Is the main contractor liable for a subcontractor's mistakes?

Generally yes. Under BW 6:76 a debtor who uses auxiliary persons is liable for their conduct as for its own, unless the contract validly allocates otherwise.

Do GDPR terms need to pass to subcontractors?

Yes, where they process personal data. Article 28 requires equivalent data-protection obligations to flow down to every sub-processor.

Can the customer require approval of every individual subcontractor?

Yes if the clause so provides. In practice, parties often agree a pre-approved list or a category-based approval mechanism to balance control with operational flexibility.

Does the customer have a direct claim against a subcontractor?

Not automatically under Dutch law. A direct right of action exists only if expressly created by contract or if the subcontractor has committed an independent unlawful act (onrechtmatige daad) against the customer.

What should be flowed down to every subcontractor?

At minimum: confidentiality, intellectual property, data protection and safety obligations. For regulated industries, sector-specific compliance requirements should also flow down.

Subcontracting Clause

Governs whether a party may delegate performance to subcontractors and who remains responsible for the result.

What it is

A subcontracting clause sets whether and how a contractor may use third parties to perform its obligations, any approval requirement, and the rule that the main contractor stays fully liable for subcontractors' acts. It also addresses flow-down of key terms such as confidentiality and data protection.

Why it matters

Delegation can dilute quality, control and confidentiality. The clause keeps the main contractor accountable, ensures key obligations flow down to subcontractors, and prevents an unknown third party performing without the customer's knowledge.

How to apply it

State whether subcontracting needs prior written approval or notice.
Make the main contractor fully liable for its subcontractors' acts and omissions.
Flow down confidentiality, data-protection and IP terms to every subcontractor.
Reserve a right to object to or replace an unsuitable subcontractor.

Negotiation tips

• Customers should require approval rights and full flow-down of key obligations.
• Contractors should seek pre-approval of a named subcontractor list to avoid delays.

Common pitfalls

• Allowing subcontracting without flowing down confidentiality and GDPR terms.
• Letting the main contractor escape liability for subcontractor failures.

Legal references

Unless marked otherwise, references are to Dutch law (Burgerlijk Wetboek, the Dutch Civil Code); EU instruments such as the GDPR apply across the EU. This is general information, not legal advice. Other jurisdictions treat these concepts differently. Verify the current text and your situation with a qualified lawyer.

Frequently asked questions

Common questions about this clause.