Law of 5.7.1989; re-enacted by law no. 374 of 1993 as Articles 428-445 of book 7, title 10, part 4 of the Dutch Civil Code (Burgerlijk Wetboek).
If no notice period is agreed upon:
Indemnity or compensation or both
Calculation of indemnity/compensation
Capped at a maximum commission of one year, based on the average annual commission over last 5 years or, if less than 5 years, over the duration of the agency.
Yes, but only where there is express agreement.
Right to inspect the principal’s books.
Right to receive remuneration in the event that the agent is willing to perform the agency but the principal does not wish to use the agent’s services.
The Civil Code (Burgerlijk Wetboek) – (September 2003).
1) Under Dutch law is it possible to have a restraint of trade clause operating during the agency agreement and, if so, is it subject to any qualifications?
A non-competition clause can operate during the agency agreement and following the termination, subject to various conditions.
If no restraint of trade clause is included in the agency agreement, the commercial agent may compete with the principal during and after termination of the agreement. However, under certain circumstances the competition against the principal could constitute an unlawful act within the meaning of article 6:162 of the Civil Code. This article reads as follows:
To minimise the risk of legal conflicts, it is preferable to define what is allowed and what is seen as improper competition in the agency agreement. A restraint of trade clause which restricts the freedom of the commercial agent, is subject to the following restrictions (7:443 of the Civil Code):
The principal cannot derive rights from the restraint of trade clause when he terminates the agency agreement without the consent of the commercial agent, without giving notice and/or without urgent reasons that are stated immediately (art. 7:443 paragraph 3 section a Civil Code). In addition, when the commercial agent has terminated the agency agreement for urgent reasons that are immediately notified to the principal, and for which the principal is to blame (art. 7:443 paragraph 3 section b Civil Code), no rights can be derived from the restraint of trade clause. Finally, the principal cannot derive rights from the restraint of trade clause when the agency agreement is terminated by a court ruling based on circumstances for which the principal is to blame (art. 7:443 paragraph 3 section c Civil Code).
Even if the restraint of trade clause has expired accordingly and no problems regarding the termination occurred, the restraint of trade clause can be restricted by the Court (art. 7:443 paragraph 4 Civil Code). The Court has the authority to moderate the restraint of trade clause and to wholly or partially annul the clause at the request of the commercial agent if his interests are unreasonably damaged. To assess if the interests of the commercial agent are unreasonably damaged, the judge can give consideration to the possibility that the principal has to pay compensation for goodwill as referred to in article 7:442 Civil Code.
2) Under Dutch law is it possible to have a restraint of trade clause operating following the termination or expiry of the agency agreement and, if so, is it subject to any qualifications?
Article 20 of Council Directive 86/653/EEC was transposed into article 7:443 of the Civil Code, which reads as follows:
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