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Recently, the Central Netherlands District Court again emphasised the weighty interest in the non-competition clause. The subdistrict court ruled that the non-competition clause in the fixed-term employment contract was not legally valid because the employer did not comply with the obligation to state reasons. 

In a fixed-term employment contract, an employer must clearly and specifically substantiate why a non-competition, non-solicitation or anti-harassment clause is necessary because of important business interests. In principle, a general enumeration that may apply to every company is not sufficient for this purpose.  So what, among other things, must the motivation satisfy? The subdistrict court indicated that it must concern:

• the employer's interest in maintaining the clause;
• the clause must be genuinely focused on that employee's job and the work within that job;
• the employer's specific business information, knowledge and experience to be acquired must be stated, which would actually jeopardise the employer's business flow if employee does not comply with the clause.

In this case, the non-competition clause was based on a general enumeration of interests without specific consideration regarding the employee's position and work. The subdistrict court stressed that a concrete link to substantial business interests is needed to justify such a clause. Thus, the employer's business interests must actually be at risk if the ex-employee joins a competitor. Thus, in the present case, the employer had not fulfilled its duty to state reasons, as there was no evidence of an impairment of the employer's commercial business flow. As a result, the clause was null and void. 

So pay close attention to the difference in legal effect. If the clause is well motivated and states the above, but a subdistrict court considers that an employee's interests outweigh the employer's interests in not maintaining the clause, then the clause is voidable (in whole or in part). An employee must appeal to that. If the clause is not properly motivated and therefore does not actually meet the requirements, the clause is void and therefore not legally valid.

For now, the weighty interest only applies in the case of a competition, relationship and/or anti-solicitation clause in a fixed-term employment contract. The government wants to change this. With the bill Modernising the competition clause, the government wants to, among other things:

• limit the duration of the non-competition clause;
• the inclusion of a geographical scope will become mandatory;
• compensation for employees held to the clause; and
• The weighty business and or service interest for the clause must be justified in all employment contracts. This then applies to both fixed-term and open-ended employment contracts. 

These changes aim to improve the balance: employers should protect their business interests, but employees should also have the freedom to pursue their careers. 
This bill is now on the shelf for January 2026, so you still have some time to take a good look at your non-competition, non-solicitation and/or anti-solicitation clause, and, above all, do not forget the weighty business interest. 

If you doubt whether your non-competition, non-solicitation and/or anti-solicitation clause is legally tenable. Please contact Dennis Oud, Tessa Sipkema, Tim van Riel or Elke Hofman-Bijvank. 

You can find the link to the ruling here. 

A new law to simplify and modernise the law of evidence in civil proceedings entered into force on 1 January (Simplification and Modernisation of Evidence Act). The law of evidence is for enabling parties in civil proceedings to substantiate their contentions in writs of summons, defences or other documents. One way to do this is by submitting written documents, expert reports or witness statements. The renewed law of evidence can be explained in several topics. The new law of evidence applies to proceedings commenced after 1 January 2025. But what exactly has changed from 1 January? The main changes will be briefly outlined here. 

Preliminary evidence transactions

The new law makes it possible for parties to request the court to order multiple evidentiary transactions prior to the proceedings (this can be done even before the case is registered on the roll). Previously, a separate request had to be made for each evidence, for example if a party wanted to hear experts or to inspect certain documents. To increase efficiency, article 197 Rv-new ensures that requests can be combined. Thus, if you want to hear an expert and inspect documents, this can be done in one request. 

Right of inspection

The new law clarifies the right of inspection by supplementing the law. Earlier, court intervention was necessary to inspect documents. Parties can now also claim the content of various documents without court intervention. In addition, from 1 January it will be possible to apply the right of inspection when documents are held by third parties who are not parties to the dispute. 

Witness and expert evidence

The limitation of the burden of proof in the case of party witnesses has long been criticised. This mainly relates to the fact that previously, a statement by a party on whom the burden of proof rested could not provide evidence in its favour unless it sought to supplement incomplete evidence. The new law aims to remove this to abolish this restriction. Statements made by a party at the hearing can be entrusted to the judge's free discretion from 1 January.

Role of the judge

In practice, the judge was already quite active in the context of truth-telling. This manifested itself, for example, in the fact that the judge was allowed to discuss possible arguments with the parties during the oral hearing, actively guiding the debate. So this was actually always done, but this active role of the judge is now actually codified. Thus, the law now states that the judge may actively discuss their claim, request or defence with the parties. 

Preservation of evidence and record

Case law had previously shown that it was possible for a party to secure evidence by having the bailiff make a prejudgment attachment of evidence. Earlier, this was only legally regulated for IP cases. Furthermore, it can be requested that the bailiff can draw up an official report to give an objective description of the facts and circumstances found by the bailiff. This is considered an authentic act and therefore has binding evidential value. The court should therefore rely on this official report.

This is a brief summary of the new law change valid in the Netherlands from 1 January 2025 for civil proceedings. If you have a question regarding the law of evidence or would like advice on a (civil) procedure you have, please contact us.

If an administrative body does not comply with the statutory decision period, and thus does not make a decision on time, a citizen or company can object. An appeal for failure to decide on time can then be lodged with the court. The court must then assess whether the administrative body must pay damages to the citizen and, more importantly, also set a deadline for the decision to be made. 

Before such an action for failure to decide on time can be brought, the administrative body must first be given notice of default. This means that the citizen must inform the administrative body that the decision was taken too late and demand that the administrative body still take a decision within a reasonable period (usually two weeks). If the citizen fails to do so, the appeal for failure to decide on time will have no chance of success. 

By law (Section 6:12(2) opening words and under b of the Awb), such a notice of default must, in principle, be sent by post. The question raised in the judgment discussed in this blog is whether it is also sufficient to file the notice of default electronically. 

In its ruling of 18 December 2024, the Division ruled as follows. Although, in principle, a notice of default must be submitted by post, this can also be done electronically, such as by e-mail. Article 2:15 (1) of the Awb does impose the condition that the administrative body must have made this electronic way available. By open up, the Division means that the administrative body must have opened up the electronic way for the application. Therefore, if the electronic way is open to an application, it is also open to a notice of default for not deciding on the application in time. 

What does this mean in practice? If you notice that the administrative body has exceeded the decision period and you want to take action against this, you should know well what steps to take. In principle, you should start by sending a notice of default. Only then can you lodge an appeal for late decisions with the court. 

Do you have questions about a notice of default or an appeal for failure to decide on time? If so, please contact Gerard van der Wende or with Fleur Huisman. 

You can find the link to the ruling here.

Restoration sanctions, such as an order for periodic penalty payments, are imposed on an offender to restore the permitted or legal situation. For example, if an offender is using a building to rent out storage units without having a permit to do so, an order under penalty may be imposed to stop this use and restore the legal/permitted situation. Now what if the person on whom the order under penalty is imposed can no longer be held accountable for that violation, for example because he is no longer the owner of the plot, or because he has died. The order under penalty can then pass to the legal successor of the violator. The legal successor is the person who buys the plot from the violator, but this can also be the heirs of the violator. Can the order under penalty simply pass to that legal successor if he/she is unaware of it? 

This issue had to be assessed by the Administrative Law Division of the Council of State in its ruling of November 20, 2024. In this case, the college had imposed an order under penalty payment on the operator of a café for exceeding noise standards. In fact, local residents were suffering greatly from noise pollution. In its decision, the college had also explicitly stated that the order would also apply to the legal successor. The café was sold and the new owner continued under a new name. The college found that the new owner had violated the order several times and proceeded to recover the forfeited penalty payments. The new owner disagreed, claiming to have no knowledge of the previously imposed order for periodic penalty payments. The Division ruled that the answer to the question of whether the new owner could be considered a legal successor did not depend on whether the new owner was aware of the penalty payment order when he purchased and began operating the café. In addition, the Division ruled that the new owner could also have found this information in the municipal restrictions register. 

This therefore means that you, as the legal successor, can be faced with remedial sanctions imposed on your predecessor, even if you had no knowledge of them. Note that this transfer to the legal successor must be explicitly mentioned in the decision of the administrative body. 

There may be possibilities for recourse against the previous owner, but this strongly depends on the circumstances of the case. We can also assist you with this. 

Are you confronted with a recovery sanction and are you looking for assistance in the objection and appeal procedure? Please contact Gerard van der Wende or with Fleur Huisman. 

You can find the link to the decision of the Council of State here

Recently, the District Court of North Holland ruled, which again clearly shows that parties should look at the actual situation and not so much at what is (not) on paper. This case was about a hairdresser who was seen as a freelancer by her employer, because they did not (yet) have a written employment contract, but according to the subdistrict court she was still seen as an employee.

What was going on in this case? In this case, the parties discussed drafting a written employment contract. However, they had not agreed on the terms. A few months later, the (mother of the) hairdresser asks the salon owner for the employment contract and pay slips so that she has clarity on vacation days and vacation pay. The salon owner indicates that as long as the hairdresser does not agree to the employment contract, she is considered a self-employed worker and therefore the salon does not have to pay pay payroll taxes. Subsequently, the hairdresser called in sick, which the salon owner considered a termination of the employment contract. The hairdresser took the position that no notice should be given because she was sick and there was a prohibition on giving notice.

Why did the district judge rule that the hairdresser was an employee? The salon owner specified the work to be done by the hairdresser, with the hairdresser also needing constant supervision because she could not do the work independently. This indicates a relationship of authority. In addition, the hairdresser did not send invoices, did not charge her own hourly rate and was not registered in the trade register of the Chamber of Commerce. She reported her hours worked, after which payment followed. Thus, the hairdresser received wages and performed labor under authority for a certain amount of time. In short, all the requirements for an employment contract under Section 7:610 of the Civil Code were met. 

What was the consequence? The salon owner was not allowed to terminate the employment contract in connection with the ban on notice during illness and must therefore reintegrate the hairdresser and then keep her at work. In addition, the hairdresser's collective bargaining agreement, which has been declared generally binding, came into play and the hairdresser was entitled to 100% salary continuation including vacation allowance in accordance with the collective bargaining agreement for at least the first year of illness.

Do you have questions about whether the zzp'ers you have engaged are not in fact employees in disguise or would you like to set out the agreements with these zzp'ers more clearly on paper? If so, please contact Dennis Oud, Tessa Sipkema, Elke Hofman-Bijvank or Tim van Riel. 

You can find the link of the ruling here. 

Both case law and practice often discuss it: the administrative body sends a decision by mail, but the citizen claims not to have received anything. When the citizen does not receive a decision, it can have far-reaching consequences. Therefore, this is often litigated in case law. Such is the case in the Division's ruling of November 27, 2024. 

In this case, the plaintiff had submitted an application for a permit to replace roof tiles and facade parts of buildings on his property. However, the application was not complete and the college therefore requested additional data. The plaintiff did not send that additional data within the time limit set for this purpose, and the college therefore disregarded the permit application. The plaintiff claimed never to have received this decision and even believed that the environmental permit had been granted by operation of law because the college had not made a decision after two years. The college did not go along with this and the plaintiff objected to both the decision to set aside and the decision to refuse publication of a permit granted by operation of law. The college declared the objection inadmissible for the former part and further declared it unfounded. The court declared the appeal against it unfounded. 

The Division now had to assess whether the college had actually set aside the permit application, or at least whether it had sent this decision to the plaintiff. 

It was established that the college had not sent the letter by registered mail. It follows from established case law that in that case the college must make it plausible that the letter was sent. It is sufficient if the college proves that the letter was sent to the correct address, by demonstrating that the letter is correctly addressed, that it has a date of dispatch and that there are proper shipping records. On the contrary, the plaintiff must disprove this and dispute receipt of the letter. In this case, the college had plausibly established that the letter was sent and the plaintiff could not sufficiently disprove or dispute this. 

In practice, this means that you yourself must keep a close eye on the deadlines and, more importantly, maintain good contact with the municipality and not wait. If you need help with this in an objection or appeal procedure, please contact Gerard van der Wende or with Fleur Huisman. 

You can find the link to the ruling of the Council of State here.