Clauza penală într-un contract de muncă: când este valabilă?

A penalty clause (boetebeding) in an employment contract lets the employer claim a fixed sum when the employee breaches a specific obligation, such as a non-compete, non-solicitation or confidentiality clause. It is only valid if it meets Article 7:650 of the Dutch Civil Code (BW): agreed in writing, naming the rules that carry a penalty and the amount, and stating the destination of the money.

The main exception concerns employees who earn more than the statutory minimum wage: with them, the employer may agree in writing to depart from the rules on destination, amount and weekly maximum (Article 7:650(6) BW). The court can then always reduce a penalty that it finds excessive.

What does a penalty clause do?

It fixes in advance what the employee owes for a specific breach. The employer then only has to prove the breach, not the actual loss.

An example to illustrate: a sales manager leaves for a competitor and approaches your clients. Proving the lost turnover is difficult; with a penalty linked to a non-solicitation clause (relatiebeding), the agreed amount is due once the breach is proven. The clause itself creates no obligation: it attaches a financial consequence to an obligation laid down elsewhere in the contract. Under Article 7:650(8) BW, penalty clauses within the meaning of Articles 6:91-6:94 BW, such as those attached to a non-compete clause (concurrentiebeding), fall under the same rules.

Penalty clauses are most common where client relationships and confidential information are the core of the business, such as finance, IT, consulting and recruitment. Check whether your collective labour agreement (cao) contains its own rules.

Which requirements does Article 7:650 BW set?

Five requirements apply. If the clause does not meet them, it is void (Article 7:650(6) BW) and the employer cannot rely on it.

• The contract states which rules carry a penalty and how high the penalty is (paragraph 1).
• The clause is agreed in writing (paragraph 2).
• The clause states precisely the destination of the penalty, and the penalty may not benefit the employer personally, directly or indirectly (paragraph 3).
• Each penalty is a fixed amount in the currency of the wage (paragraph 4).
• Within one week, total penalties may not exceed half a day’s wage, and no single penalty may exceed that amount (paragraph 5).

What changes for employees above the minimum wage?

For employees whose hourly wage exceeds the applicable minimum wage, the parties may depart in writing from paragraphs 3, 4 and 5. That is why penalty clauses for higher-paid staff often contain substantial amounts per breach and per day, and sometimes let the penalty go to the employer. In that case, the court may always set the penalty at a lower amount if it considers it excessive (Article 7:650(6) BW). If the wage later drops to the minimum wage, the departure is suspended (paragraph 7).

How do you draft a penalty clause that holds up?

Describe exactly which conduct leads to a penalty, state the amount, fix the destination, and have the employee sign. Then check whether the amount fits the position and the salary.

• A clear link to the underlying obligation, such as a non-compete, non-solicitation or confidentiality clause.
• A fixed amount per breach and, where relevant, an amount per day the breach continues.
• The destination of the penalty, or an express written departure from paragraph 3 for employees above the minimum wage.
• Whether the employer may claim additional damages on top of the penalty.
• The employee’s signature on the contract or an addendum.

Vague wording invites disputes about whether there was a breach at all. “Any breach of company rules” or “harming the interests of the company” does not state which rules carry a penalty, as paragraph 1 requires. “Reports must be submitted by 5 pm every Friday” does.

Avoid one standard clause for all staff. A penalty that is modest for a senior account manager can amount to several months’ salary for a junior employee, which makes reduction by the court more likely.

Can you add a penalty clause to an existing contract?

Only with the employee’s consent. For new employees, include the clause in the employment contract; for current employees, agree a signed written addendum, as Article 7:650(2) BW requires a written agreement.

An employee who refuses to sign cannot be forced. Explain the purpose of the clause and consider alternatives, such as a clearer confidentiality policy.

How does the court assess a penalty clause?

The subdistrict court (kantonrechter) first checks the formal requirements of Article 7:650 BW, then whether there was a breach, and finally whether the amount is acceptable.

The court can reduce a penalty. Under Article 6:94 BW, it does so only if fairness clearly requires it, and not below the statutory damages; for a clause with a written departure under Article 7:650(6) BW, it can reduce a penalty it considers excessive. Courts weigh the nature and seriousness of the breach, whether it was intentional, the loss actually suffered, the employee’s position and income, and the length of the employment.

The purpose of the clause matters too. Protecting trade secrets and client relationships is legitimate; a clause that mainly serves to keep employees from leaving at all is not. Our article on nine colleagues who moved to a competitor discusses a dispute about a breached non-solicitation clause.

How do you enforce a penalty clause?

Gather evidence, send a written demand (sommatie), give the employee a chance to respond, and go to the subdistrict court if payment does not follow.

Collect concrete evidence, such as e-mails, witness statements or log files. In the demand, state the obligation breached, the facts, the amount and the payment period. A settlement, for example a lower amount or a payment plan, often saves both parties time and costs.

Set-off against wages is limited. Under Article 7:632 BW, during employment the employer may only set off a penalty under Article 7:650 BW against wages if it provides a written statement of the amount, the date, the reason and the provision breached; statutory protection of part of the wage continues to apply.

Ce ar trebui să verifici ca angajator?

• Is the clause in a written, signed contract or addendum?
• Does it name the specific obligations that carry a penalty and the amount per breach?
• Does it state the destination, or contain a valid written departure for an employee above the minimum wage?
• Is the amount proportionate to the position and salary of this employee?
• Do you have concrete evidence of the breach before you send a demand?

Ce ar trebui să verifici ca angajat?

• Did you sign the clause in writing, and does it state precisely which conduct is penalised?
• Does your wage exceed the minimum wage, and was a departure from paragraphs 3, 4 and 5 agreed in writing?
• Is there proof of the breach, or only a suspicion?
• Is the amount excessive in relation to the breach and your income, so that the court could reduce it?
• Has your employer set off the penalty against your wages without a written statement (Article 7:632 BW)?

What can we do for you with a penalty clause?

Gama de avocați angajați assist employers and employees with penalty, non-compete and non-solicitation clauses.

• We draft or review the penalty clause against Article 7:650 BW.
• We tailor the amounts to the position and salary of each group of employees.
• We assess whether a claimed penalty is due and whether it can be reduced.
• We draft the written demand or the response to it.
• We conduct proceedings before the subdistrict court about the penalty.

Rezumat

• A penalty clause attaches a fixed sum to breach of a specific obligation, such as a non-compete or confidentiality clause.
• Article 7:650 BW requires a written clause stating the rules, the amount and the destination; the employer may not benefit and weekly penalties are capped at half a day’s wage.
• For employees above the minimum wage, the parties may depart in writing from the rules on destination and amount, but the court can always reduce an excessive penalty.
• Enforcement requires evidence and a written demand; set-off against wages is only allowed within Article 7:632 BW.

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