if it cannot be established precisely (Article 6:97 DCC).
Prepare figures that the court can follow: your margin per product, the volume sold in breach of the clause and the period. Damage to your market position or to investments made for the exclusive territory can also count, if it can be attributed to the breach (Article 6:98 DCC). If your own conduct contributed, for example because you did not supply the products the customer asked for, the compensation is reduced (Article 6:101 DCC).
Do you have evidence of parallel sales in your territory, but no clear figures yet? Contact our Dutch law firm in Amsterdam; we help you secure the evidence and calculate the claim before you send a letter.
You discover a breach of exclusivity: what should you do first?
Secure the evidence, check that your exclusivity clause is valid and send a written notice. Decide only then whether you want to stop the conduct quickly, claim damages or end the agreement.
- Record the evidence: test purchases, screenshots of online offers with date, customer statements.
- Check the contract: territory, products, customers, exceptions, non-compete, penalty clause, governing law and forum.
- Check the clause against the EU block exemption (Articles 3, 4 and 5 Regulation 2022/720).
- Send a written notice that describes the breach and sets a deadline (Article 6:82 DCC); see our page on the demand letter under Dutch law.
- If the conduct continues and harms your market, consider summary proceedings (kort geding) for an order to stop (Article 254 DCCP).
- Calculate your loss and decide whether to continue or end the agreement.
Practical example: a Danish manufacturer and its Dutch distributor
Suppose a Danish manufacturer of industrial pumps appoints a Dutch company as exclusive distributor for the Benelux for five years. The distributor accepts a non-compete clause for the duration of the contract. In the third year, the manufacturer finds out through a trade fair that the distributor also offers pumps of a competing brand.
The manufacturer buys a competing pump from the distributor as evidence and sends a notice demanding that the distributor stop within fourteen days. The non-compete does not exceed five years, so if both market shares stay below 30% the clause falls within the block exemption (Articles 3(1) and 5(1)(a) Regulation 2022/720). When the distributor continues, the manufacturer asks the preliminary relief judge for an order to comply, with a penalty payment per breach (Articles 3:296 DCC and 611a DCCP). Damages for lost sales, or termination, can follow in proceedings on the merits.
When do you need a Dutch lawyer for an exclusivity dispute?
As soon as you have evidence of a breach, and before you send the first letter. The first letter sets the tone, and a claim based on an invalid clause or without proper evidence weakens your position in the negotiations that usually follow.
A claimant must be represented by a Dutch advocate in proceedings before the district court, including summary proceedings, except in subdistrict court cases (Articles 79 and 255 DCCP). MAAK Advocaten in Amsterdam acts for suppliers and for distributors: we assess the clause, collect evidence, negotiate, and act in summary proceedings, proceedings on the merits and on appeal, or in arbitration if your contract provides for it. Read more about Dutch distribution law and distribution agreements in the Netherlands, or contact our distribution lawyers.
Frequently asked questions about breach of exclusivity in Dutch distribution agreements
Can a supplier sell directly in its distributor’s exclusive territory?
Only if the contract allows it. Many agreements reserve certain customers or online sales for the supplier. Without such a reservation, direct sales in the territory can breach the exclusivity, and the distributor can claim performance and damages (Articles 3:296 and 6:74 DCC).
Can I stop my exclusive distributor from selling outside its territory?
In principle, you may restrict active sales into territories reserved for you or allocated to up to five other exclusive distributors. Restricting passive sales, in response to unsolicited customer requests, takes the agreement outside the EU block exemption (Article 4(b) Regulation 2022/720).
How long can a non-compete clause in a distribution agreement last?
Under the EU block exemption, a non-compete obligation during the agreement may not last longer than five years or be indefinite (Article 5(1)(a) Regulation 2022/720). Post-term non-competes are only exempted in narrow cases (Article 5(1)(b) and (3)).
Can I get an urgent court order against a breach of exclusivity?
Yes. In summary proceedings, the preliminary relief judge can order the other party to stop, often with a penalty payment for each breach (Articles 254 and 611a DCCP). You must show urgency and a claim that is likely to succeed.
Can a Dutch court reduce the penalty in my exclusivity clause?
Yes, if fairness clearly requires it, but not below the statutory damages. A clause that excludes this power is void (Article 6:94 DCC).
Primary sources
Dutch statutes are only officially available in Dutch, on wetten.overheid.nl. Judgments can be found on rechtspraak.nl by their ECLI number. Legal position checked on 28 October 2026; EU texts checked via Moonlit.
- Dutch Civil Code (Burgerlijk Wetboek): Article 3:296; Articles 6:74, 6:82, 6:92, 6:94, 6:96, 6:97, 6:98, 6:101, 6:248, 6:262 and 6:265
- Dutch Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering): Articles 79, 150, 194, 195a, 254, 255 and 611a
- Commission Regulation (EU) 2022/720 (Vertical Block Exemption Regulation): Articles 1, 3, 4 and 5
- Treaty on the Functioning of the European Union: Article 101
