The main source of private law governing the construction market in the Netherlands is the Dutch Civil Code, or DCC (Burgerlijk Wetboek), in particular Books 3, 5, 6 and 7. Specifically, Title 12 of Book 7 DCC contains statutory provisions regarding construction (aanneming van werk). Title 12 of Book 7 DCC was amended by the Quality Assurance Construction Act (Wet kwaliteitsborging voor het bouwen) on 1 January 2024. These can be found at the website here.

The most relevant public law act governing the construction market is the Environment and Planning Act (Omgevingswet) with its subsequent decrees (the Environment and Planning Decree (Omgevingsbesluit), the Structures (Living Environment) Decree (Besluit bouwwerken leefomgeving), the Environmental Activities Decree (Besluit activiteiten leefomgeving) and the Environmental Quality Decree (Besluit kwaliteit leefomgeving).

Implementing EU law, the Public Procurement Statute 2012 (Aanbestedingswet 2012) regulates procurement procedures.

The following sets of Dutch general conditions are used for construction works contracting:

• for a “traditional” construction contract: the UAV 2012;
• for a design-and-build contract (with the additional option of maintenance): the UAV-GC 2025; and
• for a design/consultancy contract: DNR 2011.

The UK standardised contracting systems of the New Engineering Contract (NEC) and FIDIC are also used, though less commonly.

UAV 2012

The UAV 2012 conditions are commonly used for an employer-contractor contractual relationship. These conditions are mostly used in traditional construction contracts, where the employer is responsible for the design and specifications of the works, and the contractor is responsible for the execution of the works in compliance with the specifications.

The wording of the UAV 2012 was jointly agreed upon by representatives of employers and contractors (paritaire voorwaarden).

UAV-GC 2025

The UAV-GC conditions have been recently updated. The 2005 edition has been replaced by a 2025 edition. The UAV-GC are commonly used for an employer-contractor contractual relationship in a design-and-build project. They are used in integrated contracts in which the design responsibility is also part of the contractor’s responsibilities, and its extent depends on the contract. The most common contractual conditions are discussed below. The extent to which the contractor is responsible for the design of the works can vary from partly to almost fully, and is optional for the parties.

The wording of the UAV-GC was also jointly drafted by representatives of both employers and contractors.

For public authorities, using the UAV 2012 or UAV-GC 2005 is the standard: its integral use is mandatory unless a deviation is duly motivated. As mentioned, the UAV 2012 and the UAV-GC 2025 have a firm basis in the sector, because of the joint draft by representatives of employers and contractors.

DNR 2011

The DNR 2011 conditions are commonly used in contractor-designer/consultant or employer-designer/consultant contractual relationships. The majority of Dutch architects, engineers and consultants are working with the DNR 2011. These conditions govern the responsibility and liability of designers/consultants.

FIDIC

Although being a UK contracting system, FIDIC is not tailored to Dutch law, these conditions are also used for governing Dutch employer-contractor contractual relations. There are different types of FIDIC contracts, and choosing a particular contract will depend on the scope of the work and the risk allocation in the project:

• the FIDIC Red Book is used for works in which the employer carries out the design and the contractor carries out the works;
• the FIDIC Yellow Book is used in works where the contractor both designs and executes the works; and
• the FIDIC silver book is used for so-called turnkey contracting.

In construction projects, the employer is (in principle) either a public authority or a private company. The general rights and obligations of the employer in construction contracts depend strongly on the material content of the contract between the parties. In traditional contracts (under the UAV 2012), the employer is responsible for the design, the permits and the soil. In general, the employer will arrange the financing of the project. Alternatively, the contractor can also be in charge of arranging the financing of the project (see 2.2 The Contractor).

The contractor is responsible for the construction of the works. In integrated contracts, the execution of the construction as well as (part of) the design is a contractor’s responsibility. Additionally, the responsibility for the maintenance of the works after completion can also be attributed to the contractor. In some cases, the contractor may be tasked with arranging finance for the project – in this case, general project financing will be used, where the contractor attracts funding from lenders on a limited or non-recourse basis.

Often, the (main) contractor will contract subcontractors for particular parts of the project. The contractor will be the responsible party vis-à-vis the employer and will correspond with the employer.

In significant construction projects within the Netherlands, the contractor is typically one of the major private construction companies: ie, Koninklijke BAM Groep, Volkerwessels, Koninklijke Boskalis, Strukton, TBI Holdings or Dura Vermeer) or international private companies (Denys, Fluor, Besix and Strabag). To distribute risks, these construction companies (or their subsidiaries) may form a consortium and create a special purpose vehicle (SPV) to carry out a project.

In commercial construction contracting, commonly, the main contractor will not be able to execute the project alone. The main contractor will subcontract specialised parties, which are able to perform specific, specialised parts of the project scope. In general, the main contractor will co-ordinate all subcontractors and their respective scopes of work. Obligations of the main contractor vis-à-vis the employer are generally passed on to the subcontractors on a back-to-back basis.

External financing for Dutch construction projects (if applicable) is usually provided by Dutch national banks (such as ABN Amro, ING and Rabobank) or international banks. Other potential lenders/financiers are pension funds. In the event of project finance, the lenders perform due diligence on the project and on all contracts and permits regarding the project. A specific facility will be formed for the project on the basis of non-recourse or limited recourse financing.

The responsibility for the execution of the design can be borne by the employer itself, but will generally be outsourced to a design agency/an architectural firm. The previously mentioned DNR 2011 conditions are generally used to govern these contracts.

The scope of work is generally laid out in a programme of requirements (programma van eisen). In case the design has been completed by the employer and the scope of the construction contract is solely the execution of the works, the scope of work is laid out in the specifications (bestek), containing the technical requirements of the project. These documents are generally attached to the construction contract in an annex.

In general, both the employer and the contractor have the right to instigate alterations of the works in a request for change (verzoek tot wijziging, or vtw). The scope and the price of the changes is subject to negotiation between the employer and the contractor, whereby the parties often agree beforehand on the applicable unit rates.

In traditional construction contracts, the employer is responsible for the design and the contractor is only responsible for the execution of the works (the execution often also includes detailed technical engineering). Alternatively, the contractor will take on (part of the) design responsibility – eg, in integrated construction contracts. 

In general, the contractor is responsible for the execution of the construction works. It is possible for the contractor to instruct subcontractors regarding parts of the works – in that case, the contractor remains responsible for the works of these subcontractors vis-à-vis the employer and, generally, also for the co-ordination of the subcontractors.

The employer is usually responsible for the site and access to the site. Responsibility for the soil and the soil conditions, including underground obstacles and pollution, is generally also borne by the contractor. It is possible, however, for the parties to agree otherwise in the contract.

Permits are governed by (local) public law. Public environmental law has significantly changed since 1 January 2024 when the Environment and Planning Act entered into force. Before that, under the Environmental Permitting (General Provisions) Act (Wet algemene bepalingen omgevingsrecht, or Wabo), the permit requirement concerned an entire project or a facility. Furthermore, (municipal) zoning plans governed whether a permit was required. The permit assessment rules had to be clarified in the zoning plan. Therefore, it should be relatively predictable whether a permit would be granted (or not). In case a permit was needed, the responsible party could apply for an “all-in-one permit” (omgevingsvergunning). Permit procedures that were initiated before 2024 still fall under this regime.

Since the Omgevingswet entered into force in 2024, the permit requirement does not concern a project, but an “activity”. In principle, the responsible party applies for (separate) permits for separate “environment plan activities” (omgevingsplanactiviteiten). Zoning plans should have been (de facto: will be) replaced by one single environment plan per municipality. These environment plans will govern the entire municipality. In these plans, the municipality will be able to incorporate opener norms on (building) activities. The actual assessment of building plans will be moved to the permit procedure, which makes the outcome of a procedure (generally) less predictable.

This permit needs to be adhered to by all parties. The permit application responsibility will generally be assigned in the construction contract to the employer. The contractor is generally responsible for other permits regarding the execution of the works.

Usually, the employer is responsible for maintaining the works after delivery. However, maintenance contracts for certain parts of the works can also be concluded between the parties involved in the construction process.

Besides the construction function, it is possible for the design function, the maintenance function, operation or finance function to be assigned to the contractor. It is also possible for only some of these functions to be assigned to the contractor.

Generally required in installation contracts, it is the contractor who usually bears responsibility for testing. Tests are carried out shortly before, and possibly after, completion.

In general, the contractor notifies the employer of the moment when the works will be completed and can be inspected for completion and delivery. If the employer then approves the works, delivery and taking over of the works takes place, and the risk associated with the work transfers from the contractor to the employer.

Besides project-specific arrangements governed in the relevant construction contract, the employer cannot withhold approval of the works in case of (solely) minor defects that do not prevent the employer from using the works and that can be remedied within a reasonable time frame. These minor defects will be put on a “snag(ging) list”. It is possible that after takeover the contractor will remain liable for (hidden) defects.

The risk and responsibility for the works are generally transferred from the contractor to the employer after takeover. Minor defects after completion/takeover can be noted on the snagging list and remedied by the contractor within a reasonable time after delivery or takeover. Hidden defects that appear after takeover (however, within a specified timeframe) are generally to be remedied by the contractor, if the employer can prove that the contractor is liable for these defects. If parties agree on a defect liability period after completion, the contractor is responsible for remedying all defects occurring within that period. The scope of obligations of the contractor during the defects liability period can vary per project – ie, construction contract.

The contract price is subject to negotiation between the relevant parties or to a procurement procedure. The contract price can be a lump sum or the parties can agree on a unit rate contract, a cost reimbursable contract or a cost-plus contract.

The contract price generally entails:

• the direct costs for the execution of the works;
• site costs; and
• a surcharge for insurance, general costs, profit and risk.

Milestone payments are often used.

In construction contracts, a regime for indexation is generally laid down. This applies to the contract price and possibly other amounts.

Payment arrangements are included in the construction contract. These arrangements may vary. Payments can be linked to certain milestones within the project, or parties may have agreed on a lump sum basis for payment. Milestone payments are due after completion of the relevant milestone, while a lump sum payment is usually payable after completion.

In standard construction contracts, late payment is matched with an interest rate. Parties could have agreed on the (substantial) lack of payment or structural late payment constituting a default or breach of contract, allowing the contractor to suspend the works and, ultimately, to terminate the contract. 

In general, the contractor sends invoices to the employer. These invoices are usually payable after a period of 30 days.

Parties generally agree upon a commencement date and a long stop date for completion. Sometimes, milestone dates are applied, by which time part of the works must have progressed to a specific stage, generally with a corresponding milestone payment being due and often with a corresponding milestone certificate. Alternatively, the time for completion of the works can be expressed in a number of “workable working days”, calendar days, weeks or months.

In general, the contractor is free to make the planning/time schedule for the execution of the works, as long as this time schedule adheres to the planning in the agreement. The time schedule is safeguarded by:

• monitoring the progress of the works;
• linking (interim) payments to progress achieved; and
• applying penalties in the event of late completion.

In general, construction contracts contain a construction plan, milestones for completion and often payments connected to those milestones. Delays which cause milestones not to be achieved result in later payment and sometimes also in penalties.

In the event of such delays, the parties can agree on the contractor taking acceleration measures. The costs of acceleration measures are usually borne by the party responsible for the delay. The law and the standard conditions set out in UAV 2012 and UAV-GC 2025 do not contain specific provisions on acceleration measures. A contractor that has caused delay can be forced in court to provide for timely delivery of the works according to the contract, but generally, the contract contains penalties for delays. These penalties are generally in the form of a fixed compensation.

In the event of delays in the execution of the works caused by the contractor, the remedies available to the employer usually include:

• penalties;
• the postponement of interim payments; and
• if it becomes apparent that the contractor will not deliver the works in time, dissolution of the contract.

The standard forms UAV 2012 and UAV-GC 2025 contain provisions regarding extensions of time for the contractor. The typical manner for the contractor to request an extension of time would be a written request to the employer, stating the cause for the delay and invoking the applicable contractual right to an extension of time.

Contracts can contain a force majeure clause, stating that, in extraordinary events that are beyond the parties’ control, the contractor and the employer are not bound by the contract and/or are not liable for damages. The most common events mentioned in these clauses include war, rebellion, riot and natural catastrophes. In the case of force majeure events, the contractor is usually entitled to an extension of time.

Unforeseen circumstances are regulated by mandatory law. If circumstances occur and the parties have not provided for the occurrence of these circumstances in the contract, the law provides for the possibility that the contract can be amended or dissolved by the court (Article 6:258 DCC). Also, the standard forms UAV 2012, UAV-GC 2005 and DNR 2011 contain clauses relating to unforeseen circumstances.

Disruption not caused by the contractor can give the contractor grounds for extension of time and/or compensation. Standard forms UAV 2012, UAV-GC 2005 and DNR 2011 contain clauses that could provide the basis for a disruption claim. The burden to prove the cause of the disruption and its length lies with the contractor. The method for proving the cause/length of disruption varies from case to case; it typically involves comparing the predicted lead time with the actual lead time of a particular part of the works.

It is possible to exclude liability under Dutch law; however, liability for wilful misconduct (opzet) and gross negligence (bewuste roekeloosheid) cannot be excluded. Furthermore, and as a general rule, an exclusion of liability cannot be invoked if under the given circumstances this would be unacceptable according to the standards of reasonableness and fairness.

Under Dutch law, the concepts of wilful misconduct and gross negligence exist. Liability for wilful misconduct (opzet) and gross negligence (bewuste roekeloosheid) cannot be contractually excluded under Dutch law.

Dutch law allows the parties to contractually limit their liability. However, standard form UAV 2012 does not contain any limitations of liability, except for a limitation in time for hidden defects. Standard form UAV-GC 2005 contains a limitation of liability for hidden defects of 10% of the contract price. If limitations of liability are agreed upon in a construction contract, these limitations often exclude the liability for indirect or consequential damages, and limit the contractor’s liability to a percentage of the contract sum.

Indemnities are used to limit risk for one party and they are rather commonly used in construction contracts. It is common for the contractor to indemnify the employer against claims resulting from the execution of the works or negligence or claims resulting from adhering to statutory obligations. 

It is common for the contractor to guarantee the performance of parts of the works or the complete works during a certain period of time. It is also common to agree on a defects liability period during which the contractor is obliged to remedy all defects in the works.

The contractor is usually obliged to insure the works completely with a construction all-risk (CAR) insurance. Usually, the party responsible for the design also takes out a professional indemnity (PI) insurance for design errors/flaws.

The parties are generally entitled to terminate the contract in the event of insolvency of the other party.

Joint responsibility for certain risks can be set out in a construction contract. This is the case in partnering and alliancing contracts. These types of contracts are used, but in exceptional cases.

In general, the employer’s and the contractor’s personnel are described in the construction contract. Key personnel on both sides (if any) are selected, and the parties to the contract must be advised of any changes, or they must be consented to. Specific obligations and instructions can be assigned to the selected personnel.

The right to subcontract can be regulated or limited in a construction contract. In general, subcontracting is permitted.

Intellectual property, patents, copyrights, trade marks and industrial properties are generally regulated in the sense that the parties determine which party holds these rights. It is possible for one party to indemnify another party against a third-party claim alleging infringement of one of these rights.

In the event of a default under the construction contract by the employer, the contractor is generally entitled to:

• claim performance of the contract;
• claim damages (alternative compensation);
• invoke on a right of suspension;
• invoke on a right of retention; and
• terminate the contract.

In the event of a default under the contract by the contractor, the employer is generally entitled to:

• claim performance of the contract;
• claim damages (alternative compensation);
• invoke on a right of suspension; and
• terminate the contract.

These rights and remedies can be altered in the contract. The party concerned is generally required to send a notice of default before claiming damages and/or terminating the contract.

Retention rights are frequently limited in construction contracts. It is also possible to contractually limit suspension rights and the right to terminate the agreement. 

Except for offshore and industry construction contracts, sole remedy clauses are not typically used in construction contracts.

The liability of parties and specifically the contractor is generally limited in construction contracts. According to the DCC, damages that are attributable to breach of contract are eligible for reimbursement. Sometimes, specific forms of damages such as indirect and consequential damages are excluded. These terms are not defined in the DCC. Indirect damages are generally contractually excluded.

The contractor’s retention and suspension rights can be excluded in the construction contract. Sometimes, retention rights are excluded to the extent that the employer has not paid the undisputed invoices.

Typically, two types of termination of construction contracts are agreed on between parties:

• termination for cause (ontbinding); and
• termination for convenience (opzegging).

The DCC (Burgerlijk Wetboek) and the UAV 2012, UAV-GC 2005 and DNR 2011 contain articles that regulate these two types of termination.

In termination for cause, the contractor would normally be paid the price of the work that has been performed.

In termination for convenience, the contractor would normally, in accordance with the regulatory rules of the DCC, be compensated for the entire work and construction, reduced by the costs and expenses which the contractor has saved as a result of the termination. In practice, the sum to be paid by the employer would generally be the price of the part that has been realised, increased by any demobilisation costs, cancellation costs, and loss of unabsorbed overhead and profit.

Regular dispute resolution is conducted by the district courts, the appeal courts and the Supreme Court in the event of appeals.

An important alternative means of dispute resolution is arbitration before the Netherlands Arbitration Institute (Nederlands Arbitrage Instituut) or the Board of Arbitration in Construction Disputes (Raad van Arbitrage in Bouwgeschillen). An agreement for arbitration is necessary. Furthermore, parties can agree on dispute resolution by means of binding or non-binding advice or mediation.