Upon termination of the agency agreement, the agent (provided that the termination is not attributable to himself) is entitled to compensation if he has brought new customers to the principal or has significantly expanded transactions with existing customers and the transactions with these customers still yield a significant benefit to the principal. All this to the extent that (the amount of) the compensation is fair. This claim amounts to a maximum of one year’s commission calculated on the basis of the average commission over the last five years.
A stumbling point nowadays is often the criterion that the transactions with these customers must still yield a considerable profit for the principal. Before establishing a customer fee, the agent must state and, if necessary, make it plausible that the principal will also be able in the future to make extensive use of the customer relations established and/or intensified by the agent. A judgment of the Court of Appeal in Arnhem-Leeuwarden shows that this is not (merely) a question of whether the customers have committed themselves to minimum purchasing obligations or have provided a turnover guarantee, but whether there are agreements of a lasting nature. It does not matter in this respect whether there are annual renegotiations with the customer. The court stated that renegotiation does not detract from the durability of customer relationships. However, as an agent it is useful to collect evidence that customers have indeed remained customers after the end of the agency relationship. Furthermore, it makes sense to submit evidence that all customer data has been transferred to the principal and also to ask the principal to submit evidence of the efforts it has made to continue to retain the customers it has brought in.
Want to know more? Please contact Annelies ten Hove, ath@tenhoveadvocatuur.com.
