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A software licence audit in the Netherlands starts with a letter from the supplier or its auditor. Cooperate within the audit clause, count your own use first and only then share data; settle a shortfall by negotiation where you can. As a Dutch IP lawyer at MAAK Advocaten in Amsterdam, I guide licensees through these audits.
This article, part of intellectual property law in the Netherlands, is for foreign companies and Dutch subsidiaries audited by vendors such as Microsoft, Oracle or SAP under a Dutch-law licence. For drafting the licence, see licence contracts under Dutch law.
What is a software licence audit under Dutch law?
A software licence audit is a check by the software supplier, or an auditor it appoints, of whether your use of its software stays within the licences you bought. Under Dutch law the right to audit comes from the contract: the audit clause.
Software is protected by copyright as a work (Article 10(1)(12°) Dutch Copyright Act). The gap between what you bought and what you use is the shortfall, and the supplier’s back-payment claim (naheffing) is about that gap.
For a licensee from abroad, three Dutch features stand out: the unfair-terms rules often do not apply, a court can reduce a contractual penalty, and in IP cases the loser normally pays the winner’s reasonable legal costs.
You have received an audit letter: what do you do in the first week?
In the first week, acknowledge receipt, appoint one point of contact, collect your licence documents and read the audit clause. Do not hand over data before you know what the contract requires and where you stand.
An audit letter causes unrest, especially when it sets a short deadline and the supplier also provides software you use every day. My advice: stay calm, do not ignore it and do not hand over anything yet. In the first week I do four things.
- Send an acknowledgement of receipt. Short and friendly, with a date for your substantive reply. That keeps the relationship good and buys time without committing to anything.
- Appoint one point of contact. All contact with the supplier and auditor runs through one person, so no IT employee shares data or admits something in a phone call.
- Collect the documents. The licence agreement and product terms that applied when you bought, orders and invoices, proof of entitlement in the supplier’s portal, and an overview of servers, virtualisation and users.
- Read the audit clause. Who may carry out the audit, how often, with what notice, over which period, under what confidentiality, and who pays for what? That determines what you must cooperate with.
Then we respond on substance with a proposal for scope and timing. An audit you help shape almost always runs better than one that simply happens to you.
Has an audit letter landed on your desk? Have the audit clause and your reply to the supplier reviewed by a Dutch IP lawyer before you share any data.
Do you have to cooperate with a software licence audit?
Yes, if your licence contains an audit clause. What the clause allows depends on the meaning the parties could reasonably give it. Reasonableness and fairness (redelijkheid en billijkheid) can supplement it and, where applying it would be unacceptable, limit it (Article 6:248 Dutch Civil Code).
Without an audit clause, cooperating is a choice you make deliberately.
Refusing leads to a contractual dispute and puts the relationship under unnecessary pressure. But cooperating does not mean everything is on the table. Before the audit starts, I agree in writing:
- the scope: which products, which legal entities and which period;
- who audits: the supplier itself or an independent third party, and whether that party signs a confidentiality undertaking;
- which data: preferably aggregated counts, no full access to systems and no personal data that is not needed;
- the timing: a realistic deadline alongside normal work;
- the follow-up: first a draft report on which we can comment, and the report used only for this audit.
Many audit clauses sit in the supplier’s standard terms. Dutch law lets a party annul an unreasonably onerous clause in general terms (algemene voorwaarden) (Article 6:233 Dutch Civil Code). Between businesses, however, those rules apply only if both parties are established in the Netherlands, whatever law governs the contract; what counts is the principal place of business or, where the contract is to be performed by another branch, that branch (Article 6:247). A company that had published its annual accounts (or used the group exemption for them), or employed fifty or more people, when contracting cannot invoke them either (Article 6:235(1)). For a licensee established abroad, and for most larger Dutch subsidiaries, interpreting the contract is the main route.
Should you count first, or run the auditor’s tool?
Count first. A tool measures installations and use, but whether that use needs a licence follows from your licence terms and from the law, not from the tool.
I want my client to know its own figures before the supplier sees them. Think of test environments, servers that have been switched off, back-up copies or virtual machines that are only on standby. So we count first, compare the result with the proof of entitlement and discuss the differences internally. Only then do we hand over data, within the agreed scope.
The Dutch Copyright Act counts as well. Loading, displaying, running and storing a program count as reproduction, to the extent a copy is needed (Article 45i Dutch Copyright Act). Unless agreed otherwise, copies the lawful acquirer needs for the intended use do not infringe, and copies for loading, displaying or error correction cannot be prohibited by contract (Article 45j). A necessary back-up copy is allowed (Article 45k). These rules implement Articles 4 and 5 of Directive 2009/24/EC on computer programs.
| Part of the count | What decides whether it needs a licence |
|---|---|
| Production servers and users | The licence metric (per user, processor or installation) in your licence terms |
| Test, development and standby environments | What the product terms say about those environments |
| Back-up copy | Whether the copy is needed for the use (Art. 45k Copyright Act) |
| Loading and error correction in licensed use | Cannot be prohibited by contract, to the extent needed for the intended use (Art. 45j Copyright Act) |
That statutory room does not free every installation: the licence decides how many users, processors or installations are covered.
The auditor finds a shortfall: dispute or negotiate?
Do both. Dispute on reasoned grounds what you can substantiate and propose a commercial solution at the same time. Whether you used the software outside your licence depends on what the parties agreed, which is a matter of contract interpretation.
The Hague Court of Appeal applied this when a supplier claimed the Dutch State had installed its software more often than licensed (Court of Appeal of The Hague 15 July 2025, ECLI:NL:GHDHA:2025:1751). The court asked what meaning the parties could reasonably give to the supplier’s non-negotiated terms (para. 6.5). With a quantity of “unlimited”, the State could reasonably understand that it could install the configuration without limit (para. 6.7); remaining doubt was for the supplier as drafter (para. 6.10). The court upheld the dismissal of the claim.
A back-billing claim is usually not a final figure but an opening bid. I first go through the report. Is the count right? Has the correct licence metric been applied? Are test and back-up environments rightly included? And do the prices and the period the supplier uses also follow from the contract?
Then we choose the route together. My preference is to dispute, with reasons, what we can substantiate and at the same time propose a commercial solution: for example, buying licences you genuinely need going forward instead of paying for the past, with a full and final settlement. You want to keep using your software and be rid of the risk, and the supplier often remains a partner.
A penalty for over-use is a penalty clause (boetebeding) (Article 6:91 Dutch Civil Code). At your request a Dutch court may reduce it if fairness clearly requires, but not below the statutory damages; that power cannot be excluded (Article 6:94 Dutch Civil Code). Whether a back-billing claim is a penalty depends on the clause: a clause under which you owe a sum because you fell short is a penalty clause, whether it is meant as compensation or only as an incentive (Article 6:91).
When does a licence shortfall become a copyright case?
A licence dispute becomes a copyright case when the supplier relies on its copyright, not only on the contract. The EU Court of Justice held that breach of a licence clause concerning the owner’s IP rights is an infringement under the Enforcement Directive (Directive 2004/48/EC).
That judgment, CJEU 18 December 2019, C-666/18, IT Development, ECLI:EU:C:2019:1099 (paras 42 and 49), concerned modifying source code. The Court stressed that only that situation was before it, not exceeding the number of users or processors (para. 31).
In the Netherlands, a rightholder that makes infringement sufficiently plausible can obtain leave for an evidentiary seizure (bewijsbeslag), if needed without hearing the other side (Article 1019b Dutch Code of Civil Procedure). It can claim damages and surrender of profits (Article 27 and Article 27a Dutch Copyright Act). The losing party is, if claimed, ordered to pay the winner’s reasonable and proportionate legal costs, unless fairness dictates otherwise (Article 1019h).
A threatened copyright action deserves a careful response, but no panic. That cost rule raises the stakes on both sides. My approach is to sharpen the legal position and keep the conversation businesslike. Proceedings are more expensive for almost everyone than a good settlement.
See also protecting software under Dutch law and enforcing IP rights in the Netherlands.
Practice example: a Microsoft audit after an acquisition
A licence shortfall can pass to the buyer in an acquisition, as a published interim judgment shows (District Court of Amsterdam 28 August 2019, ECLI:NL:RBAMS:2019:6379). It is not a case of our firm.
In April 2017 a buyer acquired a Dutch ICT group with hosting subsidiaries. Microsoft then announced an audit by EY, and an internal inventory showed that licences had been under-reported. Based on EY’s report, Microsoft imposed back-billing under the SPLA, which the buyer paid (paras 2.1–2.4 and 2.9–2.12).
The buyer relied on the sellers’ licence warranty, given “to the best of their knowledge” (paras 2.7 and 4.8). The court found it breached (para. 4.14) and held the back-billing up to the acquisition and the audit costs awardable (paras 4.16 and 4.19). The later loss still had to be argued (para. 4.25); this is not a final judgment.
When should you instruct a Dutch lawyer?
Instruct a Dutch lawyer as soon as the audit letter arrives, before any data leaves the company. At that point you can still shape how the audit runs.
The best moment to call me at MAAK Advocaten is the day the audit letter arrives. Your IT team supplies the facts; we decide what happens with them legally.
The cost of assistance depends on the size of your IT environment, the products in the audit, time pressure and whether it stays at negotiation. For software as a service, see your IT contract under Dutch law.
How does MAAK Advocaten handle a software licence audit?
We guide the audit from the first letter to settlement: reading the clause, drafting the reply, agreeing scope and confidentiality, reviewing the draft report and negotiating any shortfall.
To stay ahead of the next audit, I recommend two things. Keep a licence register with the contracts and proof of entitlement per product. And include licences in the due diligence when you acquire a company (see mergers and acquisitions under Dutch law). Arrangements made beforehand cost less than a discussion afterwards.
If it does come to a dispute, we act in first instance and on appeal before the Dutch courts, including summary proceedings (kort geding) after an evidentiary seizure.
Frequently asked questions about software licence audits
What is a software licence audit?
A software licence audit is a check by a software supplier, or an auditor acting for it, of whether your use of its software stays within the licences you bought. Under Dutch law the right to audit follows from the audit clause in the licence terms.
Do I have to cooperate with a software licence audit in the Netherlands?
If your licence contains an audit clause, you cooperate within what it allows. A Dutch court reads the clause by the meaning the parties could reasonably give it, and reasonableness and fairness can supplement or limit it (Article 6:248 Dutch Civil Code). Agree scope, auditor, confidentiality and timing in writing first.
Do Dutch rules on unfair general terms protect a foreign licensee?
Usually not. Between businesses, the Dutch rules on general terms apply only if both parties are established in the Netherlands, whatever law governs the contract (Article 6:247 Dutch Civil Code), and larger companies are excluded anyway (Article 6:235). A Dutch subsidiary contracting with the supplier’s Dutch entity can rely on them, unless Article 6:235 excludes it; a foreign licensee relies mainly on interpretation of the contract.
What happens if the audit shows too few licences?
Check the count, the licence metric, included test and back-up environments, prices and period. Dispute what you can substantiate and propose a solution, such as licences you need going forward instead of back-payment, with a full and final settlement. A Dutch court can reduce a contractual penalty (Article 6:94 Dutch Civil Code).
Can the software supplier take us to a Dutch court?
Yes, if the Dutch courts have jurisdiction. The EU Court of Justice held that breach of a licence clause concerning copyright can be an infringement under the Enforcement Directive (C-666/18); that case concerned modified source code, not too many users. The supplier can then seek an evidentiary seizure (Article 1019b Dutch Code of Civil Procedure).
Primary sources
- Article 10 Dutch Copyright Act (Auteurswet): computer programs are works (paragraph 1, point 12°)
- Article 27 Dutch Copyright Act: damages for infringement
- Article 27a Dutch Copyright Act: surrender of profits and accounting
- Article 45i Dutch Copyright Act: loading, displaying, running and storing as reproduction
- Article 45j Dutch Copyright Act: reproduction by the lawful acquirer; loading and error correction cannot be prohibited by contract
- Article 45k Dutch Copyright Act: back-up copy
- Article 6:91 Dutch Civil Code: penalty clause
- Article 6:94 Dutch Civil Code: reduction of a penalty
- Article 6:233 Dutch Civil Code: unreasonably onerous clause in general terms
- Article 6:235 Dutch Civil Code: no protection for larger parties
- Article 6:247 Dutch Civil Code: general terms rules in international contracts between businesses
- Article 6:248 Dutch Civil Code: supplementing and limiting effect of reasonableness and fairness
- Article 1019b Dutch Code of Civil Procedure: evidentiary seizure and description in IP cases
- Article 1019h Dutch Code of Civil Procedure: legal costs in IP cases
- Directive 2009/24/EC, OJ L 111 of 5 May 2009: legal protection of computer programs (Articles 4 and 5)
- Directive 2004/48/EC, OJ L 157 of 30 April 2004 (corrigenda OJ L 195 of 2 June 2004 and OJ L 204 of 4 August 2007, p. 27): enforcement of intellectual property rights (Enforcement Directive)
- Court of Justice of the EU 18 December 2019, C-666/18, IT Development, ECLI:EU:C:2019:1099: breach of a licence clause concerning IP rights falls under the Enforcement Directive
- Court of Appeal of The Hague 15 July 2025, ECLI:NL:GHDHA:2025:1751: interpretation of a software licence; doubt at the expense of the drafter
- District Court of Amsterdam 28 August 2019 (interim judgment), ECLI:NL:RBAMS:2019:6379: Microsoft audit after an acquisition; licence warranty in the share purchase agreement
Received an audit letter from a software supplier? Put your situation to me: call +31 20 210 31 38 or send your question through my page as Dutch intellectual property lawyer. — Arnout Gieske
