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In the Netherlands, lost revenue is claimed as lost profit (gederfde winst) if another party is liable for breach of contract or tortious conduct. Financial loss includes lost profits (Article 6:96(1) Dutch Civil Code). You recover the lost margin, not turnover. The loss must be attributable to the liable party (Article 6:98); if it cannot be calculated exactly, the court estimates it (Article 6:97).
Business owners regularly face income loss caused by another party’s actions. A supplier failing to deliver essential raw materials, a competitor spreading defamatory statements, or a contracting party breaching their obligations – in all these situations, your business operations may halt and your revenue plummet. Dutch law protects you as an injured entrepreneur through the right to full compensation, including the income you lost due to the wrongful conduct.
However, you have to prove your claim. As a rule, the party that relies on facts bears the burden of proving them (Article 150 Dutch Code of Civil Procedure). You must show that you suffered loss, that the loss would not have occurred without the other party’s conduct, and that it can be attributed to that party under Article 6:98 DCC. You must also show what revenue you would have generated without the incident, which often requires financial expertise.
When Can You Claim Lost Revenue Under Dutch Law?
You can claim lost revenue when another party is liable for your financial loss. This usually rests on one of two legal grounds: breach of contract or tort. In case of breach of contract, every failure to perform obliges the debtor to compensate the resulting loss, unless the failure cannot be attributed to the debtor (Article 6:74(1) DCC). Unless performance is already permanently impossible, the debtor must first be in default (Article 6:74(2)).
Consider, for example, a supplier delivering products late or in defective condition, preventing you from executing orders and losing clients.
Tort (onrechtmatige daad) is the other common ground. Under Dutch law, an act is unlawful if it infringes a right, breaches a statutory duty or is contrary to what is proper in society according to unwritten law, unless there is a justification (Article 6:162(2) DCC). The act must also be attributable to the wrongdoer (Article 6:162(3)), and the rule that was breached must protect against the loss you suffered (Article 6:163). A competitor that damages your reputation through false statements, or a third party that damages your business premises and forces you to close temporarily, may act unlawfully.
Causation and attribution under Article 6:98 DCC
Causation is tested in two steps. First, the loss must be a consequence of the event: without the breach or the tort, the revenue would not have been lost. Second, only loss that is so connected with the event that it can be attributed to the liable party as a consequence of it, also in view of the nature of the liability and of the loss, qualifies for compensation (Article 6:98 DCC). Because the article refers to the nature of the liability and of the loss, the court can treat different kinds of loss differently; how strict it is depends on the circumstances of the case. If your revenue would have fallen anyway, for example because of general market conditions or seasonal influences, that part of the loss is not caused by the event.
Fictional example: a restaurant has a supply contract with a fish wholesaler, which suddenly stops delivering. The restaurant switches to a more expensive supplier and takes some dishes off the menu. Its claim covers the extra purchase costs and the margin it lost on dishes it could not sell, not its gross revenue. A comparison with earlier periods helps to show causation. If the restaurant could reasonably have found an alternative supplier sooner, the court may reduce the claim (Article 6:101 DCC).
What Falls Under Lost Revenue as Financial Damage in Dutch Law?
Financial loss (vermogensschade) comprises both losses suffered (geleden verlies) and lost profits (gederfde winst) (Article 6:96(1) DCC). Other loss, such as non-financial loss, is only compensated where the law provides for it (Article 6:95(1)).
The first concerns direct financial damage you already suffered – for instance, costs you incurred or depreciation of your assets. Lost profits, conversely, represent the wealth increase you missed due to the damage-causing conduct.
With revenue loss, the second category predominates. You claim not what you lost, but what you could have earned. This complicates the burden of proof: while actual loss often proves through invoices and receipts, lost revenue requires hypothetical reconstruction. What would your business result have been without the damage-causing event?
How Do You Calculate Lost Revenue Under Dutch Law?
Calculating lost revenue under Dutch law demands comparison between your actual financial result and the result you would have achieved without damage. Here you examine different elements. First, the hypothetical revenue: how many products or services would you have sold?
You base this estimate on historical sales figures, ongoing contracts, order confirmations and market data. If the loss continues into the future, the court can assess future loss in advance, weighing the good and bad chances, or postpone the assessment (Article 6:105(1) DCC).
Subsequently, you deduct costs you would have incurred to realize that revenue. These are the so-called variable costs: purchasing, production costs, personnel costs directly connected to revenue. Your fixed costs generally remain unconsidered, unless these increased due to the damage.
In many revenue damage cases, econometric evidence plays a central role. Experts use comparable periods, industry figures or benchmark data to support your hypothetical revenue. A seasonal business, for example, compares the damage year’s revenue with the same period in previous years, adjusted for growth trends and market changes.
What Costs Can You Claim Beyond Lost Profits in the Netherlands?
Besides lost profits, three cost categories qualify for compensation as financial loss, if they are reasonable (Article 6:96(2) DCC): (a) costs to prevent or limit loss that could be expected from the event, (b) costs to establish the loss and liability, and (c) costs of obtaining payment out of court.
Examples of category (b) are the costs of an accountant who calculates your lost profit or of legal advice on liability. Note that categories (b) and (c) are not awarded separately for work that the court’s order for legal costs normally covers, such as preparing court documents; for that work, only the rules on legal costs apply (Article 6:96(3) DCC and Article 241 Dutch Code of Civil Procedure).
Category (c) covers out-of-court collection costs, such as demand letters and settlement negotiations. These must be reasonable. For commercial agreements, the compensation for collection costs is at least € 40 (Article 6:96(4) DCC). More detailed rules are laid down by decree; for consumer debtors these cannot be departed from to their detriment (Article 6:96(5)).
Statutory Interest: Compensation for Time Loss
An often-forgotten component is statutory interest. Compensation for late payment of a sum of money consists of the statutory interest over the period of default (Article 6:119 DCC). For a damages claim based on tort or on breach of contract (Article 6:74(1)), default arises without a notice of default if the compensation is not paid immediately (Article 6:83(b)), so interest in principle runs from the moment the loss arises. That rate is set by government decree (Article 6:120(1)). The higher commercial interest rate (Article 6:119a) applies to late payment of a sum due under a commercial agreement, such as an unpaid invoice; it equals the ECB refinancing rate plus eight percentage points (Article 6:120(2)).
Legal costs fall under a separate regime. The party that loses the case is ordered to pay the costs of the proceedings (Article 237(1) Dutch Code of Civil Procedure). For lawyers’ fees, the courts use fixed scales (liquidatietarief), so the award usually covers only part of the fees you actually pay.
How Do You Initiate Proceedings for Revenue Damage Under Dutch Law?
The route to compensation usually begins out of court, with a written demand describing the breach or the unlawful act, calculating the loss and setting a reasonable deadline for payment. A registered letter or another form of delivery you can prove is advisable.
For breach of contract, the debtor is in principle only in default after a written notice that sets a reasonable period for performance, and performance does not take place within that period (Article 6:82(1) DCC). No notice is needed in the cases of Article 6:83, for example if a fixed deadline for performance has passed or the debtor has said it will not perform. A demand letter is also useful to interrupt limitation (see below).
If the other party does not respond or refuses to pay, you can start civil proceedings. Claims of up to € 25,000 (including interest accrued until the summons) go to the subdistrict court (kantonrechter), unless the legal basis of the claim exceeds that amount and is disputed (Article 93(a) Dutch Code of Civil Procedure); larger claims go to the civil section of the district court. Before the subdistrict court you can litigate without a lawyer; in other cases you must be represented by a lawyer (Article 79). Proceedings start with a writ of summons served by a bailiff, setting out the facts, the legal grounds and the evidence.
Burden of Proof: Your Responsibility in the Netherlands
As claimant, you generally bear the burden of proof (Article 150 Dutch Code of Civil Procedure). You must prove the breach of contract or the unlawful act, your loss and the causal link. In a contract case, it is then up to the other party to show that the failure cannot be attributed to it (Article 6:74(1) DCC). For lost revenue you therefore collect:
- Financial statements from the period before, during and after the damage
- Comparable figures from previous years, adjusted for growth
- Contracts and order confirmations making future revenue plausible
- Expert reports substantiating your hypothetical revenue
- Correspondence demonstrating the opposing party’s liability
If the extent of the loss cannot be determined precisely, the court estimates it (Article 6:97 DCC). This often happens with lost revenue, because it is hypothetical by nature. You must still provide enough concrete data for a reasonable estimate.
How Does the Court Assess Your Revenue Damage in Dutch Law?
The court appraises your damage in the manner most corresponding with its nature. With revenue damage, this typically means an economic approach where it examines your business operations, market position and financial development.
It compares your actual result with the result you could reasonably have expected without the damage-causing event.
Moreover, the court considers all relevant circumstances. A starting enterprise with limited track record receives lost profits more difficultly than an established company with stable revenue figures. Seasonal influences, economic developments and industry-specific factors play into the court’s assessment.
Contributory Negligence and Duty to Mitigate Damage
Your compensation is reduced if the loss is partly the result of a circumstance attributable to you, including a failure to take reasonable steps to limit the loss. The loss is then divided according to the extent to which the circumstances on each side contributed to it, unless fairness requires a different division because of the differing seriousness of the faults or other circumstances (Article 6:101(1) DCC). If a supplier lets you down, for example, you are expected to look for alternatives in good time.
If the same event that caused the loss also brought you a benefit, the benefit is deducted from the compensation, but only insofar as this is reasonable (Article 6:100 DCC).
What Are Common Pitfalls in Revenue Claims Under Dutch Law?
The most common error is insufficient substantiation of hypothetical revenue. Entrepreneurs regularly overestimate what they would have earned without damage, without supporting this expectation with concrete data. Vague references to “good prospects” or “growing market” rarely convince the court.
You must demonstrate why specific revenue was realistic: through contracts, previous results, or objective market data.
A second pitfall is failing to deduct variable costs. Lost profit does not equal lost revenue. Had you actually realised that revenue, you would also have incurred costs for purchasing, personnel, energy, transport and so on. Only the net result, revenue minus these saved costs, is your lost profit. A claim for gross revenue without this correction is unlikely to succeed.
Deadlines and Limitation in the Netherlands
Watch limitation periods. A claim for damages becomes time-barred five years after the start of the day following the day on which you became aware of both the loss and the person liable for it, and in any case twenty years after the event that caused the loss (Article 3:310(1) DCC). Different rules apply in special cases: a claim against the person who committed a criminal offence that caused the loss does not become time-barred as long as the right to prosecute has not lapsed (Article 3:310(4)), and a thirty-year long-stop applies to certain environmental damage (Article 3:310(2)). This applies to damages claims based on both tort and breach of contract. Some contracts or general terms and conditions contain shorter periods for bringing claims.
You can interrupt limitation by starting legal proceedings (Article 3:316(1) DCC) or by a written demand or written notice in which you unequivocally reserve your right to compensation (Article 3:317(1); the Supreme Court has confirmed that this also applies to claims for damages, ECLI:NL:HR:2014:766). If the period expires, the other party can invoke limitation; the court does not apply it on its own motion (Article 3:322(1)), but if the defence is raised, your claim fails, however justified it may be.
What Role Does Expert Investigation Play in Dutch Law?
In complex cases, the court can order an expert report, at the request of a party or on its own motion, and appoints one or more experts after consulting the parties (Article 186 Dutch Code of Civil Procedure). The expert, typically a forensic accountant or business economist, examines your accounts, analyses market conditions and reconstructs your hypothetical result.
His report subsequently forms important evidence the court weighs heavily.
You can also proactively engage an expert yourself. This offers the advantage that you can already submit the expertise report with the summons, strengthening your evidentiary position. Furthermore, it prevents surprises: should an expert conclude your damage is lower than expected, you know this before proceeding and can adjust your strategy.
An expert investigation can be expensive. If they are reasonable, the costs of your own expert can be recovered as costs of establishing the loss and liability (Article 6:96(2)(b) DCC).
Can mediation or arbitration resolve a lost revenue claim in the Netherlands?
Not every revenue claim requires years of litigation. In mediation, an independent mediator helps you and the other party reach a settlement. It is often faster and cheaper than court proceedings, and parties usually agree on confidentiality.
Whether mediation works depends on the willingness of both parties to settle.
For international commercial transactions, arbitration can be attractive. Parties then submit their dispute to an arbitral tribunal that, like a court, gives a binding decision. Arbitration offers procedural flexibility and arbitrators with industry knowledge, but it requires an arbitration agreement between the parties.
Both routes depend on agreement: mediation on the willingness of both parties, arbitration on an arbitration agreement, which may already be in your contract. Without such agreement, you bring the claim before the Dutch civil courts.
Should You Engage Legal Assistance for Claims in the Netherlands?
Claiming lost revenue through the courts is legally and economically complex. A lawyer experienced in contract and liability law can help you frame and substantiate your claim. In cases outside the subdistrict court, representation by a lawyer is in principle mandatory (Article 79(2) Dutch Code of Civil Procedure); one exception is the defendant in summary proceedings (kort geding), who may also appear in person (Article 255(1)).
Moreover, an attorney can realistically assess your claim’s feasibility. Not every revenue decline leads to awardable damage; sometimes evidence is too weak, causal connection too indirect, or hypothetical revenue too speculative. Honest guidance about these risks saves you disappointments and legal costs.
Contact a Dutch attorney from MAAK if another party has caused you to lose revenue. The sooner you act, the easier it is to secure evidence and to interrupt limitation periods. An initial analysis of your position shows your legal options and the likely value of a claim.
Frequently asked questions about claiming lost revenue in the Netherlands
What does Article 6:96 of the Dutch Civil Code say?
Article 6:96(1) DCC provides that financial loss comprises both losses suffered and lost profits. Under paragraph 2, reasonable costs to prevent or limit loss, to establish the loss and liability, and to obtain payment out of court also qualify for compensation as financial loss.
What does Article 6:98 of the Dutch Civil Code mean for lost profits and pure economic loss?
Article 6:98 DCC limits compensation to loss that is so connected with the event that it can be attributed to the liable party as a consequence of that event, also in view of the nature of the liability and of the loss. The court can therefore assess different kinds of loss, such as purely financial loss, differently.
Is lost revenue the same as lost profit?
No. Lost revenue is turnover you did not receive; lost profit is that revenue minus the costs you saved by not realising it. Dutch law compensates lost profits (gederfde winst) as part of financial loss (Article 6:96(1) DCC).
How do you prove lost profits in a Dutch court?
With figures: financial statements before, during and after the event, comparable periods, contracts, order confirmations and, where needed, an expert report. If the exact amount cannot be determined, the court estimates it (Article 6:97 DCC), but you must provide enough data to support the estimate.
When is a claim for lost profits time-barred in the Netherlands?
Five years after the start of the day following the day on which you became aware of both the loss and the liable person, and in any case twenty years after the event (Article 3:310(1) DCC). A written demand that unequivocally reserves your right to compensation interrupts limitation (Article 3:317(1)).
Primary sources
- Dutch Civil Code, Book 3: Articles 3:310, 3:316, 3:317 and 3:322
- Dutch Civil Code, Book 6: Articles 6:74, 6:82, 6:83, 6:95, 6:96, 6:97, 6:98, 6:100, 6:101, 6:105, 6:119, 6:119a, 6:120, 6:162 and 6:163
- Dutch Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering): Articles 79, 93, 150, 186, 237 and 241
- Supreme Court (Hoge Raad) 28 March 2014, ECLI:NL:HR:2014:766 (interruption of limitation under Article 3:317(1) DCC, also for damages claims)
