The Netherlands
- Commercial agency in the Netherlands is primarily governed by articles 7:428-7:445 of the Dutch Civil Code (DCC), which implements the EU Commercial Agents Directive (86/653/EEC). These provisions are largely of mandatory law, particularly those aimed at protecting the commercial agent. Dutch case law further refines key concepts, such as the qualification of a “commercial agent” and the criteria for entitlement to goodwill indemnity.
- In the Netherlands, collective labor agreements (collectieve arbeidsovereenkomsten – CAOs) generally do not apply to commercial agents, as they typically operate as self-employed independent contractors (zelfstandigen zonder personeel – ZZP) rather than as employees. Consequently, there are no sector wide collective labor agreements binding self employed commercial agents as such.
- Upon termination, a commercial agent is entitled to goodwill indemnity (client compensation) pursuant to article 7:442 DCC, provided that: (a) the agent has brought new clients or significantly increased business with existing clients and the principal continues to derive substantial benefits from those clients/business; and (b) the payment is equitable, considering all circumstances (including lost commission).
The indemnity is capped at an amount equivalent to one year of commission, calculated on the agent’s average annual remuneration over the preceding five years (or the shorter duration of the agency). No indemnity is due if the principal terminated because of a breach of contract attributable to the agent, or if the agent terminated without cause or in the absence of special circumstances.
- Dutch law requires the commercial agent to notify the principal of its intention to claim goodwill indemnity within one year after termination of the agency agreement (article 7:442(3) BW). Failure to do so results in forfeiture of the right. This is a strict deadline and cannot be contractually shortened.
- Robin de Jong (dejong@certa.nl); Mr. Cedric de Breet (debreet@certa.nl); Mr. Ernst-Paul Pandelitschka (pandelitschka@certa.nl)
