The Directive was implemented into Dutch law by an Act of 1989.
A commercial agency agreement is defined as an agreement in which the principal instructs the commercial agent to perform, for a definite or indefinite period of time, intermediary services in concluding agreements. The 1989 Act does not apply if the Financial Supervision Act is applicable to the agency agreement.
An agency contract need not be in writing but each party is obliged to co-operate in drawing up a written contract if either party requests one.
The parties can choose which law governs the agency agreement, provided it is connected with the agreement. If the parties do not choose a particular law, the law of the country where the agent is established or in which he carries out his activities will apply. Generally speaking, parties cannot contract out of the mandatory rules implemented by the Directive - not even by choosing law from a non-EU country.
Dutch law does not allow the alteration of the legal compensation provisions to the detriment of the agent.
For agreements concluded after termination of the agency agreement, the agent is entitled to commission for the preparation of these agreements if:
these agreements owe their origin to the work of the commercial agent and have been concluded within a reasonable time after termination of the agency agreement; or
the order was placed before termination of the agency agreement and the agent is the one who solicited the party.
Indemnity or compensation on termination
The amount of an indemnity payment for goodwill is limited to one year's commission and is calculated by taking the average annual remuneration of the agent over the preceding five years. If the contract lasted for a shorter period, payment is calculated by the average remuneration earned by the agent for the entire duration of the contract. Any remuneration earned by the agent for performing supplemental services may also be taken into account as well as any remuneration earned by the agent in winning new customers. The agent must bring any claim for indemnity within one year of the termination of the agreement.
The agent may claim damages in addition to the goodwill indemnity if the principal has unlawfully terminated the agreement.
An indemnity payment for goodwill will not be awarded in the following instances:
if the principal has terminated the agency contract due to the agents misconduct;
if the agent himself has terminated the contract, unless such termination is justified by circumstances attributable to the principal, or by the agent’s age, infirmity or illness; or
if the agent terminated the contract by assigning the rights and duties under the contract to a third party with the consent of the principal.
Agency agreements under Dutch law are distinct from employment contracts, which are covered by employment law. Distribution agreements are not regulated by statutory law and can be freely contracted. However, the termination of distribution agreements may lead to similar liability of the principal on the basis of the rules of equity and fairness as developed in Dutch case law.
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