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A non-compete clause in a Dutch commercial agency contract (concurrentiebeding) is only valid if it is in writing, covers only the goods or services the agent represented and the territory, or clientele and territory, entrusted to the agent, and lasts at most two years after the contract ends (Article 7:443 Dutch Civil Code). A court can limit or annul it at the agent’s request.
Does a non-compete clause apply in a Dutch commercial agency contract?
A commercial agent (handelsagent) is an independent intermediary who, for remuneration, acts as an intermediary in the conclusion of contracts for a principal and may conclude them in the principal’s name and for its account, without being subordinate to the principal (Article 7:428(1) DCC; see also commercial agency agreement under Dutch law). A non-compete clause restricts the agent’s freedom to work after the agency contract ends. For employees, a different article applies (Article 7:653 DCC); see competition clauses in Dutch employment contracts.
Under Article 7:443 DCC, such a clause is valid only to the extent that it meets these conditions:
- It is in writing (Article 7:443(1)(a) DCC).
- It relates to the type of goods or services for which the agent had the representation, and to the territory, or the clientele and the territory, entrusted to the agent (Article 7:443(1)(b)).
- It applies for no more than two years after the end of the agency contract (Article 7:443(2)).
Because the clause may only cover the territory, or the clientele and territory, entrusted to the agent, the wording of the agency contract matters. A clause that also covers customers or areas that were never entrusted to the agent is not valid to that extent (Article 7:443(1)(b) DCC). Whether particular customers belong to the entrusted clientele is a question of interpreting the contract in the circumstances of the case.
Draft the clause precisely: state the goods or services, the territory and, where relevant, the customers it covers. A clause that is not in writing is not valid. A written clause that goes beyond the goods or services, the territory or clientele entrusted to the agent, or beyond two years, is valid only to the extent that it stays within those limits (Article 7:443(1) and (2) DCC).
The parties cannot deviate from Article 7:443 by contract (Article 7:445(1) DCC).
Can a Dutch court set aside a non-compete clause in an agency contract?
What principles guide Dutch courts in evaluating non-compete clauses?
The statutory test is in Article 7:443(4) DCC. At the agent’s request, the court can set the clause aside in whole or in part on the ground that, compared with the principal’s interest to be protected, the agent is unfairly disadvantaged by it (onbillijk benadeeld). The court weighs the interests of both parties in the circumstances of the case, for example the scope and duration of the clause.
Separately, the principal cannot derive any rights from the clause if the agency contract ended (a) because the principal terminated it without the agent’s consent, without observing the statutory or agreed notice period and without an urgent reason communicated to the agent without delay; (b) because the agent terminated it for an urgent reason, communicated to the principal without delay, for which the principal is to blame; or (c) by a court decision based on circumstances for which the principal is to blame (Article 7:443(3) DCC).
Requirements for Validity: When Is a Non-Compete Enforceable?
Must It Be in Writing?
Yes. The clause must be in writing (op schrift gesteld, Article 7:443(1)(a) DCC). An oral agreement is not enough, and a clause that is not in writing is not valid. The statute does not say where the written clause must appear; including it in the signed agency contract is the safest course.
How Long Can a Non-Compete Last?
The clause is valid for at most two years after the agency contract ends (Article 7:443(2) DCC). A clause agreed for a longer period is not valid for the excess. Even within two years, the court can set the clause aside in whole or in part at the agent’s request if the agent is unfairly disadvantaged by it (Article 7:443(4)).
Compensation: Is the Agent Entitled to Payment under Dutch law?
Is compensation required for non-compete clauses in Dutch agency contracts?
No. For employees, the court can order the employer to pay compensation if the clause substantially hinders the employee from working other than for the employer (Article 7:653(5) DCC). Article 7:443 DCC contains no such rule for commercial agents, so the law does not require the principal to pay for a non-compete. The law also does not say whether a payment affects the court’s assessment under Article 7:443(4); that depends on the circumstances of the case.
The non-compete clause is separate from goodwill compensation (klantenvergoeding). At the end of the agency contract, the agent may be entitled to that payment if the statutory conditions are met (Article 7:442 DCC); see goodwill compensation for commercial agents.
Remedies and Enforcement: What Happens If a Non-Compete Is Breached under Dutch law?
What legal remedies are available if a non-compete clause is breached?
If an agent breaches a valid non-compete clause, the principal has several remedies available under Dutch law:
- Injunction: the principal can ask the court to order the agent to stop the competing activity, often in summary proceedings (kort geding), where appropriate subject to a penalty payment (dwangsom) for non-compliance.
- Damages: the principal can claim compensation for the loss caused by the breach (Article 6:74(1) DCC). The principal must prove its loss.
- Contractual penalties: many agency contracts include a penalty clause (boetebeding, Article 6:91 DCC), often a fixed sum per breach and per day. The penalty replaces statutory damages (Article 6:92(2)). At the agent’s request, the court can reduce the penalty if fairness clearly requires this, but not below the statutory damages (Article 6:94(1)).
Before enforcing the clause, the principal should check that it meets Article 7:443(1) and (2) DCC and that none of the situations in Article 7:443(3) applies. Disputes about an agency agreement are heard by the subdistrict court (kantonrechter), regardless of the value of the claim (Article 93(c) Dutch Code of Civil Procedure).
Geographical and Sectoral Limits: How Specific Should the Clause Be under Dutch law?
What geographical and sectoral limits should a non-compete clause have?
Article 7:443(1)(b) DCC sets two cumulative limits. The clause may only relate to (1) the type of goods or services for which the agent had the representation, and (2) the territory, or the clientele and the territory, entrusted to the agent.
For example, if the principal entrusted the agent with the Amsterdam region only, a clause covering the whole of the Netherlands is not valid outside that region; the principal’s business reasons cannot extend the statutory limit. Similarly, if the agent sold medical equipment, the clause cannot validly cover unrelated products such as consumer electronics.
How should principals and agents draft and review a non-compete clause?
How can principals ensure that a non-compete clause is enforceable?
For principals seeking to include a non-compete clause in their agency agreements, careful drafting is crucial. Here are some practical tips:
- Define Scope Clearly: Specify the goods or services, geographical areas, and customer groups to which the non-compete applies.
- Keep It Proportional: Ensure the restrictions are proportional to the need to protect legitimate interests. Avoid overly broad clauses that may not hold up in court.
- Stay within the statute: no more than two years after the end of the contract, and only the goods or services and the territory (or clientele and territory) actually entrusted to the agent (Article 7:443(1) and (2) DCC).
What should agents watch out for in non-compete clauses?
Agents, on the other hand, should take the following steps before agreeing to a non-compete clause:
- Understand the restrictions: review the goods or services, territory and duration of the clause. If it seems too restrictive, negotiate a narrower scope. After termination, check whether the principal can still rely on the clause (Article 7:443(3) DCC) and whether to ask the court to set it aside (Article 7:443(4)).
- Seek Legal Advice: Consult a legal professional to ensure that the clause complies with Dutch law and does not unnecessarily limit future opportunities.
Recent Developments: Do Changes in Non-Compete Law Affect Agency Contracts?
Do changes to Dutch non-compete rules for employees affect agency contracts?
A change to the non-compete rules for employment contracts (Article 7:653 DCC) does not by itself affect commercial agents. Agents are not employees, and their non-compete clauses are governed by Article 7:443 DCC.
This page is based on the current text of Article 7:443 DCC on wetten.overheid.nl (version valid from 8 October 2026, consulted on 26 October 2026). That text showed no amendment awaiting entry into force. Principals and agents should therefore apply the rules described above.
What should principals and agents consider regarding non-compete clauses?
To sum up, a non-compete clause can protect a principal after a commercial agency contract ends, but only within Article 7:443 DCC: in writing, limited to the goods or services and the entrusted territory (or clientele and territory), and for at most two years. It should also be no broader than the principal’s interest requires, because the court can set it aside at the agent’s request (Article 7:443(4)).
Both principals and agents need to be aware of their respective rights and obligations under Article 7:443 of the Dutch Civil Code.
- For principals: make sure the clause stays within Article 7:443 DCC and protects a real business interest, and check Article 7:443(3) before relying on it after termination.
- For Agents: Be vigilant about the scope of the clause, its geographical limits, and its duration. If necessary, negotiate to ensure that your ability to work post-termination is not unfairly restricted.
By understanding these key principles and requirements, both parties can effectively address the use of non-compete clauses in Dutch agency contracts, minimizing disputes and ensuring a fair balance of interests.
Frequently asked questions about non-compete clauses in Dutch commercial agency contracts
Is a non-compete clause enforceable in the Netherlands?
For a commercial agent, yes, if it is in writing, relates only to the type of goods or services the agent represented and the territory, or clientele and territory, entrusted to the agent, and lasts no longer than two years after the contract ends (Article 7:443(1) and (2) Dutch Civil Code). The court can still set it aside at the agent’s request (Article 7:443(4)). For employees, Article 7:653 applies.
How long can a non-compete clause last for a commercial agent?
At most two years after the end of the agency contract (Article 7:443(2) Dutch Civil Code). A clause agreed for a longer period is not valid for the excess. Within those two years, the court can limit the clause if the agent is unfairly disadvantaged compared with the principal’s interest (Article 7:443(4)).
Does a non-compete clause in an agency contract have to be in writing?
Yes. The clause is only valid if it is in writing (Article 7:443(1)(a) Dutch Civil Code). An oral agreement is not enough, and the parties cannot deviate from Article 7:443 by contract (Article 7:445(1)).
Does the principal have to pay the agent for a non-compete clause?
No. Article 7:443 Dutch Civil Code contains no compensation rule for commercial agents, unlike Article 7:653(5) for employees. Goodwill compensation (Article 7:442) is a separate claim that the agent may have when the agency contract ends.
When can the principal not rely on the non-compete clause?
When the contract ended because the principal terminated it without the agent’s consent, without observing the notice period and without an urgent reason communicated without delay; because the agent terminated it for an urgent reason for which the principal is to blame; or by a court decision based on circumstances for which the principal is to blame (Article 7:443(3) Dutch Civil Code).
Primary sources
- Dutch Civil Code (Burgerlijk Wetboek), Book 6: Articles 6:74, 6:91, 6:92 and 6:94
- Dutch Civil Code, Book 7: Articles 7:428, 7:442, 7:443, 7:445 and 7:653
- Dutch Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering): Article 93
How can a Dutch contract lawyer help with a non-compete in an agency contract?
MAAK Advocaten advises principals and agents on commercial agency agreements, including drafting and reviewing non-compete clauses, goodwill compensation and termination, and acts in proceedings about these issues.
For any legal inquiries or support in the Netherlands regarding non-compete clauses in Dutch commercial agency contracts, please contact MAAK Advocaten. Our Dutch lawyers can advise you on your situation. You can reach our law firm in the Netherlands through our website, by email, or phone.
Our staff at MAAK Advocaten can arrange a meeting with one of our attorneys in the Netherlands. Whether you need a Dutch litigation attorney or a Dutch contract lawyer in Amsterdam, we can guide you through the legal questions in your situation.
Contact details
Remko Roosjen | attorney-at-law (‘advocaat’)
+31 (0)20 – 210 31 38
remko.roosjen@maakadvocaten.nl
The information on this legal blog serves purely for educational purposes and should not be taken as specific legal guidance. While we endeavor to maintain accurate and current information, we do not assert its absolute completeness or relevance to your particular situation. For advice customized to your legal concerns, we urge you to engage with a licensed attorney. Please note that the blog’s content may change without notice, and we are not liable for any inaccuracies or missing information.
