THE BOTTOM LINE
- Clarity is King: Ambiguous or poorly drafted clauses in recruitment agreements, especially concerning fees for later hires (so-called ‘backdoor hires’), are likely to be unenforceable in Dutch courts.
- Burden of Proof is on the Drafter: The party that provides the general terms and conditions bears the risk if those terms are unclear. In this case, the recruitment agency’s confusing fee calculation clause worked against them.
- Non-Exclusive Agreements Limit Obligations: A non-exclusive recruitment agreement inherently allows a company to source candidates from multiple channels, a fact that weakens claims of contractual breach when a candidate is hired through other means.
THE DETAILS
A recent ruling from the District Court of Zeeland-West-Brabant provides a sharp reminder for companies to scrutinize their agreements with recruitment agencies. The case involved Arts Safety BV, a recruitment firm, and its client, Enrichment Technology Nederland (ETC). In early 2022, Arts, under a non-exclusive agreement, introduced a potential candidate to ETC. The candidate was unavailable at the time. Sixteen months later, ETC hired the same individual for the role, but through the services of a different recruitment agency. Arts subsequently sued ETC for a success fee of €18,480, arguing this constituted a breach of contract.
Arts first argued that ETC had breached the agreement by bypassing them to hire a candidate they had originally introduced. The court swiftly dismissed this argument. It noted that the agreement was explicitly non-exclusive, granting ETC the right to seek candidates independently or through other firms. The court reasoned that this freedom to contract elsewhere fundamentally contradicts the idea that hiring the candidate would be a breach. In fact, the court pointed out that the agency’s own general terms and conditions included a clause specifically addressing this scenario, which undermined the claim that such an action was forbidden.
The recruitment agency’s second argument relied on that very clause (Article 7.8) in its general terms and conditions, which was designed to impose a penalty if the client hired an Arts-introduced candidate within 12 months. However, the court found the clause to be “unclear and incomprehensible.” It contained confusing references to other articles and, critically, outlined a fee calculation method based on remaining project hours—a model suited for secondment or temp work, not a one-off recruitment placement. Because Arts drafted the ambiguous terms, the court ruled that any lack of clarity must be interpreted in favor of its client, ETC. The court concluded that the agency failed to create a clear, enforceable obligation and therefore could not claim a fee.
SOURCE
Source: Rechtbank Zeeland-West-Brabant
