Is the main contractor always liable for what a subcontractor does?

Towards the principal, yes. The main contractor remains fully liable for performance regardless of who carries out the work. The main contractor may then have a separate claim against the subcontractor for any loss caused.

What is Dutch chain liability (ketenaansprakelijkheid) in practice?

Under BW 7:616a and the Tax Collection Act articles 34-35, a principal can be held jointly liable for unpaid wages and payroll taxes owed by subcontractors in the chain. Using a g-rekening (blocked wage tax account) or verified payroll certificates can limit that exposure.

Can a principal prevent a contractor from subcontracting?

Yes. A contract clause can prohibit subcontracting entirely, require prior written approval, or allow it only to approved suppliers. Breach of such a clause can give the principal the right to terminate.

What is "flow-down" and why does it matter?

Flow-down means passing key obligations from the main contract (safety standards, confidentiality, IP ownership) into each subcontract. Without it, the main contractor may be obliged to the principal on matters the subcontractor is not bound to observe, creating a gap in the chain of performance.

Does a subcontractor have a direct claim against the principal?

Generally not under Dutch contract law; the subcontractor's contract is with the main contractor only. Exceptions can arise in specific statutory regimes (e.g., construction subcontractors under BW 7:646) or if the principal has expressly assumed obligations towards the subcontractor.

Subcontractors

Third parties a contractor engages to perform part of the work it owes under the main contract.

Définition

Subcontractors are third parties a main contractor engages to carry out part of its contractual obligations, while remaining itself liable to the principal for the full performance. Contracts often regulate whether subcontracting is allowed, whether prior consent is needed, and require key terms to be flowed down. In labour and tax matters Dutch chain liability rules can make the principal co-liable for wages and payroll taxes unpaid down the chain.

Exemple

A general contractor hires an electrical subcontractor; the construction agreement requires the same safety and insurance terms to be flowed down to that subcontractor.

Pourquoi c'est un risque pour l'entreprise

A contractor who subcontracts without the principal's required consent, or without flowing down key obligations, risks being in breach of the main contract. Dutch chain liability rules mean the principal can be held liable for unpaid wages and payroll taxes owed by a subcontractor further down the chain, even if the main contractor appeared solvent. If a subcontractor underperforms, the main contractor bears the full risk to the principal while having limited remedies against a poorly documented subcontract.

Comment le gérer

Check the main contract for any consent requirement before engaging a subcontractor; seek written approval if required.
Flow down all material obligations from the main contract to each subcontract, including safety, insurance, confidentiality and quality standards.
Verify that each subcontractor pays wages and taxes on time to limit your chain liability exposure; consider using a g-rekening arrangement.
Keep a register of all active subcontractors linked to the relevant main contract so you have a clear picture of the supply chain at any moment.

Références juridiques

Sauf mention contraire, les références renvoient au droit néerlandais (Burgerlijk Wetboek, le Code civil néerlandais) ; les instruments de l'UE tels que le RGPD s'appliquent dans toute l'UE. Il s'agit d'informations générales, pas de conseils juridiques. D'autres juridictions traitent ces concepts différemment. Vérifiez le texte en vigueur et votre situation avec un avocat qualifié.

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