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A cooperation agreement (samenwerkingsovereenkomst) is a contract in which parties agree to work towards a shared goal. Dutch law has no separate statute for it. If you bring something into a common pool to share the profit, it can be a partnership (maatschap, Article 7A:1655 Dutch Civil Code), or a general partnership (VOF) if you run a business under a common name (Article 16 Dutch Commercial Code).
This page explains what a cooperation agreement is, when it becomes a maatschap or VOF, who is liable, what the agreement should contain and how it ends. Our Dutch corporate lawyers draft and review cooperation agreements for Dutch and international businesses.
What is a cooperation agreement under Dutch law?
A cooperation agreement (samenwerkingsovereenkomst) is not a separate type of contract in the Dutch Civil Code (Burgerlijk Wetboek). Parties use it to collaborate on a shared purpose, for example a joint project, a shared product or joint purchasing, without necessarily setting up a separate company. The agreement is formed by an offer and its acceptance (Article 6:217(1) DCC). Unless the law provides otherwise, no particular form is required (Article 3:37(1) DCC). One exception: a VOF must be entered into by notarial or private deed, although the absence of a deed cannot be invoked against third parties (Article 22 Dutch Commercial Code). Do not confuse a cooperation agreement with a cooperative (coöperatie): that is an association incorporated by notarial deed as a cooperative, which aims to meet certain material needs of its members (Article 2:53(1) DCC).
Because Dutch law applies freedom of contract, the parties largely determine the content themselves. There are limits. A contract that by its content or purpose conflicts with good morals or public order is void, and a conflict with a mandatory statutory provision can make it void or voidable (Article 3:40 DCC). A contract also has the legal effects that follow from the law, custom and the requirements of reasonableness and fairness (Article 6:248(1) DCC). A rule that applies between the parties under their contract does not apply to the extent that this would be unacceptable by standards of reasonableness and fairness in the circumstances (Article 6:248(2) DCC).
Does a cooperation agreement create a partnership or VOF?
It can, even without that label. Under Dutch law, a partnership (maatschap) is an agreement in which two or more persons undertake to bring something into a common pool in order to share the resulting benefit (Article 7A:1655 DCC). A partner’s contribution can consist of money, goods, the use of goods or work (Article 7A:1662(1) DCC). A maatschap entered into to run a business under a common name is a general partnership (vennootschap onder firma, VOF) (Article 16 Dutch Commercial Code). Whether your cooperation is a partnership depends on the content of what you agreed, not on the title of the document.
The form matters for liability. In a VOF, each partner who is not excluded from doing so can act in the name of the partnership and bind it towards third parties (Article 17(1) Dutch Commercial Code), and each partner is jointly and severally liable for the obligations of the partnership (Article 18 Dutch Commercial Code). In a maatschap, the partners are not each liable for the whole debt, and a partner can only bind the others if they have authorised him to do so (Article 7A:1679 DCC). A creditor can claim from the partners he dealt with an equal share each, unless it was expressly agreed when the debt was incurred that they would bear it in proportion to their share in the partnership (Article 7A:1680 DCC). Choosing the form deliberately (plain contract, maatschap, VOF or a joint-venture company such as a BV) is therefore an important early decision. If you do not want a partnership, make clear in the contract that each party acts for its own account.
What is the difference between a maatschap and a VOF?
Both are partnerships, but they differ in the activity. A VOF is a maatschap entered into to run a business under a common name (Article 16 Dutch Commercial Code). A maatschap that does not run a business under a common name remains a maatschap (Article 7A:1655 DCC). The difference matters for liability: the partners of a VOF are jointly and severally liable for its obligations (Article 18 Dutch Commercial Code), while a creditor of a maatschap can in principle claim an equal share from each partner he dealt with (Article 7A:1680 DCC). The partners of a VOF must register it in the commercial register (Article 23 Dutch Commercial Code). As long as this has not happened, the VOF is treated, as regards third parties, as a partnership for all matters, entered into for an indefinite period, in which no partner is excluded from acting and signing for the firm (Article 29 Dutch Commercial Code). The way you actually agreed to cooperate, not the label you use, decides which form applies.
What should a cooperation agreement contain?
A workable cooperation agreement sets out the shared purpose, each party’s contributions, how profit, loss or costs are shared, decision-making and governance, ownership of intellectual property, confidentiality, and the duration of the cooperation.
Also agree how a party can exit, what happens to contributions and intellectual property when the cooperation ends, which law applies and how disputes are resolved. Clear rules on these points stop a disagreement from becoming a deadlock.
How do you end a cooperation agreement under Dutch law?
First check what your agreement says about duration and termination. If neither the law nor the agreement regulates termination, a cooperation agreement entered into for an indefinite period can in principle be terminated by notice. Depending on the nature and content of the agreement and the circumstances, reasonableness and fairness may require a sufficiently serious ground, a certain notice period, or an offer to pay compensation (Dutch Supreme Court 28 October 2011, ECLI:NL:HR:2011:BQ9854, ground 3.5.1).
If the other party fails to perform, you can dissolve (ontbinden) the contract in whole or in part, unless the failure, given its special nature or minor significance, does not justify dissolution with its consequences (Article 6:265(1) DCC). Insofar as performance is not permanently or temporarily impossible, the other party must first be in default (Article 6:265(2) DCC). You dissolve by a written statement, or you ask the court to pronounce the dissolution (Article 6:267 DCC). Read more about terminating a contract under Dutch law.
Different rules apply if the cooperation is a maatschap or VOF. Articles 6:265 to 6:279 DCC on dissolution for non-performance do not apply to it (Article 7A:1684(3) DCC). A partnership ends, among other things, when the agreed period expires and by notice of a partner to the other partners (Article 7A:1683 DCC). A notice that conflicts with reasonableness and fairness is voidable, and a partnership for a fixed period or for a specific project cannot be terminated by notice unless this was agreed (Article 7A:1686 DCC). At the request of any partner, the court can dissolve the partnership for serious reasons (gewichtige redenen). Such a dissolution has no retroactive effect, and the court can attach conditions and order a partner who failed to perform to pay damages (Article 7A:1684(1)-(2) DCC).
What can go wrong without a written cooperation agreement?
Consider two Dutch companies that agree to develop and sell a product together and share the revenue, but never record who owns the resulting design or how either party can leave.
When one wants to exit and keep the design, there is no agreed rule. Who owns the design then depends on who created it and on the general rules of intellectual property law. How the cooperation can be ended depends on whether it is a plain contract or a partnership, as explained above. Because the two companies develop and sell a product together and share the revenue, a court may even find that they formed a maatschap or VOF, with the liability that comes with it. A short clause on intellectual-property ownership and on exit would have avoided much of this dispute.
Frequently asked questions about cooperation agreements under Dutch law
What is a cooperation agreement under Dutch law?
A contract in which two or more parties agree to work together towards a shared goal, for example a joint project or joint purchasing. Dutch law has no specific statute for it, so the general rules of contract law apply (Book 6 DCC). If the parties bring something into a common pool to share the benefit, the cooperation can be a maatschap (Article 7A:1655 DCC) or a VOF (Article 16 Dutch Commercial Code).
What is a vennootschap onder firma (VOF) in the Netherlands?
A VOF, or general partnership, is a maatschap entered into to run a business under a common name (Article 16 Dutch Commercial Code). It is entered into by notarial or private deed, but the absence of a deed cannot be invoked against third parties (Article 22). The partners must register it in the commercial register (Article 23). Each partner is jointly and severally liable for the obligations of the VOF (Article 18).
Who is liable in a VOF or a maatschap?
In a VOF, each partner is jointly and severally liable for the obligations of the partnership, so a creditor can claim the full amount from each partner (Article 18 Dutch Commercial Code). In a maatschap, the partners are not each liable for the whole debt; a creditor can claim an equal share from each partner he dealt with, unless it was expressly agreed when the debt was incurred that they would bear it in proportion to their share (Articles 7A:1679 and 7A:1680 DCC).
How can a partner leave a maatschap or VOF?
A partnership entered into for an indefinite period ends, among other things, by notice of a partner to the other partners (Article 7A:1683 DCC). A notice that conflicts with reasonableness and fairness is voidable, and a partnership for a fixed period or a specific project can only be terminated by notice if this was agreed (Article 7A:1686 DCC). In a conflict, any partner can ask the court to dissolve the partnership for serious reasons, without retroactive effect (Article 7A:1684 DCC). Agree in advance whether the partnership continues between the remaining partners, and on what terms.
Is a cooperation agreement the same as a joint venture?
A joint venture is a form of cooperation. It can be purely contractual, in which case it can qualify as a maatschap or VOF, or run through a jointly owned company, often a BV. A BV is incorporated by notarial deed, and a shareholder is not personally liable for acts performed in the name of the company (Article 2:175(1)-(2) DCC). Read more about a joint venture in the Netherlands.
Primary sources
- Dutch Civil Code (Burgerlijk Wetboek), Book 2: Article 2:53 and 2:175
- Dutch Civil Code, Book 3: Article 3:37 and 3:40
- Dutch Civil Code, Book 6: Article 6:217, 6:248, 6:265 and 6:267
- Dutch Civil Code, Book 7A: Articles 7A:1655, 7A:1662, 7A:1679, 7A:1680, 7A:1683, 7A:1684 and 7A:1686
- Dutch Commercial Code (Wetboek van Koophandel): Articles 16, 17, 18, 22, 23 and 29
- Dutch Supreme Court 28 October 2011, ECLI:NL:HR:2011:BQ9854 (ground 3.5.1)
Speak to a Dutch corporate lawyer
Whether your cooperation should be a plain contract, a maatschap, a VOF or a joint-venture company depends on liability, tax and control. Our Dutch corporate lawyers advise on the right form and draft an agreement that fits your goals. Contact us to discuss your cooperation.
