Non-disclosure agreement (NDA) under Dutch law

Published on 10 May 2022 · Last updated 4 November 2026

A non-disclosure agreement (NDA) under Dutch law is a binding contract in which a party undertakes to keep information confidential and to use it only for an agreed purpose. If you want an NDA with a partner in the Netherlands drafted or reviewed, or a Dutch party has breached one, the penalty clause and the choice of law and court decide what you can enforce.

As a Dutch lawyer at MAAK Advocaten in Amsterdam, I draft and review NDAs for foreign companies and act for them when a Dutch party discloses or misuses their information.

What is an NDA?

An NDA is an ordinary contract under Dutch law: it comes into existence by offer and acceptance (Article 6:217 Dutch Civil Code). Dutch law has no separate statutory regime for it, so its wording decides what the recipient may do.

“Non-disclosure agreement”, “confidentiality agreement” and “secrecy agreement” are labels for the same type of contract. In Dutch: geheimhoudingsovereenkomst or, if only the recipient signs, geheimhoudingsverklaring. Besides what the parties agreed, the contract also has the effects that follow from the law, custom and reasonableness and fairness (Article 6:248(1) DCC). Unless the law provides otherwise, no specific form is required (Article 3:37(1) DCC). Even so, I recommend a written and signed NDA: in a dispute, you must be able to prove what was agreed and what you disclosed.

When should a foreign company sign an NDA with a Dutch party?

Sign the NDA before you share anything of value: drawings, recipes, source code, customer lists, prices or business plans. Typical moments are talks with a Dutch manufacturer, distributor, investor, joint venture partner or the buyer of a business.

An NDA gives you a contractual claim if the recipient breaches it, and helps to show that you took reasonable steps to keep the information secret, which is one of the three conditions for statutory protection as a trade secret (Article 1 Trade Secrets Protection Act). That protection exists alongside the contract; see our page on trade secrets and confidential information under Dutch law.

Using or disclosing a trade secret without the holder’s consent is unlawful if the person doing so breaches a confidentiality agreement or a contractual duty to limit its use (Article 2(2) Trade Secrets Protection Act). If you hand over a prototype, the NDA should also prohibit testing or taking it apart: without such a duty, acquiring information that way is not unlawful (Article 3(1)(b) Trade Secrets Protection Act).

What should an NDA under Dutch law contain?

Dutch law prescribes no fixed content for an NDA. The parties are largely free to agree what they want, within the limits of mandatory law and reasonableness and fairness (Article 6:248(2) DCC).

The parties, and to whom the information may be passed on, such as employees or advisers.
One-way or mutual: a one-way NDA if only you disclose, a mutual NDA if both parties share information.
The purpose, such as assessing a possible cooperation, to which use is limited.
The definition of confidential information, and whether marking documents as “confidential” is required.
Exclusions: information already known, public without a breach, lawfully received from a third party or developed independently.
Security measures, and disclosure required by law only after prior notice to you.
No licence: ownership stays with the disclosing party.
Term, and return or destruction of the information when talks end.
A penalty per breach, if necessary increased per day that the breach continues (see below).
Governing law and competent court or arbitral tribunal (see below).

In my view, the definition deserves the most attention. Calling “all information” confidential sounds strong, but makes it harder to show what was protected and what was disclosed. I advise describing the categories concretely and keeping a record of what you handed over and when.

How long does an NDA last under Dutch law?

An NDA lasts as long as the parties agree: Dutch law sets no fixed term. Agree it explicitly, and state whether confidentiality continues after the cooperation ends; otherwise a dispute about the duration is likely.

A common approach is a fixed number of years for ordinary information and, for trade secrets, as long as the information remains a trade secret. Statutory protection depends not on the NDA’s term but on the conditions of Article 1 Trade Secrets Protection Act.

How does a penalty clause in a Dutch NDA work?

A penalty clause (boetebeding) obliges the party in breach to pay an agreed sum, whether as compensation or merely as an incentive to perform (Article 6:91 DCC). It is useful because loss caused by a leak is often hard to prove.

These rules apply when Dutch law governs the NDA:

The penalty replaces statutory damages (Article 6:92(2) DCC). To keep the right to claim higher actual damages, say so in the NDA.
You cannot claim both the penalty and performance of the same obligation (Article 6:92(1)). A penalty for a past disclosure does not, however, rule out an order prohibiting further disclosure: the past breach cannot be undone, while confidentiality can still be observed in the future (Supreme Court (Hoge Raad) 22 June 2007, ECLI:NL:HR:2007:BA4122, para. 6.2).
No penalty is due if the failure cannot be attributed to the party in breach (Article 6:92(3)).
A demand or other prior statement is needed only in the cases in which it is required for claiming statutory damages (Article 6:93 DCC). For a breach of a duty of confidentiality, the Supreme Court held that no notice of default is required because the breach cannot be undone, so the penalty is due without a prior demand (same judgment, para. 6.2).
At the request of the party in breach, the court can reduce the penalty if fairness clearly requires it, but not below statutory damages; a clause excluding this power is void (Article 6:94(1) and (3) DCC). Conversely, at your request, the court can award additional damages alongside a penalty that replaces statutory damages, if fairness clearly requires it (Article 6:94(2)).

According to the Supreme Court, a court may only reduce a penalty if applying the clause leads to an excessive and therefore unacceptable result. The court considers the ratio between the actual loss and the penalty, the nature of the contract, the content and purpose of the clause and the circumstances in which it is invoked (Supreme Court (Hoge Raad) 27 April 2007, ECLI:NL:HR:2007:AZ6638, para. 5.3). Agree whether several disclosures on one subject count as one breach; that can decide how much is due. Stricter rules apply to penalties in employment contracts (Article 7:650 DCC).

Which law and which court apply to an international NDA?

A court in the EU applies the law the parties chose for the NDA (Article 3(1) Rome I Regulation), and a written choice of a court in an EU Member State is in principle binding (Article 25(1) Brussels I bis Regulation).

The Dutch contract-law rules on this page, such as the court’s power to reduce a penalty, apply only if Dutch law governs the NDA. Dutch procedural rules, such as summary proceedings, penalty payments and mandatory representation, apply in any Dutch court, whatever law governs the contract. Whether the Trade Secrets Protection Act applies is a separate question, decided under the rules for non-contractual obligations.

Without a choice, Article 4 Rome I applies. An NDA does not fit one of the standard categories, so it is governed by the law of the country where the party that must effect the characteristic performance has its habitual residence (Article 4(2)). In a mutual NDA, both parties make the same promise, so that party often cannot be identified; the law of the country with which the NDA is most closely connected then applies (Article 4(4)). Because the outcome is hard to predict, I recommend an express choice of law.

Put the choice of court in writing: an agreement in writing or evidenced in writing is valid, and an electronic communication that provides a durable record counts as writing (Article 25(1)(a) and (2) Brussels I bis). The Regulation also accepts forms based on established practices between the parties or on a widely known trade usage (Article 25(1)(b) and (c)), but these are harder to prove. The chosen court has exclusive jurisdiction unless the parties agreed otherwise. Even if a court elsewhere in the EU has jurisdiction over the merits, you can ask a Dutch court for provisional measures available under Dutch law (Article 35 Brussels I bis). A judgment from one Member State is enforceable in the others without a declaration of enforceability (Article 39).

Are you about to share information with a Dutch partner? Send me the draft NDA or a short description of the deal, and I will tell you which clauses need to change before you sign.

What can you do when a Dutch party breaches an NDA?

After a breach of an NDA or another breach of confidentiality, you can claim an order to stop, the agreed penalty or damages, and in urgent cases go to the preliminary relief judge. Speed matters: a secret that circulates may lose its value.

The contractual remedies below apply if Dutch law governs the NDA; under another governing law, that law decides on damages, termination and limitation periods (Article 12(1)(c) and (d) Rome I).

An order to comply, including an order not to disclose (Article 3:296 DCC), if necessary with a penalty payment (dwangsom) for each breach of the order (Article 611a Code of Civil Procedure).
The agreed penalty (Articles 6:91–6:94 DCC) or, without a penalty clause, damages for an attributable failure to perform (Article 6:74 DCC).
Termination (ontbinding), wholly or partly, of the contract under which you shared the information, such as a supply or cooperation agreement (Article 6:265 DCC). Be careful with terminating the NDA itself: termination releases the parties from the obligations it affects (Article 6:271 DCC), including the recipient’s duty of confidentiality.
If a trade secret is involved: provisional measures from the preliminary relief judge, such as a ban on use or disclosure (Article 5 Trade Secrets Protection Act), measures in the main proceedings such as a recall or the destruction of documents (Article 6 Trade Secrets Protection Act) and damages from an infringer who knew or should have known that it acted unlawfully (Article 8 Trade Secrets Protection Act).

An NDA binds only its parties. A third party who receives your trade secret can still act unlawfully if it knew or should have known that the secret came from someone who used or disclosed it unlawfully (Article 2(3) Trade Secrets Protection Act). The court rejects a claim under the Act if the use or disclosure served, for example, freedom of expression or revealing misconduct in the public interest (Article 4 Trade Secrets Protection Act).

In urgent cases, the preliminary relief judge (voorzieningenrechter) in summary proceedings (kort geding) can give an immediate provisional measure (Article 254 Code of Civil Procedure). In proceedings about the unlawful acquisition, use or disclosure of a trade secret, the court can, at the request of a party, designate (alleged) trade secrets as confidential; participants may then not use or disclose them, also after the proceedings (Article 1019ib Code of Civil Procedure).

Do not wait too long. Under Dutch law, a claim for damages or for payment of an agreed penalty becomes time-barred five years after the day following the one on which you became aware of both the loss or the penalty being due and the party liable, and in any case twenty years after the event (Article 3:310(1) DCC). A claim under Articles 5, 6 and 9 of the Trade Secrets Protection Act becomes time-barred five years after the day following the one on which you became aware of the infringement, and in any case twenty years after it began (Article 3:310d DCC).

Example: a Dutch contract manufacturer uses your drawings

Suppose a German machine builder shares technical drawings with a Dutch contract manufacturer under an NDA governed by Dutch law, with a penalty per breach and a choice of the Amsterdam District Court. The talks end. Months later, the Dutch company offers the German builder’s customers a strikingly similar machine. This example is hypothetical.

In a situation like this, I would first secure the evidence: which drawings were sent, when, to whom and under which NDA version. Next, a demand to stop, with a short deadline. If it does not respond, summary proceedings for a ban on use and disclosure, with a penalty payment, are the fastest route. The penalty or damages can follow in the main proceedings or in a settlement; the ban itself may already stop the sales to your customers.

When do you need a Dutch lawyer for an NDA?

You need a Dutch lawyer when the NDA protects valuable information, when the other party proposes its own Dutch template, or when you suspect a breach. Outside the subdistrict court, Dutch proceedings require an advocaat; in summary proceedings only the defendant may appear in person.

The duty of representation applies to claimant and defendant alike (Article 79(2) Code of Civil Procedure); the exception for the defendant in summary proceedings is in Article 255(1) Code of Civil Procedure. Before signing, involve a lawyer while the penalty and the choice of law are still negotiable; after a breach, act before evidence disappears.

How does an NDA review or NDA dispute proceed?

We draft, review and negotiate NDAs and confidentiality agreements under Dutch law, and act for disclosing and receiving parties in breach disputes: in negotiations, summary proceedings and proceedings on the merits at first instance and on appeal.

Analysis: the NDA, the governing law and forum clause, and whether the information is also a trade secret.
Advice: which clauses to change before signing or, after a breach, which route serves your commercial goal.
Action: negotiating the text, or securing the evidence and sending a demand letter.
Proceedings: summary proceedings or proceedings on the merits, and any appeal.

We advise in English. More about our contract lawyers in the Netherlands and our work in Dutch contract law.

Has a Dutch party disclosed or used your confidential information, or is a Dutch partner asking you to sign its NDA? Contact me with the NDA and a short description, and I will tell you your options and the first step.

Frequently asked questions about NDAs under Dutch law

Is an NDA legally binding in the Netherlands?

Yes. An NDA is a contract formed by offer and acceptance (Article 6:217 Dutch Civil Code); no specific form is required, but a signed document makes proof easier. A Dutch court can order compliance, including an order not to disclose (Article 3:296 Dutch Civil Code).

What is the difference between an NDA and a confidentiality agreement?

Under Dutch law there is no legal difference: both are labels for the same contract, in which the recipient undertakes to keep information confidential and use it only for the agreed purpose. Its effect depends on the wording, read together with Article 6:248 Dutch Civil Code.

Are NDAs enforceable internationally?

Within the EU, usually yes. Parties can choose the governing law (Article 3 Rome I Regulation) and a court in a Member State (Article 25 Brussels I bis Regulation), and judgments are enforceable in other Member States without a declaration of enforceability (Article 39 Brussels I bis). A Dutch court applies the same choice-of-law and choice-of-court rules when one party is based outside the EU, for example in the US or the UK. Whether a Dutch judgment can then be enforced in that country depends on that country’s law and any applicable treaty.

What happens if someone breaches an NDA in the Netherlands?

If Dutch law governs the NDA, you can claim an order to stop the breach, if necessary with a penalty payment (Article 611a Code of Civil Procedure), and the agreed penalty or damages (Articles 6:74 and 6:91 Dutch Civil Code). For a trade secret, the Trade Secrets Protection Act adds its own measures. In urgent cases, summary proceedings (kort geding) are possible.

When should I contact a Dutch lawyer about an NDA?

Contact a Dutch lawyer before you sign an NDA that protects valuable information, and immediately when you suspect a breach. At MAAK Advocaten in Amsterdam, we review the draft, adjust the penalty and choice-of-law clauses, and, after a breach, secure the evidence and consider summary proceedings.