Agenturavtale i henhold til nederlandsk lov: regler, klausuler og oppsigelse

An agency agreement (agentuurovereenkomst) is a contract in which an independent commercial agent (handelsagent) brokers, and sometimes concludes, contracts for a principal in return for commission. Articles 7:428 to 7:445 of the Dutch Civil Code (BW) govern it, and several of those rules are mandatory: you cannot contract out of the statutory notice periods, the limits on a non-compete or, while the agreement runs, the goodwill indemnity (klantenvergoeding).

The Dutch rules implement EU Directive 86/653/EEC but go further on notice periods and scope. Below we explain when the regime applies, how commission works, which clauses the contract needs, and what ending the relationship costs.

What is an agency agreement under Dutch law?

Under Article 7:428(1) BW, an agency agreement exists when an agent undertakes, for a fixed or indefinite period and against remuneration, to mediate in the formation of contracts for a principal, without being subordinate to that principal. Four elements must be present: mediation, a continuing assignment, remuneration and independence.

Independence separates the agent from an employee. In its Deliveroo judgment of 24 March 2023 (ECLI:NL:HR:2023:443), the Supreme Court (Hoge Raad) held that the label in the contract does not decide this: the court weighs all circumstances, such as integration into the business, the duty to work personally and who bears the commercial risk. An agent also differs from a distributor, because the agent never buys or resells the goods and never carries stock.

Does the regime also cover services?

Yes. The directive only covers agents selling goods, but Article 7:428 BW speaks of contracts in general, so an agent who brokers software subscriptions, transport capacity or advertising space is protected in the same way. The only carve-out in Article 7:428(2) BW concerns agency relationships covered by the Financial Supervision Act (Wet op het financieel toezicht).

Does the agreement have to be in writing?

No. An agency agreement can arise orally or from a course of dealing once the elements of Article 7:428 BW are met. Under Article 7:428(3) BW, each party may demand a signed document setting out the current terms, and Article 7:445 BW makes that right mandatory.

Some clauses do require writing: a non-compete (Article 7:443 BW), a del credere clause (Article 7:429 BW) and a less frequent commission statement (Article 7:433 BW). In practice, every dispute about territory, exclusivity or commission comes down to proof, so put the whole arrangement on paper.

When can the agent bind the principal?

An agent who only mediates brings the parties together; the principal then contracts with the customer. The agent can only sign in the principal’s name with a power of attorney (volmacht). Under Article 3:61(2) BW, the principal is still bound if its own statements or conduct led the customer to reasonably believe that sufficient authority existed. Keep the mandate in the contract, the agent’s business cards and the order forms consistent.

Which rules can you not contract out of?

Article 7:445(1) BW lists the provisions from which neither party may deviate. They include the right to a signed copy (Article 7:428(3)), the del credere limits (Article 7:429), the principal’s duties (Article 7:430), the commission statement (Article 7:433), the minimum notice periods (Article 7:437(2)), the termination and damages rules (Articles 7:439 to 7:441), the non-compete limits (Article 7:443) and the one-year limitation period (Article 7:444).

Under Article 7:445(2) BW, the goodwill indemnity of Article 7:442 BW cannot be excluded to the agent’s detriment before the agreement ends. A waiver signed at the start therefore has no effect; you can only settle the indemnity once the relationship is over. EU case law also prevents a principal from escaping the directive’s indemnity rules by choosing the law of a non-EU country for an agent working inside the EU.

What remains negotiable is the commercial design: exclusive or non-exclusive appointment, territory and customer groups, commission rates and scales, targets, reporting and the forum for disputes. Draft those clauses as additions to the statutory regime, not as substitutes for it.

When does the agent earn commission?

Under Article 7:431(1) BW, the agent earns commission on contracts concluded during the agency that came about through the agent’s work, that were concluded with a customer the agent introduced earlier for a similar deal, or that were concluded with a customer in the agent’s allocated territory or customer group. That third ground applies unless the contract expressly states that the agent has no exclusive right there.

So if you grant a territory and then sell into it yourself, including through a webshop, commission is due unless the contract clearly says otherwise. Under Article 7:431(2) BW, the agent also earns commission on deals concluded after the end of the agency if they are mainly due to the agent’s work and are concluded within a reasonable period, or if the order arrived before the end date.

When must commission be paid?

Article 7:433 BW requires the principal to give the agent a written statement of the commission due after each month, before the end of the following month, with the data on which it is based. The parties may agree in writing on a two- or three-monthly statement. Under Article 7:434 BW, commission is payable at the latest when that statement must be given, and late payment triggers the statutory commercial interest of Article 6:119a BW.

The agent may inspect the supporting records, if necessary with an expert appointed by the preliminary relief judge (voorzieningenrechter), under Article 7:433(2) BW. A clause that makes commission depend on the customer actually paying is lawful, but Article 7:432(2) BW requires it to be agreed expressly.

What if the principal rejects or ignores orders?

Under Article 7:432(1) BW, an order the agent passes on is deemed accepted for commission purposes unless the principal rejects it or makes a reservation within the agreed period, or within one month if nothing was agreed. If the principal makes much less use of the agent than the agent could normally expect, Article 7:435 BW gives the agent a right to remuneration, unless the cause lies outside the principal’s control.

Which clauses should a Dutch agency agreement contain?

Most agency disputes before a Dutch court turn on three questions: what the agent was allowed to do, how commission was calculated, and whether the termination was regular. A well-drafted avtale answers all three in advance.

Authority, territory and products

State whether the agent may only collect orders or may also accept them in your name, and up to what value. Define the products or services, the customer segments and the geographic area, including any house accounts you keep. Vague wording feeds a later claim under Article 7:431(1)(c) BW that every customer in the region belonged to the agent’s territory.

Commission and statements

Fix the percentage or scale, the base (net invoice value, treatment of returns, discounts and credit notes) and the trigger. Set the statement cycle within the limits of Article 7:433 BW and the payment date. If you use targets, state whether missing them affects the commission scale, gives a right to terminate, or both.

Exclusive, sole or non-exclusive?

These three models are often confused, and the choice decides whether you may keep selling into the territory yourself. Online sales into an exclusive territory are direct sales, so deal with them expressly.

Varighet og fornyelse

A fixed-term agency ends automatically when the term expires. Under Article 7:436 BW, if both parties simply continue afterwards, the agreement continues for an indefinite period on the same terms, and the statutory notice periods then apply. If you want to be able to end a fixed-term agreement early, include a right of interim termination; otherwise the party who leaves early owes damages under Article 7:439 BW.

Non-compete, confidentiality and intellectual property

Under Article 7:443 BW, a post-contractual non-compete is only valid if it is in writing, limited to the type of goods or services the agent represented and to the agent’s territory or customer group, and lasts no longer than two years after the end of the agreement. The principal cannot rely on it after terminating irregularly, after the agent terminated for an urgent reason caused by the principal, or after a court dissolution blamed on the principal. Under Article 7:443(4) BW, the court may also set the clause aside if it unfairly harms the agent.

Confidentiality over prices, margins and customer data should be mutual. Confirm that trade marks and marketing materials stay with the principal and that any tillatelse to use them ends with the agency. Because the agent handles customer data, decide whether it processes those data on your instructions, in which case the GDPR requires a data processing agreement.

Governing law and court

Choose Dutch law expressly. Under Article 93(c) of the Dutch Code of Civil Procedure (Rv), agency disputes go to the subdistrict court (kantonrechter) regardless of the amount, and under Article 79 Rv parties may litigate there without a lawyer. Arbitration, for example at the Netherlands Arbitration Institute, is an alternative if confidentiality matters more than cost. An escalation clause with negotiation or mediation often leads to a forliksavtale (vaststellingsovereenkomst).

What do principal and agent owe each other?

The agent must look after the principal’s interests with due care: pursue orders actively, pass on enquiries, complaints and signs of payment problems promptly, and follow reasonable instructions. Serious breaches of these duties can justify termination for an urgent reason and can affect a later indemnity claim.

Under Article 7:430 BW, the principal must do what is needed to enable the agent to work. It must provide documentation such as price lists and specifications, warn the agent without delay if it expects significantly fewer contracts than the agent could expect, and tell the agent within a reasonable time whether it accepts, refuses or will not perform a brokered contract.

Can the agent guarantee the customer’s payment?

Yes, through a del credere clause, but Article 7:429 BW limits it strictly. It must be in writing, and unless agreed otherwise in writing the agent only answers for the customer’s solvency. The agent cannot be liable for more than the agreed commission, unless the clause relates to a specific contract or to contracts the agent concludes in the principal’s name, and the court may reduce a disproportionate liability.

How do you end an agency agreement correctly?

An agency for an indefinite period, or a fixed-term agency with a right of interim termination, ends by notice under Article 7:437 BW. Without agreement, the notice period is four months, plus one month after three years and two months after six years, so six months for a long relationship.

The parties may agree on different periods, but under Article 7:437(2) BW never shorter than one month in the first year, two months in the second year and three months in later years. If longer periods are agreed, the principal’s period may not be shorter than the agent’s. Under Article 7:437(3) BW, notice must expire at the end of a calendar month.

What happens if you terminate without proper notice?

Under Article 7:439 BW, a party that ends the agreement early without consent or proper notice owes damages, unless it terminates for an urgent reason communicated to the other party immediately. An urgent reason means continuation cannot reasonably be expected, even temporarily; disappointing turnover alone is not enough. Article 7:441 BW sets the damages at the remuneration for the notice period that should have been observed, based on earlier commission; the court may reduce that sum, and the injured party may instead prove its full loss.

Either party may also ask the subdistrict court to dissolve the agreement for an urgent reason or a change of circumstances, under Article 7:440 BW. The hearing must start no later than the fourth week after the petition is filed. Claims based on Articles 7:439 and 7:440 BW become time-barred one year after the event that gave rise to them (Article 7:444 BW), so act quickly.

The agreement ends automatically on the agent’s death under Article 7:438 BW. If the principal dies, the heirs and the agent may end it within nine months with four months’ notice.

When is a goodwill indemnity due?

Under Article 7:442(1) BW, the agent is entitled to a goodwill indemnity at the end of the agreement if it brought in new customers or significantly increased business with existing customers, those customers still bring the principal substantial benefits, and payment is fair in view of all circumstances, in particular the commission the agent loses. The indemnity comes on top of any damages for irregular termination.

Article 7:442(2) BW caps the indemnity at one year’s remuneration, based on the average of the last five years or of the whole term if shorter. The cap is a ceiling, not a starting point. Under Article 7:442(3) BW, the right lapses if the agent does not tell the principal within one year after the end of the agreement that it claims the indemnity.

Under Article 7:442(4) BW, no indemnity is due if the principal terminated for an urgent reason for which the agent is to blame, if the agent terminated without a reason attributable to the principal or to the agent’s age, illness or disability, or if the agent transferred its position to a third party with the principal’s agreement.

Agency, distribution or commission agency: which model fits?

Only agency carries the statutory notice regime and goodwill indemnity. A fordelingsavtale has no statutory regime, but Dutch courts still require a reasonable notice period based on reasonableness and fairness, taking into account the length of the relationship, investments and dependence.

Choose agency if control over price and brand matters and you accept the indemnity risk; choose distribution to shed stock and credit risk. The commission agency (commissieovereenkomst) suits a principal who prefers not to appear towards customers, but its VAT and accounting treatment differs, so involve your tax adviser. See also our overview of typer kommersielle avtaler.

Hva bør du sjekke som rektor?

• Check that agreed notice periods meet the minimums of Article 7:437(2) BW and that your period is not shorter than the agent’s.
• Check whether you have reserved direct and online sales in the agent’s territory, to avoid commission under Article 7:431(1)(c) BW.
• Check that you send a written commission statement at least every month, or every two or three months if agreed in writing.
• Check that you accept or reject orders within the agreed period, or within one month.
• Check that any non-compete is in writing and stays within two years and the agent’s goods and territory.
• Estimate the goodwill indemnity (up to one year’s average remuneration) before you give notice.

What should you check as an agent?

• Check whether your territory or customer group is exclusive, so you can claim commission on direct sales there.
• Check your commission statements against the underlying records; you may inspect them under Article 7:433(2) BW.
• Check that the notice you receive is long enough and expires at the end of a calendar month.
• Send a written claim for the goodwill indemnity within one year after the agreement ends.
• Bring any damages claim for irregular termination within one year (Article 7:444 BW).
• Check that a del credere clause is in writing and does not exceed your commission.

What can we do for you with agency agreements?

Våre bedriftsadvokater advise principals and agents at every stage of the relationship.

• We draft or review your agency agreement against Articles 7:428 to 7:445 BW.
• We check notice, non-compete and commission clauses in a template or foreign-law contract.
• We calculate the notice period and the maximum goodwill indemnity before notice is given.
• We draft the notice letter or the indemnity claim within the statutory deadlines.
• We negotiate an exit settlement or conduct proceedings before the subdistrict court.

For drafting tips, see our notes on negotiating commercial terms, on what to check before you signere en kontrakt, og vår guide til kontraktsrett i Nederland.

Sammendrag

• Articles 7:428 to 7:445 BW govern agency agreements, including agents who broker services.
• Commission is also due on sales in an exclusive territory and, in some cases, after the agency ends.
• Without agreement, notice is four to six months and must expire at the end of a calendar month.
• The goodwill indemnity is capped at one year’s remuneration and must be claimed within one year.
• Agency disputes go to the subdistrict court regardless of the amount.

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