The law (Section 431 Book 7 of the Civil Code) determines that a commercial agent has the right to commission (brokerage) for agreements that come into effect during the agency contract. It must more specifically concern one of the following cases:
- An agreement that has come into effect by means of intervention (intermediary activities of) by the commercial agent.
- An agreement that has come into effect with someone who the commercial agent has earlier introduced for such an agreement (returning customer).
- An agreement that has been concluded between the principal and someone from the group of customers of the commercial agent or who is established in the territory allocated to the commercial agent (unless no exclusivity has been agreed).
Calculation of commission
In accordance with the law the principal is obliged to inform the commercial agent on a monthly basis of the commission owed. Another period can be agreed in the agency contract, for example every two or three months. The principal must state in the written statement the data, which the calculation of the commission is based on. There can be no derogation from the obligation to make this written statement (mandatory legal provision).
Right of inspection commercial agent or third party
In addition, the commercial agent has the right of inspection: if the commercial agent asks for this, the principal must give access to the documentary evidence related to the commission. For example, emails, orders and invoices. To be able to meet any objection of a principal against giving access, parties can also agree in writing that the commercial agent cannot examine the documents but a third party can. A duty of confidentiality is vested in the commercial agent as well as the third party with regard to the information read.
Remuneration in the event of declining orders
If the principal does not use the services of the commercial agent, or uses these less than the commercial agent could have expected, the commercial agent has in principle still the right to commission. This is conditional on that the commercial agent is prepared to fulfil the obligations under the agency contract, or has already fulfilled these. During the calculation of the remuneration the commissions received in the past will be taken into consideration.
Notional employment relationship with a ‘small’ commercial agent
Parties are in principle free to personally agree to the amount of the commission. One important exception applies hereby. If the commercial agent actually only intermediates for one client, the Minimum Wage and Minimum Holiday Allowance Act (Dutch WMM) can apply. A notional employment relationship between the principal and the commercial agent is assumed in that case. This is only at issue if the commercial agent is a natural person and is not assisted by more than two persons. Under these conditions the commercial agent can have the right to the minimum wage.