Trúnaðarsamningur: hvað hann bætir við samkvæmt hollenskum lögum

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 heildarleiðbeiningar um trúnaðarsamninginn.

Hvaðan koma trúnaðarskyldur í hollenskum viðskiptasamböndum?

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.

Hvað bætir trúnaðarsamningur við lögbundna vernd?

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 Tegundir viðskiptasamninga samkvæmt hollenskum lögum útskýrir hvernig þessi skjöl passa saman.

Hvernig verndar þú upplýsingar í samningaviðræðum og áreiðanleikakönnun?

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 áreiðanleikakönnun í hollenskum samrunum og yfirtökum.

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 að slíta viðræðum í Hollandi takast á við hinn helminginn af því vandamáli.

Hvernig tryggir þú öryggi upplýsinga í framboðskeðjunni?

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 gagnavinnslusamningur í Hollandi sets out what it must contain.

Hvernig verndar þú trúnaðarupplýsingar gegn eigin starfsfólki?

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 samkeppnisbannsákvæði samkvæmt hollenskum vinnuréttindum.

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.

Hvað gerir hollenskur dómstóll við sektarákvæði?

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.

Hvað ættir þú að gera þegar trúnaðarupplýsingar leka út?

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).

Hvaða mistök kosta fyrirtæki vernd sína?

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 að vernda viðskiptaleyndarmál.

Hvað ættir þú að athuga sem uppljóstrari?

• 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.

Hvað ættir þú að athuga sem móttakandi?

• 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?

okkar lögfræðingar fyrirtækja 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.

Yfirlit

• The Trade Secrets Act protects genuine trade secrets without a contract, but only if you took reasonable measures to keep them secret.
• Trúnaðarsamningur nær einnig til viðkvæmra upplýsinga sem eru ekki viðskiptaleyndarmál, takmarkar notkun þeirra og stjórnar frekari miðlun.
• Skrifaðu undir áður en þú deilir, skilgreindu upplýsingarnar eftir flokkum og paraðu hugtakið við viðskiptalíf þeirra.
• A penalty clause spares you proving your loss, but under Article 6:94 BW the court can reduce it.
• Eftir leka skal fyrst tryggja sönnunargögnin, senda skriflega tilkynningu og íhuga skyndimeðferð.

Algengar spurningar