Commercial agency lawyer in the Netherlands
MAAK Advocaten advises principals and commercial agents on the drafting, performance and termination of commercial agency agreements under Dutch law. Commercial agency is one of the most heavily regulated commercial relationships in the Dutch Civil Code, and getting the legal framework right at the drafting stage, and the numbers right at the termination stage, is the difference between a clean exit and an expensive dispute.
The Dutch statutory regime for commercial agency is set out in articles 7:428 to 7:445 of the Dutch Civil Code (Burgerlijk Wetboek). These provisions implement EU Directive 86/653/EEC on self-employed commercial agents. The rules are, for the most part, mandatory: they cannot be contracted away to the detriment of the agent, and several of them have been held by the Court of Justice of the European Union to apply even where the parties have chosen a non-EU governing law, if the agent operates within the EU. For foreign principals appointing a commercial agent for a Dutch or EU territory, this protective regime is the single most important legal framework to understand.
This page explains what commercial agency is under Dutch law, what the statutory protections actually do, how the agent's goodwill indemnity on termination works in practice, and how MAAK Advocaten handles commercial agency matters for international clients.
What is a commercial agent under Dutch law
Article 7:428 of the Dutch Civil Code defines a commercial agency agreement as an agreement under which one party (the agent) undertakes, as a self-employed intermediary and for remuneration, to negotiate or conclude contracts on behalf of and for the account of the other party (the principal), for a fixed or indefinite period. The central characteristics are self-employment, intermediation, and continuity over time.
The commercial agent does not buy and resell. The agent acts in the name and for the account of the principal and earns commission on the transactions it introduces or concludes. That is the fundamental difference from a distributor, who trades in its own name and for its own account. Characterisation matters because the mandatory rules of Book 7, Title 7, Division 4 of the Dutch Civil Code apply only to commercial agents, not to distributors, and the statutory goodwill indemnity under article 7:442 is reserved for agents.
The rules apply regardless of whether the contract is called an "agency agreement". Dutch courts will look at the economic substance of the relationship, and a distribution contract that in substance operates as agency (for example, because the "distributor" has no real commercial risk and merely passes orders through to the principal) can be requalified as agency with all the consequences that flow from that.
The mandatory rules of Dutch commercial agency law
The statutory regime contains a series of protections for the commercial agent that cannot be contracted away. For a principal, understanding which rules are mandatory and which are default is the starting point of any drafting or termination exercise.
The most important mandatory rules in practice are:
- Minimum notice periods for termination under article 7:437 of the Dutch Civil Code: one month in the first year of the contract, two months in the second year, and three months in the third and subsequent years. These are minimum periods and can be extended by contract, but not reduced
- The goodwill indemnity on termination under article 7:442, which compensates the agent for new customers brought to the principal or for a substantial increase in business with existing customers, where continued benefit accrues to the principal after termination and payment of the indemnity is fair
- Entitlement to commission on orders brought in during the agency (article 7:431) and, in specified circumstances, on post-termination business (article 7:431(2))
- Information and accounting rights: the principal must provide the agent with information and statements of commission due on a regular basis (article 7:433)
- Restrictive covenants (non-compete clauses for after termination) are only valid if they are in writing, relate to the territory or customers entrusted to the agent, and last no more than two years after termination (article 7:443)
The Court of Justice of the European Union has held in the Ingmar case (Case C-381/98) that the mandatory nature of the goodwill indemnity protects agents operating within the EU even where the agency agreement is governed by the law of a non-EU country. The practical consequence is significant: a principal in the United States, United Kingdom (post-Brexit) or another non-EU jurisdiction that appoints a commercial agent for a Dutch or EU territory cannot escape the Dutch or EU goodwill indemnity by choosing US, UK or another foreign law. Article 7:442 applies regardless. This is the single most commonly overlooked rule in international agency drafting, and the point on which expensive mistakes are made.
The goodwill indemnity in Dutch practice
Article 7:442 of the Dutch Civil Code entitles the commercial agent, on termination of the agency, to a goodwill indemnity that reflects the value the agent has brought to the principal's business. The calculation is framed by the article itself, by EU case law on the underlying directive, and by a substantial body of Dutch case law that has refined the methodology over the past thirty years.
The statutory formula has three conditions. The agent must have brought the principal new customers, or significantly increased the volume of business with existing customers, such that the principal continues to derive substantial benefits from those relationships after termination. Payment of the indemnity must be fair, taking into account all the circumstances, including the commission lost by the agent on transactions with those customers. The indemnity is capped at one year's average remuneration, calculated over the last five years of the agency (or the full duration if shorter).
The practical calculation is where most disputes happen. Dutch courts have tended to follow the three-step approach developed for the goodwill indemnity under the EU Directive: first, calculate the commission that the agent would have earned in a forward-looking hypothetical continuation; second, apply a corrective fairness adjustment for factors such as the agent's responsibility for the termination, the agent's post-termination non-compete, or an undiminished commission during the agreement that already reflected goodwill; third, apply the one-year cap. The numbers can be substantial. For a long-running agency with a broad customer base, the indemnity can run to six or seven figures, and in some litigated cases more.
For principals, the practical consequence is that termination of an agency contract is not a decision to be taken without legal advice. For agents, the consequence is that the goodwill indemnity is a statutory right that does not depend on proving a breach and should be claimed actively on termination. We represent both sides of this equation, depending on the matter.
Drafting a commercial agency agreement under Dutch law
A commercial agency agreement under Dutch law is drafted within a narrower range than a distribution agreement, because many of the key terms are already fixed by the mandatory rules. The drafting exercise is about optimising within that range and about clearly recording the variables that can still be shaped.
The recurring drafting questions are:
- Scope: products, territory, customer groups, and exclusivity
- Commission: rate, basis (on concluded contracts or on executed contracts), treatment of returns, cancellations and bad debts, and advance payment structures
- Sales targets or minimum performance: whether the agent is subject to targets, and the consequences of failing to meet them
- Del credere obligations: whether the agent takes on any credit risk for customer payment (article 7:429)
- Duration and notice: fixed term, indefinite term, or rolling fixed-term with renewal, and notice periods in excess of the statutory minima where appropriate
- Post-termination non-compete: within the statutory limits of article 7:443
- Governing law and jurisdiction: noting that a choice of non-EU law does not escape the mandatory Dutch and EU rules for agents operating in the EU
For international principals appointing a Dutch agent, we draft to protect against the goodwill indemnity where possible (through clear commission structures, written non-competes within the statutory cap, and in limited circumstances a contractual right to reduce commission for new customers after a transition period) and to clarify how targets and post-termination obligations actually work.
Termination and disputes under Dutch agency law
Most of our agency work in practice is termination-related. Either the principal is planning to end a relationship and needs to understand the exposure before acting, or a principal has already served notice and the agent is claiming commission arrears, extended notice period compensation, and a goodwill indemnity, often all at once.
Our approach on these matters runs in three stages. First, a quick factual assessment: duration of the agency, commission history, customer base, and the circumstances of the termination. This drives the estimate of indemnity exposure using the goodwill calculation methodology. Second, a legal assessment: the applicable notice period, any grounds for termination for cause (which, under Dutch law, can eliminate the goodwill indemnity under article 7:442(4) where the termination is based on serious fault by the agent), and the interaction with the contract's specific terms. Third, a strategic recommendation: negotiate a settlement within a realistic range, or litigate if the numbers justify it. Most agency disputes settle, because the economics of litigation compared to the statutory cap rarely favour a full court fight on either side.
Where the matter does go to court, we litigate before Dutch District Courts and, where appropriate, the Netherlands Commercial Court (in English). Pre-judgment attachment of commission or goodwill claims is a real option and we use it where the economics justify securing the claim while litigation proceeds.
Our experience with commercial agency matters
In our practice we regularly advise both principals and commercial agents on agency matters. On the drafting side, we work with foreign principals appointing a commercial agent for a Dutch or EU territory, helping them build the commission structure, notice regime and post-contractual non-compete around the mandatory rules of articles 7:428 to 7:445 of the Dutch Civil Code. On the dispute side, we act in goodwill indemnity claims and termination disputes, where the practical work is usually a combination of legal analysis, commission reconstruction and commercial negotiation. The numbers involved in agency termination disputes are typically substantial, and the gap between the statutory starting point and a negotiated settlement is where most of the value is created.
Working with MAAK Advocaten on commercial agency
We act for both principals and commercial agents, depending on the matter, in English, German or Dutch. Fees are agreed in advance as described on our lawyer fees page: fixed fees for drafting and review mandates, hourly rates for negotiated terminations and disputes, hybrid arrangements where a defined scope makes sense. The commercial agency practice is led by Remko Roosjen.
If you are appointing a Dutch commercial agent, considering termination of an existing agency, or facing a goodwill indemnity claim, an initial conversation is at no charge. Read more about MAAK Advocaten.
Related terms in our legal dictionary: goodwill indemnity calculation, article 7:442 BW explained, agent commission, Ingmar ruling.
Related pages: Dutch contract law guide, distribution agreements, franchise agreements, termination of contract, international trade law firm.
Call +31 20 210 31 38, email mail@maakadvocaten.nl, or visit our contact page. MAAK Advocaten is based at Kraanspoor 34, 1033 SE Amsterdam.
Frequently Asked Questions
Can a foreign principal avoid the Dutch goodwill indemnity by choosing non-EU law?
How is the goodwill indemnity calculated in practice?
Is an agent who failed to meet sales targets entitled to a goodwill indemnity?
Dutch commercial agency lawyer
"Commercial agency is one of the areas where Dutch and EU law does exactly what it says: it protects the commercial agent. The goodwill indemnity under article 7:442 of the Dutch Civil Code and EU Directive 86/653 is mandatory, it applies even when the contract is governed by non-EU law, and for long-running agencies it can run into significant six-figure and sometimes seven-figure numbers.
For principals, my role is to build that reality into the drafting, the commission structure and the termination strategy before a problem arises. For agents, my role is to make sure the statutory rights are claimed properly and that the indemnity calculation reflects what the agency was actually worth.
I act for both sides depending on the matter, in English, German or Dutch."
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Last reviewed: April 15, 2026 by MAAK Advocaten N.V.