CJEU: order for costs against consumer remains possible after annulment of a costs clause Posted on 14 October 202614 October 2026 by Joost Van der Grinten The Court of Justice of the European Union (hereinafter: “CJEU”) held in its judgment of 1 October 2026 (Case C‑459/25) that even where an unfair costs clause has been annulled, the court may still order the consumer who loses the case to pay the costs of the proceedings on the basis of Article 237 of the Dutch Code of Civil Procedure (“Rv”).This judgment follows a request for a preliminary ruling from the Dutch Supreme Court (Hoge Raad) in its judgment of 23 May 2025 (ECLI:NL:HR:2025:820). In that judgment, the Supreme Court held that a costs clause in an agreement with a consumer must, in general, be regarded as an unfair term. We wrote a blog about that judgment on 17 June 2025. In the same judgment, the Supreme Court referred the preliminary question of whether, after an unfair costs clause has been annulled, the court can still order the consumer who loses the case to pay the costs of proceedings on the basis of Article 237 Rv.In this blog we discuss the Supreme Court’s preliminary question, the CJEU’s answer, and what this decision means for everyday practice.Legal framework: Articles 237 and 242 RvArticle 237(1) Rv provides that the party who loses the case by judgment is ordered to pay the costs of the proceedings.Pursuant to Article 242(1) Rv, the court may of its own motion reduce amounts that can be deemed to have been agreed as compensation for costs of proceedings, but not below the amount of the costs of proceedings to be assessed on the basis of the law.The case: Lieven de Key tenancy agreement and costs clauseThe case concerns a tenancy agreement for a parking space between housing association Stichting Woonstichting Lieven de Key (hereinafter: “LdK“) and a consumer-tenant (hereinafter: the “Consumer“).Article 11.1 of the tenancy agreement concluded between LdK and the Consumer provides that all costs incurred for the performance of this agreement, including all costs of proceedings and extrajudicial costs incurred by the landlord, are to be borne by the tenant in the event of non-performance by the tenant of any provision of this agreement or of the law.LdK claimed before the subdistrict court (kantonrechter), among other things, dissolution of the tenancy agreement, eviction, payment of extrajudicial costs and costs of proceedings.The subdistrict court held that Article 11.1 of the tenancy agreement was unfair insofar as it related to the extrajudicial costs. For the part of the clause relating to the judicial costs (the costs clause), the subdistrict court referred preliminary questions to the Supreme Court.Supreme Court: costs clause in a consumer agreement is unfairBy judgment of 23 May 2025 (ECLI:NL:HR:2025:820), the Supreme Court answered that the costs clause undermines the consumer’s position by removing the limitation inherent in the statutory system governing orders for costs of proceedings, and is therefore unfair.With regard to the question whether, after the unfair costs clause has been struck out, an order for costs of proceedings can still be made on the basis of Article 237 Rv, the Supreme Court itself referred a preliminary question to the CJEU. The CJEU reformulated that question as follows:“Where a seller includes an unfair legal costs clause in a contract and the contract is capable of continuing in existence after the deletion of the legal costs clause, must Articles 6(1), 7(1) and 8b of Directive 93/13 be interpreted as precluding a consumer who is unsuccessful in legal proceedings from being ordered to pay the seller’s legal costs in accordance with national procedural law, from which the unfair legal costs clause deviated to the detriment of the consumer?”CJEU’s answer: order for costs of proceedings remains possible after annulment of the clauseOn 1 October 2026 (Case C‑459/25), the CJEU answered that the Unfair Contract Terms Directive does not preclude the court, even after an unfair costs clause has been annulled, from ordering the consumer who loses the case to pay the costs of proceedings in accordance with Article 237 Rv:“Article 6(1) and Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, as amended by Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019, read in the light of the principle of effectiveness, must be interpreted as meaning that, where a contractual clause requiring a consumer to pay all the legal costs relating to proceedings resulting from his or her failure to fulfil one of his or her obligations arising under a lease agreement or imposed by law has been declared unfair and, consequently, void, but the agreement in question is nonetheless capable of continuing in existence without that clause, those provisions do not preclude that consumer, who is unsuccessful in judicial proceedings, from being ordered to pay the costs in accordance with the national procedural law governing the allocation and taxation of costs.”Core reasoning of the CJEU: Article 237 Rv is not supplementary lawThe CJEU’s reasoning can be briefly summarised as follows.The starting point is that the national court may not replace an unfair term with a national provision of supplementary law if the contract can continue to exist without that term. This prohibition on replacement is intended to safeguard the long-term objective of Article 7 of the Directive: maintaining the deterrent effect that results from unfair terms simply not being applied.Article 237(1) Rv, together with the associated scale of costs (liquidatietarief), does not constitute a “national provision of supplementary law” within the meaning of the Directive. Article 237(1) Rv does not govern the relations between the parties to a contract, nor does it reflect the contractual balance; it is addressed exclusively to the national court. The prohibition on replacement therefore does not preclude the court from ordering the consumer to pay the costs of proceedings: the court is not replacing the unfair term with supplementary contract law, but is exercising its own procedural competence.According to the CJEU, Article 237 Rv is not contrary to the principle of effectiveness, because it does not substantially discourage the consumer from exercising his rights.Consequences for landlords and users of standard termsThis judgment is good news for landlords and other users of standard terms and conditions. Many tenancy agreements and sets of standard terms contain a costs clause. If the annulment of that clause were to result in the consumer no longer being ordered to pay the costs of proceedings, this would have major financial consequences for landlords and other users.Wieringa AdvocatenDo you have questions in response to the above, or would you like to have your standard terms and conditions reviewed for unfair terms? Please feel free to get in touch. We would be glad to assist you.
Changing terms and conditions of employment: when is an employer permitted to do so? Posted on 24 September 202624 September 2026 by Charlotte Urlus Sooner or later, every employer runs into it: the need to change an employee’s terms of employment. A different work schedule, an adjusted role, the removal of a bonus, or a mandatory return to the office. But what can an employer change unilaterally, and when is the employee’s consent required? In this blog, we explain how to approach a change to employment terms in a legally sound way under Dutch law.The starting point: employee consent is requiredUnder Dutch employment law, the basic rule is that an employment contract cannot be amended unilaterally. Employment terms are agreements between employer and employee and changing them generally requires the employee’s consent. This applies to primary terms such as salary, working hours and holiday entitlement, but equally to secondary terms such as a company car or a bonus scheme.If an employer changes an employment term without consent, there is a risk that the employee will later challenge that change. A Dutch court can then restore the original agreement, in some cases with retroactive effect.The unilateral amendment clauseAn exception applies if the employment contract contains a so-called unilateral amendment clause (Section 7:613 of the Dutch Civil Code). This is a written clause that gives the employer the right to unilaterally amend the employment terms. Even then, however, the employer cannot simply rely on it at will. The bar is set high: the employer must be able to demonstrate a compelling business interest that justifies the change. A reorganisation or a fundamental change in business operations may qualify as such an interest, but cost-cutting alone is generally not sufficient.The standard of good employershipIf the employment contract does not include an amendment clause, the employee is in principle not obliged to agree to a change. Even so, under Section 7:611 of the Dutch Civil Code, the statutory standard of good employership, an employee may in certain circumstances be required to accept a reasonable proposal to amend the terms. The Dutch Supreme Court has developed a test for this. Are there changed circumstances in the workplace that give rise to the proposal, is the proposal itself reasonable, and can acceptance reasonably be required of the employee?In practice, this comes down to a balancing of interests. A significant deterioration of employment terms is less likely to be considered reasonable than a minor adjustment to working hours. The greater the impact on the employee, the stronger the justification must be.Practical tips for employersInclude a unilateral amendment clause when drafting the employment contract, rather than only once it becomes necessary. This gives the employer the legal room to make changes later, provided a compelling business interest exists at that time.Always obtain consent in writing. A verbal agreement is difficult to prove and will not hold up in a later dispute. Record the change, the reason for it, and the effective date in an addendum to the employment contract.Communicate early and transparently. Explain why the change is necessary and what its consequences are for the employee. Employees are far more likely to accept a change once they understand why it is needed.Offer a transition period where appropriate. Particularly for significant changes, a reasonable transition period demonstrates good employership and reduces the likelihood of legal proceedings.Involve the works council in good time. For collective changes, the works council may have a right of consent under the Dutch Works Councils Act (Wet op de ondernemingsraden). Do not skip this step: a decision taken without the required consent can be annulled.In shortChanging employment terms is not simply a matter of sending an email and moving on. With the right preparation, clear communication and proper documentation, employers can prevent disputes further down the line and demonstrate that they are acting diligently. Are you unsure whether a proposed change would hold up legally, or would you like an amendment clause or addendum drafted that actually stands firm? Get in touch. We are happy to think this through with you and make sure you are not faced with unwelcome surprises later on.And naturally, the same applies in the other direction: if you are an employee facing a proposed change to your employment terms and are wondering whether you are required to agree to it, we are of course glad to assist you as well.
The legal status of shareholders (and the shareholders’ meeting) under the WHOA Posted on 23 September 202623 September 2026 by Michelle Sangers Is a company at risk of becoming insolvent due to an excessive debt burden, even though its operations are viable in themselves? If so, the Act on the Approval of Private Arrangements (WHOA) offers a solution. This Act makes it possible to enforce a financial restructuring between the company, its creditors and shareholders by means of a compulsory arrangement. The aim of the WHOA is to strengthen companies’ ability to reorganise and to preserve or maximise value.A WHOA can have far-reaching consequences. For example, it can alter the company’s entire capital structure and may even result in adjustments to future obligations arising from existing contracts. For shareholders, this raises a logical question: what rights and powers do I actually have once a WHOA process is underway?What are the powers of the general meeting during WHOA proceedings?During the WHOA proceedings, the general meeting retains its powers and remains bound to act in a reasonable and equitable manner. In practical terms, this means that the general meeting retains, amongst other things, the power to dismiss directors and supervisory directors, to amend the company’s articles of association and to wind up the company.Nevertheless, the WHOA imposes a significant restriction on the powers of the general meeting where the conclusion of the agreement itself is concerned. This is because the General Meeting’s approval is not required for the proposal of an agreement, even if the articles of association or a shareholders’ agreement stipulate otherwise. Such statutory or contractual approval requirements do not apply.If the implementation of an agreement requires a resolution by the general meeting, the approved agreement takes the place of that resolution. The general meeting is therefore not required to give separate approval for implementing measures arising from the agreement.What powers do individual shareholders have during WHOA proceedings?The WHOA also applies at the level of the individual shareholder. As the company’s financial difficulties justify it, an arrangement may (significantly) alter shareholders’ rights. If a shareholder is affected by the agreement, they are entitled to vote: they may vote on the agreement and must receive all the information necessary to make an informed decision. Shareholders entitled to vote are then also bound by the agreement. Please note: not every shareholder is automatically included in the agreement. The proposer (the company or a restructuring expert) may choose to exclude certain shareholders from the agreement, and thus leave their rights unchanged, provided there are reasonable grounds for doing so or if classes of shareholders with an equal or higher ranking (indirectly) consent to this.Protection of shareholders’ interestsThe court may (of its own motion or at the request of the company or the restructuring expert) grant interim relief or make such orders as are necessary to safeguard the interests of shareholders.Shareholders themselves have relatively few means of protecting their interests during the arrangement procedure. For example, they cannot take legal action against a cooling-off period.So what can shareholders actually do?They may ask the court to appoint a restructuring expert who can propose a settlement themselves – even if the board is already drawing up a settlement.They may make use of opportunities for the parties to be heard that arise as soon as the judge becomes involved in the proceedings prior to the confirmation of the arrangement.They may apply to the court to have the application for confirmation dismissed if they voted against the arrangement or were wrongly excluded from the vote.Consequences of the ratification (declaration of binding effect) of the agreement for shareholdersIf the agreement is ratified (declared binding), it will be binding on all shareholders entitled to vote. Not only are shareholders who have consented to a change in their rights or claims bound by it, but also those who voted against, abstained or cast a blank vote. Shareholders who were not present at the vote but who were duly summoned are also bound by it. If, after ratification, there are still assets available for distribution, shareholders will generally be at the back of the queue.Are you a shareholder involved in a WHOA process?Are you a shareholder involved in a WHOA and would you like specific advice on your situation? Please do not hesitate to contact us.Want to read more? See also the other posts in this blog series: the legal status of the governing bodies of private limited companies facing financial difficulties.
Does the Cybersecurity Act (NIS2) apply to my business? Posted on 18 August 2026 by Victor Bouman It will probably not have escaped your attention: last weekend, the Cybersecurity Act came into force, the Dutch implementation of the European NIS2 Directive. The Act introduces various duties of care and reporting obligations. Among other things, organisations are required to take measures to manage digital security risks, for example by drawing up appropriate security policies, establishing business continuity plans and raising staff awareness of security risks. In the event of serious incidents, such as a hack or data breach, reporting obligations apply. Companies must report incidents to the CSIRT (the Minister of Justice and Security) and the relevant supervisory authority. The law designates a supervisory authority for each sector. Depending on the type of incident, notification to affected customers may be mandatory.The Cybersecurity Act does not apply to all businesses, and even where the Act does apply, not all obligations necessarily apply. Whether the Cybersecurity Act applies to you depends on a number of factors, which we set out step by step below. Once you have worked through this step-by-step guide, you will have an idea of whether the Act applies to you. For a definitive answer, please do not hesitate to contact us.Step 1: Where is your business based?In principle, the Cybersecurity Act applies only to companies that have an establishment in the Netherlands and provide services or carry out activities within the European Union. If you are based outside the Netherlands, the Dutch Act therefore does not apply. However, the implementation of the NIS2 Directive in your country of establishment may well apply. There is one exception: the Act applies to providers of public electronic communications networks or communications services as soon as they offer services in the Netherlands, even if they are not established here.For many ICT companies, the law applies only if they have their head office (i.e. the place where decisions on cybersecurity measures are taken) in the Netherlands.Step 2: businesses to which the law always appliesDo you provide trust services or domain name registration services? Or are you the administrator of a top-level domain name registry (such as SIDN), a DNS service provider, a provider of public electronic communications networks, a provider of public electronic communications services, or a public authority? If so, the Act definitely applies to you. Depending on the size of your business, some aspects may be exempt.The Cybersecurity Act also applies if your company has been designated by the competent minister as a critical, essential or important entity. The minister may decide to do so, for example, if your company is the sole provider of a key service, or if a disruption to the service you provide would have a major impact on public life. No minister has yet made use of this option.Step 3: businesses to which the law applies subject to certain conditionsThe Cybersecurity Act may apply to the following types of organisations:ICT service providers, such as SaaS providers, data centres, workplace management providers, DNS service providers and online platforms;energy companies, such as electricity suppliers, network operators and refineries;other utility companies, such as water treatment companies, heating companies and waste management companies;logistics companies, in both passenger and freight transport, such as postal services, railway companies, inland waterway transport companies and ports;manufacturing industry, including producers of chemicals, electronics, foodstuffs and transport equipment;financial firms, such as credit institutions and trading platforms;healthcare organisations, including healthcare providers and manufacturers of medical devices;commercial research organisations (R&D).If your business does not fall into one of these categories, the Cybersecurity Act is unlikely to apply.For most of the companies mentioned above, the law applies only if they are at least ‘medium-sized’. The law uses the European definition for this: a company is considered medium-sized if it employs more than fifty people, or if its annual turnover or balance sheet total exceeds €10 million. That threshold is therefore not particularly high, meaning the law will apply to many companies.In conclusionWhether the Cybersecurity Act applies to your business depends on several factors: the sector in which you operate, the size of your business and the nature of your activities. The step-by-step guide above provides an initial indication, but in practice, of course, things are more complex. Would you like more certainty as to whether the Act applies to you, or do you have any questions about the steps you need to take to comply with the duty of care and reporting obligations? Please feel free to contact us; we’d be happy to help you work through this.
Dismissal of a director appointed by the articles of association: from the decision to fair compensation Posted on 12 August 2026 by Iris Taling A director appointed by the articles of association wears two hats: that of a director of the company and that of an employee under an employment contract. Upon dismissal, these two roles converge, which can sometimes make the situation complex. In this blog, we set out the legal framework: the main rule from the 15 April judgements, reasonable grounds, fair compensation and the steps required for the careful dismissal of a director.The 15 April judgementsThe starting point for any dismissal of a director is the so-called 15 April judgements (Supreme Court 15 April 2005 (Bartelink) and Supreme Court 15 April 2005 (Unidek). In these judgments, the Supreme Court formulated a general rule: in principle, a decision to dismiss a director under company law also results in the termination of the employment relationship under labour law. The decision to dismiss therefore automatically implies the termination of the employment contract, even if this is not explicitly stated in the decision.No prior reviewUnlike in the case of ordinary employees, a director of a BV or NV is not subject to a prior review of the dismissal by the UWV or the subdistrict court. This follows from Section 7:671(1)(e) of the Dutch Civil Code: the employer may terminate the employment contract without the employee’s written consent if the termination concerns a director of a legal person for whom reinstatement of the employment contract is not possible under Book 2 of the Dutch Civil Code. Section 2:244(3) of the Dutch Civil Code confirms this: the court cannot order the reinstatement of the employment contract between the company and the director. The director can therefore always be dismissed.However, the fact that there is no preventive review does not mean that an employer does not need to have reasonable grounds.Reasonable grounds remain requiredAlthough the director does not enjoy any preventive protection, the employer must still have reasonable grounds for the dismissal within the meaning of Article 7:669(3) of the Dutch Civil Code. The Act lists the recognised grounds for dismissal: commercial reasons (ground a), poor performance (ground d), culpable conduct (ground e), a disrupted working relationship (ground g), the residual ground (ground h) and the cumulative ground (ground i).Example: difference of opinionThe most common ground for directors is ground h: other circumstances such that the employer cannot reasonably be expected to allow the employment contract to continue. In practice, this is interpreted as a difference of opinion regarding the policy to be pursued. But what exactly must an employer demonstrate?The circumstances must be of such gravity – for example, an irreconcilable difference of opinion – that the employer cannot reasonably be expected to allow the employment contract to continue (ECLI:NL:RBOBR:2026:864).A director must have been addressed regarding the difference of opinion in advance. The employer is required to make it clear during a meeting that a difference of opinion is likely to arise and that, if it persists, this will have consequences for the employment relationship. Furthermore, the difference must actually relate to policy and not to the director’s performance. In the latter case, the ‘d’ ground applies, for which different and more stringent requirements apply.The obligation to redeployThe obligation to redeploy also applies in full to the director. In practice, it is often quickly assumed that redeployment is ‘not reasonable’, but this requires substantiation. Only in the event of culpable conduct on the part of the employee (ground ‘e’) is redeployment unequivocally not required.The bill: fair compensationIf it subsequently transpires that the dismissal lacked reasonable grounds or that the employer acted with serious culpability, the director may claim fair compensation under Article 7:682(3) of the Dutch Civil Code. In a previous blog, we discussed a case in which the fair compensation amounted to €759,264 gross – on top of a transition payment of over €250,000.In addition, the director – just like any other employee – is entitled to the statutory transition payment upon dismissal, unless he himself has acted in a seriously culpable manner.The criteria set out in the ‘New Hairstyle’ judgment (Supreme Court 30 June 2017, ECLI:NL:HR:2017:1187) apply to the assessment of fair compensation. In that judgment, the Supreme Court ruled that, when assessing the compensation, the court may take into account the consequences of the dismissal, insofar as these are attributable to the employer’s fault.Specifically, the court considers, amongst other things: how long would the employment contract have continued had the employer acted correctly? What is the loss of earnings over that period? Has the employee since found other work? And what is the transition payment that has already been paid?The equitable compensation is expressly not punitive in nature – it is intended as compensation for the employer’s seriously culpable conduct.The steps: how do you go about it?Based on the legal requirements and established practice, the following steps can be taken to proceed with the dismissal of a statutory director:1. Preparation: Determine the grounds for dismissal and the reasons for it. Prepare the dismissal decision, setting out all relevant facts and circumstances. Carry out a redeployment assessment and record the findings. Prepare a termination agreement, if applicable, as an alternative to unilateral dismissal.2. Notification. Notify the director in writing of the intended dismissal and invite him to cast his advisory vote (right to be consulted pursuant to Section 2:227(7) of the Dutch Civil Code). Allow him a reasonable period in which to respond. In doing so, also observe the formal notice requirements for the shareholders’ meeting: notice must be given at least eight days before the meeting, unless the articles of association prescribe a longer period, and the reason for the proposed dismissal must be clearly stated as an agenda item. If the period is too short or the notice lacks a statement of reasons, the dismissal decision is voidable. This in turn means that the termination of the employment contract based on that decision is also invalid.3. The meeting: Discuss the proposed decision in person with the director. Explain the grounds, discuss redeployment options and, where possible, make an offer for an amicable settlement. Bear in mind that a sick note submitted after this meeting may complicate further decision-making if no notice has yet been sent; by sending the notice before the meeting, the procedure will continue even if a sick note is submitted later.4. Negotiation or decision: Allow the director scope to negotiate a severance package. If this proves unsuccessful, the shareholders’ meeting (or the competent body) will take the formal decision to dismiss the director.5. Implementation: The directorship ends immediately upon the decision to dismiss. The employment contract continues until the end of the notice period. As a rule, the director assists with their own deregistration from the Chamber of Commerce (using DigiD), after which the company registers the successor director.Practical tip: the resolution to remove a directorA common mistake is to draft the resolution to remove a director too briefly. Some courts refuse to accept new grounds for dismissal retrospectively if these were not included in the original resolution. Incidentally, this applies right from the notice of meeting: the reason for the proposed dismissal must be clearly stated in the notice of meeting itself, not just in the resolution. You should therefore always include the full factual basis and the specific grounds for dismissal, both in the notice of meeting and in the resolution itself.In conclusionThe dismissal of a statutory director involves many points requiring attention. Should you have any questions on this matter, please do not hesitate to contact us.
Assignment of claims and the requirement for specificity: the Supreme Court on the (insufficiently) generic description in the deed of assignment Posted on 12 August 202612 August 2026 by Joost Van der Grinten On 3 July 2026, the Dutch Supreme Court issue an interesting judgment concerning the requirement for specificity in the assignment of claims (ECLI:NL:HR:2026:1148). The Supreme Court confirmed that it must be possible to determine retrospectively, on the basis of objective evidence, which claims have been assigned. Witness statements regarding the assignor’s subjective knowledge are not, in themselves, sufficient for this purpose. The Court of Appeal ruled that the description‘claims (…) in so far as these are known to [the assignor] and could reasonably be known to him’ does not satisfy the requirement of specificity. The Supreme Court ruled that this judgment of the Court of Appeal does not demonstrate an error of law.The factsThe present proceedings are what are known as ‘renvooi’ proceedings: proceedings that follow the contestation of a claim at a verification hearing in insolvency proceedings.Triskalion B.V. (hereinafter:”Triskalion“) was declared bankrupt by a court order dated 5 January 2021. Triskalion had previously been declared bankrupt. That bankruptcy was discharged due to a lack of assets. Following the receipt of a subsequent asset, the liquidation proceedings were reopened, after which a new application for Triskalion’s bankruptcy was filed. The director of Triskalion (hereinafter: the “Director”) is married (the Director’s wife is hereinafter: the “Spouse“).The Director was declared bankrupt on 17 September 2015. On 7 August 2017, the liquidator in the Director’s bankruptcy entered into a ‘settlement agreement and deed of transfer/assignment’ (hereinafter: the “Deed of Assignment“) with the Spouse. The Deed of Assignment states, amongst other things:“The liquidator transfers ownership of all remaining assets and claims of the debtor, insofar as these are known to him and could reasonably be known to him, including, in any event, the claim which the liquidator believes he has against Robi House II B.V.”Triskalion was (once again) declared bankrupt on 5 January 2021. The Spouse subsequently lodged two claims for verification in the Triskalion bankruptcy proceedings: a claim for planning compensation of € 2,450,000 and a pension claim of € 725,922, arguing that these claims had been assigned to her by the Deed of Assignment of 7 August 2017. Cumberland Investments, a provisionally recognised creditor in the Triskalion insolvency, contested these claims. This led to the present referral proceedings.The definiteness requirementThe present proceedings essentially concern the scope of the requirement for specificity in the Deed of Assignment (and pledging) of claims. Under Article 3:84(1) of the Dutch Civil Code, the transfer of an asset (including a claim) requires: “a transfer by virtue of a valid title, effected by the person authorised to dispose of the asset.” Pursuant to Article 3:84(2) of the Dutch Civil Code, the title must“describe the asset with sufficient specificity”.In the case of the transfer of registered claims (assignment), the transfer is effected by means of a deed drawn up for that purpose and notification to the debtor, or by means of an authentic or registered private deed drawn up for that purpose without notification (Section 3:94(1) and (3) of the Dutch Civil Code).It is established case law that the requirement for specificity must not be interpreted too strictly. In the landmark judgment in Stichting Spaarbank Rivierenland v Gispen q.q. (Supreme Court 14 October 1994, ECLI:NL:HR:1994:ZC1488), the Supreme Court held that the claim need not be specified in the deed itself by stating details such as the debtor’s name or an invoice number. It is sufficient for the deed to contain such information that, if necessary at a later date, it can be determined on that basis which claim is at issue.In practice, a generic description in a deed of assignment (such as ‘all claims against third parties’) is also common. It is sufficient for the deed to refer to objective criteria on the basis of which it can be determined retrospectively which claims are concerned. An objective criterion applies here: the subjective intention of the parties is irrelevant for the purpose of assessing whether the requirement of specificity has been met, in so far as that intention cannot be determined on the basis of information contained in the deed itself (Supreme Court 22 November 2019, ECLI:NL:HR:2019:1841).The Court of Appeal’s ruling: not sufficiently specifiedIn the present proceedings, the Court of Appeal ruled that the claims to be assigned were not sufficiently specified in the Deed of Assignment. The Court of Appeal considered that, in this case, the description was not purely generic in the sense that ‘all’ claims were being assigned. After all, the assignment was limited to those claims of which the liquidator was aware or could reasonably have been aware.Furthermore, the Deed of Assignment contained no reference to objective evidence on the basis of which it could be determined which claims (apart from the claim against Robi House II B.V.) had been assigned. The Spouose referred to Triskalion’s annual accounts, an email and a bankruptcy report, but the Court of Appeal ruled that it did not follow from those documents that the liquidator was aware of the Director’s specific claims against Triskalion at the time of the assignment.The court ultimately rejected the Spouse’s offer of evidence (the examination of the trustee as a witness) and held in this regard that the fact that witnesses establish whether the trustee was aware of the claims at the time of the assignment does not constitute objective evidence on the basis of which the specificity can be established.The court concludes that the claims have not been transferred to the Spouse.The Supreme Court’s ruling: the Court of Appeal was entitled to reach that conclusionThe Spouse is appealing to the Supreme Court. She complains, amongst other things, that the Court of Appeal’s judgment reflects an overly strict, or at least incorrect, standard for the requirement of specificity, or is otherwise incomprehensible or insufficiently reasoned. She argues that a claim is sufficiently objectively defined, even retrospectively, if, following the hearing of the liquidator, it is established that the liquidator was aware of the claim, or could have been aware of it, at the time of the assignment.The Supreme Court clearly sets out the requirement of specificity:“3.2 The transfer of property requires delivery pursuant to a valid title, effected by the person authorised to dispose of the property (Section 3:84(1) of the Dutch Civil Code). The title must describe the property with sufficient specificity (Section 3:84(2) of the Dutch Civil Code). This requirement of sufficient specificity (hereinafter: the specificity requirement) must not be interpreted strictly.4 It is left to the discretion of the court to determine the degree of specificity required.5 According to established case law, for the assignment or pledging of registered claims, it is necessary – but also sufficient – that the deed contains such details that, if necessary at a later date, the claims in question can be identified on the basis of objective information.6 The question of how specific the details must be must be answered on the basis of the circumstances of the case.7 A generic description of the claims to be assigned may result in a valid assignment if, on the basis of the description provided, it is possible to determine which claims have been assigned. The absence of further specifications regarding the claims in question need not therefore prevent them from being sufficiently specific within the meaning of Article 3:84(2) of the Dutch Civil Code.8“The Supreme Court then assesses whether the Court of Appeal was entitled to reach its decision:“3.3 In this case, the parties to the assignment described the claims to be transferred by the liquidator in the bankruptcy of [the Director] as ‘claims (…) in so far as these are known to [the liquidator in the bankruptcy of [the Director]] and of which he could reasonably be aware’ (…). The Court of Appeal’s ruling effectively holds that such a description does not automatically satisfy the requirement of specificity, and that it is necessary for the trustee in the bankruptcy of [the Director] of the claims to be transferred can be established on the basis of objective evidence. That ruling, particularly in the light of the considerations set out in 3.2 above, does not indicate an error of law. In the Court of Appeal’s view, [the Spouse] has not adduced any, or at least insufficient, objective evidence on the basis of which the insolvency practitioner’s knowledge, in the insolvency of [the Director], of the claims to be transferred can be established. That finding is not incomprehensible in the light of the documents before the court. In the absence of sufficient arguments on this point, the Court of Appeal was not required to allow [the Spouse] to adduce evidence of the insolvency practitioner’s knowledge of the claims in the insolvency proceedings of [the Director].”The Supreme Court dismisses the appeal.Practical relevanceThis judgment is of importance to anyone involved in the assignment of claims: not only sellers and buyers of claims, but also lenders who stipulate a charge over claims, creditors wishing to attach claims, and others.If the claim to be assigned is not sufficiently specified, it is not transferred upon assignment, with all the consequences that entails. This judgement underlines the importance of careful documentation in the event of assignment and pledging.Wieringa Advocaten is happy to be of serviceDo you have any questions regarding the above, such as assignment, the requirement for specificity or the transfer of claims? Wieringa Advocaten has extensive experience in property law, the transfer of claims and disputes arising from insolvency. Please do not hesitate to contact us. We would be delighted to assist you!
Dismissal Without Valid Grounds: Employer Ordered to Pay More Than €1 Million Posted on 28 July 202628 July 2026 by Charlotte Urlus An employee who has worked for the same company for more than 22 years built an impressive career. He rose through the ranks to become Senior Counsel International, overseeing all legal and security matters outside the United States, and was appointed as a statutory director in 2017. Over time, however, his role was gradually stripped of its responsibilities. When the employer eventually dismissed him on grounds that did not withstand judicial scrutiny, the result was an expensive legal battle. In March 2026, the Amsterdam Court of Appeal awarded him a fair compensation payment of €759,264 (gross).From senior executive to an empty roleThe employee joined the company in 2002. Twenty years later, he had become Senior Counsel International and a statutory director. A series of reorganizations then fundamentally changed his position. More responsibilities were transferred to the United States, and his direct reporting line to senior management disappeared. By the final reorganisation in 2024, little remained of his original role.The relationship between the parties deteriorated. They negotiated a severance package but failed to reach an agreement. Instead, the employer decided to dismiss him. The employer relied on six different grounds, including the alleged misuse of confidential information and obstruction of an internal investigation. On 30 September 2024, he was removed as a statutory director. This also brought his employment contract to an end with effect from 1 February 2025.Why is the dismissal of a statutory director different?Under Dutch law, a statutory director has a dual legal position. He or she is both a director under company law and an employee under employment law. From a corporate law perspective, dismissal is relatively straightforward. The shareholders’ meeting that appointed the director may also remove that director, without the preventive dismissal protection that applies to most employees.That does not mean, however, that an employer can dismiss a statutory director without consequences. If there is no reasonable ground for dismissal under employment law, the director may still be entitled to statutory transition compensation. Where the employer has acted with serious culpability, the court may award the employee an additional amount of fair compensation. This case demonstrates how substantial those financial consequences can be.. (Would you like to know more about the legal position of a director appointed by the articles of association? If so, please see the following blog: Director appointed by the articles of association or titular director?)The courts’ assessmentThe employee challenged the dismissal before the courts and was successful. It was ruleed that no reasonable ground for dismissal existed and that the employer had acted in a seriously culpable manner. It therefore awarded fair compensation of €500,000 gross. Both parties appealed.The Court of Appeal (ECLI:NL:GHAMS:2026:893) assessed the case on the basis of an ex tunc test. This mean only the facts and circumstances at the time of the dismissal are relevant. . It concluded that those facts did not constitute a valid dismissal ground.Importantly, the Court emphasized that statutory directors are not subject to a lower threshold for dismissal. They are equally entitled to protection under Dutch employment law, including the requirement that the employer acts as a good employer. According to the Court, the employer had allowed the conflict to escalate. Once negotiations over a severance arrangement reached a deadlock, it failed to take the employee’s concerns about the reorganizations seriously or to explore alternative solutions.The employer also overreacted to the employee’s external speaking engagements. They demanded extensive explanations about events he had attended and even threatened financial penalties. Even though he had represented the company at conferences for more than twenty years without ever needing prior approval.In addition, the employer refused mediation, conducted an internal investigation in a careless manner without sharing its findings with the employee, and ultimately relied on dismissal grounds that proved unsustainable. Taken together, the Court considered this to amount to seriously culpable conduct.The bill: €759,264 grossWhen calculating the amount of fair compensation, the Court followed the principles established by the Dutch Supreme Court in the landmark New Hairstyle judgment. The Court assumed that, had the employer acted properly, the employment relationship would have continued for approximately another ten months. Mediation would have taken place, the parties would have continued discussions, and the employment contract would not have ended until 1 December 2025.The employee’s loss of income over that period amounted to €556,284 gross, including approximately €24,000 in pension contributions. In addition, the Court awarded €245,980 for the loss of shares and stock options. Unemployment benefits received during the same period were deducted. The resulting fair compensation amounted to €759,264 gross. Together with the statutory transition payment of €251,784 that had already been paid, the employer’s total financial exposure exceeded €1 million.What can you learn from this?This judgment confirms that, even where a statutory director can be removed relatively easily under company law, Dutch employment law continues to impose important safeguards. Employers must have reasonable ground for dismissal and must act as a good employer throughout the process.Simply relying on multiple dismissal grounds will not suffice if those grounds cannot be substantiated. Where a role has gradually been hollowed out and negotiations over a departure have stalled, careful handling of the situation is essential. Escalating the conflict, refusing mediation and conducting an inadequate internal investigation may ultimately prove far more expensive than resolving the dispute properly.
The duty of care towards minority shareholders: when does it arise and how far does it extend? Posted on 24 July 202624 July 2026 by Michelle Sangers Minority shareholders often find themselves in a vulnerable position. They have limited control, are dependent on the board for information, and cannot adjust policy on their own. This raises the question: is there a duty of care towards minority shareholders, and if so, how far does it extend?Article 2:8 of the Dutch Civil Code as the basisThe main source of protection for minority shareholders is based on the principles of reasonableness and fairness set out in Article 2:8 of the Dutch Civil Code. This article stipulates that a legal entity and those involved in its organisation by virtue of the law and the articles of association must conduct themselves towards one another in accordance with the principles of reasonableness and fairness. In the case law of the Enterprise Chamber, a duty of care towards minority shareholders has been developed on the basis of this standard.It is important to note that the mere fact that a party is a minority shareholder does not in itself mean that a duty of care must be observed towards it. There must be more to it than that.When does a duty of care arise?The Enterprise Chamber tends to assume a duty of care in the case of private arrangements (joint ventures or family businesses) and in so-called ‘uneven relationships’. Examples include situations involving information asymmetry or where the majority shareholder is also a director, whilst the minority shareholder is left in the dark and is unsure of what is going on.The duty of care may carry greater weight if the minority shareholder and the majority shareholder are in direct opposition to one another, or if there is a genuine risk of a conflict of interest on the part of the board.Transparency as a core obligationAs a general rule, the company must always maintain a high degree of transparency towards minority shareholders, so that they are able to ascertain their legal position.In the case of family-owned companies or joint ventures where there is a blurred distinction between capital and management, the company may, under exceptional circumstances, be obliged to ensure transparency both on its own initiative and in response to requests from minority shareholders. In addition, the company must provide ‘uninformed’ shareholders with generous and adequate factual and verifiable information, particularly where there are conflicts of interest.An important limitation is that, in the absence of a reasonable interest (or where the company has an overriding interest), there is no right to information.The impact of a shareholders’ agreementThe duty of care may be further defined by the terms of a shareholders’ agreement or a resolution. Although Article 2:8 of the Dutch Civil Code is mandatory, the Enterprise Chamber respects the corporate governance structure chosen by the parties, even if it is not necessarily favourable to minority shareholders.A negative impact (a restriction on the duty of care) may arise where the parties have agreed on information rights at a detailed level. In such cases, it may be more difficult for a professional minority shareholder to argue why they are entitled to more information than they have contractually agreed to. In the Novero ruling, the Enterprise Chamber held that the minority shareholder had sought such extensive and detailed information that this reasonably exceeded her rights as a shareholder.Five practical lessonsThe foregoing gives rise to five specific points for consideration. Firstly, the mere fact that a person is a minority shareholder does not give rise to a duty of care; there must be asymmetry or close relationships. Secondly, transparency obligations can be far-reaching, a factor which must be taken into account when making and recording decisions. Thirdly, the duty of care may be shaped by a shareholders’ agreement, so this must be borne in mind when drafting such an agreement. Fourthly, the minority shareholder must always have a reasonable interest in order to be entitled to protection. Fifthly, provided that the board and the majority shareholder correctly observe the rules on the duty of care, the minority shareholder is not entitled to any additional protection.The duty of care towards minority shareholders is not a static concept: its scope depends on the specific circumstances within your company, the arrangements set out in a shareholders’ agreement and the degree of transparency practised by the board. Whether you are a minority shareholder wondering whether you are being kept sufficiently informed, or a majority shareholder wishing to know what obligations you are subject to, it is important to assess your legal position in good time.Would you like to know where you stand? Please feel free to contact us. We would be happy to help you find the right solution.
The sick employee: what is expected of an employer? Posted on 26 June 20269 July 2026 by Charlotte Urlus An employee calling in sick — it happens to every employer. But do you, as an employer, know exactly what will be expected of you over the coming two years? The reintegration obligation is one of the most error-prone areas of employment law. Unfamiliarity with the rules can lead to a wage sanction from the UWV. This means a third year of continued salary payments. In this blog, we outline the most important obligations and offer practical tips to help you avoid common mistakes.The Two-Year Continued Pay ObligationWhen an employee falls ill, you as the employer are obliged to continue paying their salary for a maximum of two years. During the first year of illness, you must pay at least 70% of the salary, but no less than the statutory minimum wage. In the second year, the same 70% minimum applies, but you are no longer required to guarantee the minimum wage if 70% falls below that threshold. In addition, a cap applies of 70% of the maximum daily wage under the Work and Income (Funding) Act — in practice, this amounts to a maximum of approximately €4,028.08 gross per month.Many collective labour agreements and employment contracts provide for a higher supplementary continued pay obligation — for example, 100% salary continuation during the first six months. Always check this!What to Do on Day One?Many employers assume that reintegration only truly begins when the occupational physician draws up the problem analysis. In reality, the clock starts ticking on the very first day of sick leave. As soon as an employee reports sick, it is important to notify the occupational health service and any private insurer without delay. The employee is required to provide a phone number, a treatment address, the expected duration of the absence, and information about any ongoing work. The employee must also indicate whether the illness resulted from a workplace accident or an incident involving a third party who may be liable. This may give you, as the employer, a right of recourse.In the first few weeks, it is not unusual to have the employee examined by the occupational physician. This gives you early insight into the employee’s capacity and the available reintegration options.The Timeline: From Week One to Week 104The reintegration process follows a strict statutory timeline. Missing these milestones carries a significant risk of a wage sanction. The key moments are as follows:Week 6 — Problem analysis. The occupational physician draws up a problem analysis, setting out what the employee can and cannot do as a result of the illness.Week 8 — Action plan. Based on the problem analysis, you and the employee jointly draw up an action plan: what reintegration goals will be pursued, what steps will be taken, and who is responsible. This is not a formality — it is the foundation of your reintegration file.Every six weeks — Evaluation and revision. The action plan must be reviewed and updated periodically, based on the advice of the occupational physician. In principle, this should happen at least every six weeks. An action plan that has not been touched since week eight will immediately attract the attention of the UWV.Week 42 — Notification to the UWV. You are required to formally register the long-term sick leave with the UWV.Week 52 — First-year evaluation. You and the employee draw up an evaluation of the first year of illness. If the employee has not yet (partially) reintegrated into their own role or another suitable position within your organization, you must at this stage at least explore the possibilities for external reintegration.Week 91 — Final evaluation. The employer, employee, and occupational physician jointly draw up a final evaluation.Week 93 — WIA application. The employee submits an application for a WIA benefit (Work and Income according to Labour Capacity Act).Week 104 — End of continued pay obligation. Provided no wage sanction has been imposed, your obligation to continue paying salary comes to an end.What If the Employee Does Not Cooperate?An employer does not have to simply accept that a sick employee refuses to cooperate with reintegration. There are specific rules that allow you, as the employer, to suspend or even discontinue salary payments if the employee fails to meet their reintegration obligations. This is a tool that must be used carefully — a misstep can quickly lead to a wage claim — but it is important to know that you are not without recourse as an employer.Dismissal During Illness: Nearly ImpossibleFinally, a frequently asked question: can you dismiss a sick employee? The answer is almost always no during the first two years of illness. Termination of an employment contract — whether for an indefinite or fixed term — is in principle not possible during this period. Dismissal on other grounds, such as underperformance, is also extremely difficult to achieve in practice. What about termination by mutual consent? A sick employee will rarely agree to this, because doing so means forfeiting both the right to continued salary and any entitlement to a Sickness Benefits Act (ZW) payment. On top of that, an employee who is still ill is in principle not entitled to unemployment benefit (WW) either. One of the conditions for a WW benefit is that the employee must be available to the labour market, and an employee who is unable to work due to illness will generally not meet that requirement.After two years of illness, dismissal through the UWV is in principle possible, but only if it is established that the employee will not be able to return to their own role or another suitable position within 26 weeks. In that case, the employee is entitled to the statutory transition payment.In ClosingReintegration is a lengthy and intensive process that requires consistent attention, thorough documentation, and timely action. Employers who know the rules and keep their files in order avoid unwelcome surprises from the UWV, while also giving their employee a fair chance at recovery. Do you have questions about reintegration obligations in a specific situation — from the first day of sick leave through to a potential dismissal procedure? Please do not hesitate to get in touch. We are happy to help you take the right steps.
Caught on Friday, fired on Monday: too late Posted on 10 June 202610 June 2026 by Iris Taling A security guard is caught stealing on Friday. His employer seeks legal advice and, after the weekend, issues a summary dismissal. Sounds logical, does not it? Yet the subdistrict court ruled otherwise in a recent judgment (ECLI:NL:RBDHA:2026:8543): the dismissal was too late. In this blog, we discuss what went wrong and why even a few hours can be fatal.Conditions for summary dismissalSummary dismissal is the most severe sanction under employment law. To be legally valid, three conditions must be met (Section 7:677 of the Dutch Civil Code):1. There must be a compelling reason;2. The dismissal must be given immediately;3. The urgent reason must be communicated to the employee immediately.Theft is a classic example of an urgent reason: the law explicitly states that an urgent reason may exist where the employee is guilty of theft or other criminal offences.The requirement of immediacy deserves special attention. The Supreme Court (ECLI:NL:HR:2023:1668) has ruled that the decisive factor is the time at which the urgent cause came to the attention of the person authorised to grant the dismissal. Whilst an employer may take some time to conduct an investigation or seek legal advice, they must act promptly.What happened?The employee in this case had been working as a security guard for a security company (TCS) since 2018. On Friday 12 December 2025, TCS received a report from DHL that the employee was suspected of stealing cigarettes from a colleague. The director of TCS went to the site, viewed CCTV footage and confronted the employee with it that same afternoon. The employee immediately admitted to the theft.The director wanted to seek legal advice but was unable to reach his solicitor that Friday. The employee was not suspended, not placed on leave, and was not required to hand in his access pass. The employee was sent home.On Monday, the employee simply turned up for work as usual for his afternoon shift. That Monday morning at around 11:00, the director finally spoke to his lawyer, who advised proceeding with summary dismissal. It then took until 15:08 – more than four hours later – before the employee was actually dismissed.The subdistrict court’s rulingThe subdistrict court was clear: the summary dismissal should have been issued earlier. Preferably on Friday, but in any case no later than immediately after the advice was given on Monday morning. The fact that the employer was waiting for documents from his solicitor – including a draft settlement agreement – was insufficient justification. After all, the director had already received the advice at 11:00 am that summary dismissal was justified. He should have acted immediately at that point.The subdistrict court also took into account that the employer had not taken the measures one would expect in such a serious case: no suspension, no removal from active duty and no blocking of the access pass. The employee was able to carry on working on Monday as if nothing had happened. This is inconsistent with the employer’s position that the incident was so serious that dismissal was the only option.The summary dismissal was therefore not given immediately and was thus not legally valid.Serious culpable conduct and fixed compensationAlthough the dismissal was not legally valid, the theft naturally remained a fact. The subdistrict court ruled that the employee had acted in a seriously culpable manner. It is precisely of a security guard that one may expect that he will not be guilty of theft. The employee was therefore not entitled to a transition payment.As the summary dismissal was not legally valid, the termination was irregular: TCS had not observed the notice period. The employee was therefore entitled to the fixed compensation under Section 7:672(11) of the Dutch Civil Code. This amounted to two months’ salary: over €8,000 gross.Had the employer acted four hours earlier, immediately after receiving the telephone advice at 11:00, these costs would in all likelihood have been avoided.The lesson for employersThis ruling clearly illustrates how strict the requirements are for summary dismissal. If an employer considers an employee’s conduct so serious that dismissal is the only option, they must act accordingly. This means:Immediately suspending or placing the employee on leave as soon as the facts are known, so that the urgency is clear.Seeking legal advice promptly if necessary, but not making the dismissal contingent on the drafting of a settlement agreement or other documents.Communicating the dismissal immediately after receiving the advice, without delay.Because even a few hours can be fatal.In conclusionDo you have any questions about summary dismissal or would you like to know how best to proceed as an employer? Please feel free to contact us. We would be happy to help.