A confidentiality agreement in business is a contract in which one or more parties promise not to disclose specified information and not to use it outside an agreed purpose. Under Dutch law you do not always need one, because the Trade Secrets Act (Wet bescherming bedrijfsgeheimen) has protected genuine trade secrets since 23 October 2018 even where nothing was signed; but without a contract, other sensitive information is barely protected and proving a loss after a leak is hard.
The contract earns its place by answering what the statute leaves open: what exactly is confidential, for how long, who may see it and what a breach costs. For the document itself, clause by clause, see our ачыкка чыгарбоо келишими боюнча толук көрсөтмө.
Where do confidentiality obligations come from in a Dutch business relationship?
A duty of secrecy can follow from a contract, from the Trade Secrets Act, from reasonableness and fairness, or from an employment relationship. These four sources operate independently, and the one you rely on determines what you have to prove.
A contract, or a confidentiality clause in a wider contract, binds the parties on its own terms. You only have to show that the information falls within the agreed definition and that the other party disclosed or used it. The Trade Secrets Act gives the holder of a trade secret remedies against anyone who acquires, uses or discloses it unlawfully, including a party who never signed anything.
Reasonableness and fairness under Articles 6:2 and 6:248 of the Dutch Civil Code (Burgerlijk Wetboek, BW) also govern negotiating parties and contracts that are silent on secrecy. Outside any relationship, a party who deliberately exploits another business’s confidential information can be liable in tort under Article 6:162 BW.
An employee must behave as a good employee under Article 7:611 BW, which includes discretion about the employer’s affairs. Under Article 7:678 BW, disclosing business particulars that the employee was obliged to keep secret is an urgent cause for summary dismissal (ontslag op staande voet).
What does the Trade Secrets Act protect without a contract?
The Act protects information that is secret, commercially valuable because it is secret, and subject to reasonable measures to keep it secret. The three conditions, taken from Directive (EU) 2016/943, are cumulative: fail one and the statutory route closes.
In practice the third condition decides cases. Access restrictions, a documented need-to-know policy, marked documents, data room logs and signed confidentiality agreements turn a claim of secrecy into a provable fact. A pricing model circulated as an unrestricted spreadsheet will be hard to present to a court as a protected secret.
Acquisition, use or disclosure is unlawful if it involves unauthorised access or copying, conduct contrary to honest commercial practices, or a breach of a confidentiality obligation. A third party who knew or ought to have known that the secret came from such a breach is also liable, which allows a claim against a new employer as well as the departing employee.
The Act also leaves room. Independent discovery and reverse engineering of a lawfully obtained product are lawful, unless a contract validly restricts reverse engineering. A court must reject a claim where disclosure served freedom of expression, exposed wrongdoing in the public interest or was part of employee representation, and no contract can exclude those defences.
What does a confidentiality agreement add to the statutory protection?
A contract covers sensitive information that is not a trade secret, and it sets purpose limits, onward-disclosure rules, return duties and the choice of law and court. A quoted tender price, the identity of a prospective buyer or the existence of negotiations may not qualify as trade secrets, yet each can do damage in the wrong hands.
The agreement limits use to the agreed purpose, names the advisers, group companies and subcontractors who may receive the information, fixes when materials must be returned or destroyed, and settles which law applies and which court or arbitral tribunal decides. Signing and enforcing such agreements is also evidence of the reasonable measures that the Trade Secrets Act requires.
Watch later contracts. A share purchase, services or shareholders agreement often has its own confidentiality clause and an entire agreement clause, which may replace the earlier agreement on less favourable terms unless you say otherwise. Our overview of the Нидерландиянын мыйзамдары боюнча коммерциялык келишимдердин түрлөрү бул документтердин бири-бирине кандайча туура келерин түшүндүрөт.
How do you protect information during negotiations and due diligence?
Sign before the first substantive meeting and disclose in stages. The duty of reasonableness and fairness between negotiating parties is open-textured and hard to enforce quickly, and by the time a deal looks real the information has usually been shared.
In an acquisition or investment round the buyer is usually active in the same market. Disclose an anonymised profile first, then aggregated financial information, and only after a letter of intent the customer contracts, margins and personnel data. A data room with individual logins records who looked at what. See our article on Нидерланддык биригүүлөр жана сатып алуулар боюнча кылдат текшерүү.
Add a non-solicitation undertaking for your staff and customers, because confidentiality alone does not stop the other side from approaching your commercial director. Make the duty survive the end of the talks; the rules on Нидерландиядагы сүйлөшүүлөрдү үзүү ошол көйгөйдүн экинчи жарымы менен күрөшүңүз.
How do you keep information safe in the supply chain?
Require your counterparty to impose the same obligations on its subcontractors and to remain liable for them as for its own conduct. Otherwise you would have to sue a subcontractor without a contract, on the harder statutory footing.
Name the countries or entities to which information may be transferred. And note that a confidentiality agreement is not a data processing agreement (verwerkersovereenkomst): where the other party processes personal data on your instructions, Article 28 GDPR requires a separate agreement, and the Dutch Data Protection Authority (Autoriteit Persoonsgegevens) supervises compliance. Our article on the Нидерландыдагы маалыматтарды иштетүү келишими sets out what it must contain.
How do you protect confidential information against your own staff?
A confidentiality clause binds an employee during and after employment, but it does not keep them away from a competitor. Unlike a non-compete clause, it needs no special formalities to be valid.
Knowledge absorbed as ordinary professional skill belongs to the employee; concrete, identifiable information belongs to the employer. To keep someone out of the market you need a non-compete clause (concurrentiebeding) or non-solicitation clause (relatiebeding) under Article 7:653 BW: in writing and, in a fixed-term contract, with a written statement of the compelling business interest. See our article on Нидерландиянын эмгек мыйзамы боюнча атаандаштыкка каршы жоболор.
A penalty in an employment contract must meet Article 7:650 BW: in writing, specifying the rules whose breach is penalised and the amount, and the penalty may not benefit the employer directly or indirectly. For employees earning more than the statutory minimum wage, parties may depart from part of this in writing. For the same breach the employer can claim either the penalty or damages, not both.
On the last working day, recover devices, revoke access and preserve mailbox and file-transfer logs before closing accounts. Where an employee forwards documents to a private address shortly before resigning, those logs are usually the whole case.
What does a Dutch court do with a penalty clause?
The court applies the clause, but under Article 6:94 BW it may reduce the penalty if fairness manifestly requires it. A penalty clause (boetebeding) spares you from proving the financial loss of a leak, which is often very hard.
Under Article 6:92 BW the penalty replaces statutory damages, so the agreement must say expressly if you also want to claim your actual loss. Under Article 6:93 BW the penalty is due only after a notice of default where a damages claim would require one, unless the clause provides otherwise. The Supreme Court (Hoge Raad) expects courts to use the power to reduce with restraint.
A tiered clause works better than one lump sum: a fixed amount per breach, a daily amount for a continuing breach, an overall cap, and an express reservation of further damages and an injunction. A single large sum that treats a misdirected email like the theft of a customer database invites reduction.
What should you do when confidential information leaks?
Secure the evidence, send a written notice, and go to the preliminary relief judge (voorzieningenrechter) in summary proceedings (kort geding) if the breach continues. Speed and evidence decide these cases.
First secure access logs, download histories, email traffic and the data room audit trail, lawfully and before confronting anyone. Then send a notice with the obligation, the facts, a demand to cease and return the material, and a deadline; it also establishes the default that Article 6:93 BW may require.
The judge can order the other party to stop using the information, hand over or destroy copies and identify recipients, and can keep the secret out of the public part of the proceedings. Where evidence may disappear, an evidentiary seizure (bewijsbeslag) can be requested. On the merits the court can award damages, including a reasonable licence fee, and order publication of the judgment. Intentional disclosure by someone bound to secrecy can also be a criminal offence under Article 273 of the Dutch Criminal Code (Wetboek van Strafrecht).
Which mistakes cost businesses their protection?
Signing too late, a vague definition, an ill-chosen term and a contract nobody enforces. An agreement signed after the information was shared does not restore your position.
A definition of “all information disclosed” gives a court nothing to work with; a list of only technical drawings leaves commercial information unprotected. Use categories with concrete examples and a confirmation procedure for oral disclosures.
Dutch law sets no maximum term; two to five years is a convention. Match the term to the commercial life of the information. A trade secret stays protected under the Act for as long as it remains secret. Obligations that nobody monitors or enforces also undermine your argument that you took reasonable measures; see our article on соода сырларын коргоо.
What should you check as the disclosing party?
- That the agreement is signed before the first substantive meeting or data room access.
- That the definition lists categories of information with concrete examples.
- That onward disclosure to advisers and subcontractors requires equally strict terms, with your counterparty liable for them.
- That the penalty clause is tiered, payable without notice of default and reserves further damages under Article 6:92 BW.
- That a separate data processing agreement under Article 28 GDPR is in place if personal data is shared.
Кабыл алуучу тарап катары эмнени текшеришиңиз керек?
- That the purpose limitation still lets you carry out the assessment or work you were engaged for.
- That information you already knew, developed independently or that is public falls outside the definition.
- That the term ends on a fixed date rather than running indefinitely.
- That the penalty is proportionate and capped, given the court’s power to reduce under Article 6:94 BW.
- That return and destruction duties allow you to keep copies required by law or in automatic back-ups.
What can we do for you with a confidentiality agreement?
биздин корпоративдик юристтер act for both disclosing and receiving parties, in transactions, supply chains and employment.
- We draft or review the confidentiality agreement, including the definition, term and penalty clause.
- We check how it interacts with later share purchase, services or shareholders agreements.
- We draft the flow-down clause for subcontractors and the data processing agreement under Article 28 GDPR.
- We secure evidence after a leak and send the notice of default.
- We start summary proceedings before the preliminary relief judge or an evidentiary seizure.
Жыйынтык
- The Trade Secrets Act protects genuine trade secrets without a contract, but only if you took reasonable measures to keep them secret.
- A confidentiality agreement also covers sensitive information that is not a trade secret, limits its use and regulates onward disclosure.
- Sign before you share, define the information by category, and match the term to its commercial life.
- A penalty clause spares you proving your loss, but under Article 6:94 BW the court can reduce it.
- After a leak, secure the evidence first, send a written notice, and consider summary proceedings.
Көп берилүүчү суроолор
NDA адатта канча убакытка созулат?
There is no statutory term. A period of эки жылдан беш жылга чейин is a common convention, not a legal rule. What matters is that the duration matches the commercial life of the information you are protecting.
Dutch law sets no fixed maximum, so a perpetual term is not automatically void, but the further you move from the moment the information had real commercial value, the harder the obligation is to enforce. For that reason, we recommend a clear end date that reflects how long the information will realistically remain sensitive and commercially valuable.
Эгер кимдир бирөө кол коюудан баш тартсачы?
Then do not share sensitive information yet. A refusal may simply reflect a policy of the other side, for example a large company that only signs its own template, but it may also mean the other side wants to keep its hands free.
Ask why, and offer a mutual agreement or the other side’s template with your own definition of confidential information. Until something is signed, share only what you could live with seeing elsewhere. Remember that the Trade Secrets Act and reasonableness and fairness still apply, but they protect less than a contract does.
Жумуштан бошотулгандан кийин да NDA жарактуубу?
Yes, if the agreement says so. A well-drafted NDA or confidentiality clause states that the duty continues after employment or the business relationship ends. Apart from the contract, the Trade Secrets Act keeps protecting genuine trade secrets.
To avoid any doubt, the contract should state explicitly that the duty to protect confidential information continues for the entire term specified in the NDA, regardless of the individual’s employment status. A former employee may still use general knowledge and skill, but not concrete, protected information of your business.
