オランダにおけるデューデリジェンス：買い手が調査すべき事項

A due diligence investigation is the structured examination a buyer, investor or lender carries out before a transaction, to find out what a business is really worth and which risks come with it. Dutch law prescribes no fixed programme, but it attaches consequences to the result: what the seller should have disclosed can make the agreement voidable for error under Article 6:228 of the Dutch Civil Code (BW), while what the buyer could have found and did not investigate usually stays with the buyer.

Due diligence therefore decides not only the price, but also which warranties you can still rely on after completion. Below we explain what the investigation covers, how Dutch law divides the risk, and how findings become contract protection.

デューデリジェンス調査とは何ですか？

It is a fact-finding exercise, not an audit. An auditor confirms that historical figures comply with accounting standards; a due diligence team asks what everything the company has signed, borrowed, promised and litigated will cost the buyer after completion.

A clean audit opinion says nothing about a distribution agreement that ends on a change of control, an underfunded pension arrangement or a permit that expires six months after closing. The investigation normally starts after a letter of intent and a confidentiality agreement, at the buyer’s cost; sellers increasingly commission a vendor due diligence first to control the process.

Which workstreams does it cover?

Most transactions use parallel workstreams, each with its own specialists. The table shows the standard division and the findings that typically lead to a price adjustment or specific indemnity.

Not every deal needs every workstream at full depth. Record the scope decision in writing: areas you deliberately leave out are areas where a warranty or indemnity must do the work instead.

How does Dutch law divide the risk between seller and buyer?

The seller has a duty to disclose (mededelingsplicht) and the buyer has a duty to investigate (onderzoeksplicht). Under Dutch case law, where the two collide, the seller’s duty to disclose generally prevails, so a seller who knew of a defect usually cannot argue that the buyer should have found it.

That priority weakens for a professional buyer with lawyers, accountants, a data room and a question-and-answer procedure. If the information was in the data room and the buyer did not read it, the buyer will rarely be heard afterwards.

What remedies does the buyer have?

• Error (dwaling), Article 6:228 BW: an agreement concluded under a mistaken belief is voidable if the mistake was caused by the other party’s information, if the other party should have informed you, or if both parties made the same mistake. Under Article 6:230(2) BW, the court may instead amend the agreement, which usually means a price reduction.
• Fraud (bedrog), Article 3:44 BW: if the seller deliberately gave false information or concealed a fact it had to disclose, the agreement is voidable and damages may also be claimed.
• Non-conformity, Article 7:17 BW: under Article 7:47 BW, the sales rules also apply to the sale of shares, insofar as that fits the nature of the right. Because the object sold is the shares, the condition of the business must be made a contractual quality, which is what warranties are for.

どの締め切りが適用されますか？

Under Article 7:23(1) BW, a buyer must notify the seller of non-conformity within a reasonable time after discovering it, or after it should reasonably have been discovered; under Article 7:23(2) BW, the claim then becomes time-barred two years after that notice. Buyers who spend a year building a file before writing their first letter regularly lose the claim on this point alone.

Under Article 3:52(1)(c) BW, a claim to annul for error or fraud becomes time-barred three years after the error or fraud was discovered. Damages claims generally become time-barred five years after you became aware of the loss and the liable party (Article 3:310 BW). Contractual warranty periods in the purchase agreement are usually much shorter.

Share deal or asset deal: how does the structure change the investigation?

In a share deal, the buyer acquires a company with its entire history: every contract, permit, tax position and dormant claim stays in place, so the investigation must be broad. Under Article 2:196 BW, the transfer of shares in a Dutch private limited company (besloten vennootschap, BV) requires a notarial deed executed before a civil-law notary in the Netherlands, and the notary will check the chain of title.

In an asset deal, the buyer picks what it wants, and liabilities not expressly assumed stay with the seller. But each asset must be transferred separately: under Article 6:159 BW, a transfer of contract requires a deed and the counterparty’s cooperation, which gives suppliers and landlords a de facto veto. Permits often have to be reapplied for or transferred with the authority’s consent.

Employees are the exception. If the asset deal is a transfer of an undertaking under Articles 7:662 and following BW, the employees transfer to the buyer automatically on their existing terms under Article 7:663 BW, and the seller remains jointly liable for one year for obligations that arose before the transfer. See our article on 事業譲渡の拒否.

Which legal findings decide the price?

Legal findings are often binary: either the buyer will own the intellectual property after completion or it will not, either the lease survives the deal or it does not. Four areas produce most serious findings in Dutch transactions.

企業記録および所有権

Read the articles of association, not just the Chamber of Commerce (KVK) extract, and check the shareholders’ register against the notarial deeds of issue and transfer. Dutch articles often contain transfer restrictions or an offer obligation, and a shareholders’ agreement may add consent rights. Minority shareholders have a stronger position than many foreign buyers expect; see our guide to オランダの少数株主.

契約および経営権の変更

Review key contracts for what the company has committed to, for how long, and what happens on a change of ownership. A single change-of-control clause in a key customer, bank, lease or licence agreement can remove much of the value. The usual answer is a condition precedent: no completion until the counterparty confirms in writing that it will not use the right.

Employment, works council and pensions

Check whether a collective labour agreement applies and is applied correctly, whether pensions are properly funded, whether fixed-term chains have become permanent contracts, and whether key employees’ non-compete clauses meet the written-form requirements. Under Article 25(1)(a) of the Works Councils Act (Wet op de ondernemingsraden), the works council must be asked for advice on a proposed transfer of control while that advice can still influence the decision. The SER Merger Code also requires the trade unions to be informed in time.

Permits, property, clearances and data

For asset-heavy businesses, soil condition, zoning and environmental permits belong in the report, because remediation obligations attach to the site and the operator. Under Article 29 of the Competition Act (Mededingingswet), a merger must be notified to the Netherlands Authority for Consumers and Markets (ACM) if the parties’ combined turnover exceeds €150 million and at least two of them each have €30 million in the Netherlands; under Article 34, it may not be implemented until four weeks after notification. Check the ACM website for any adjusted thresholds.

The Investments, Mergers and Acquisitions Security Screening Act (Wet veiligheidstoets investeringen, fusies en overnames), in force since 1 June 2023, requires acquisitions of control over vital providers and companies with sensitive technology to be notified to the Investment Screening Office (Bureau Toetsing Investeringen) before implementation. The investigation itself also processes personal data under the GDPR, so anonymise personnel data and use a clean team for competitively sensitive information.

How is Wwft customer due diligence different?

Transactional due diligence is voluntary; customer due diligence under the Money Laundering and Terrorist Financing (Prevention) Act (Wwft) is a legal duty for banks, accountants, tax advisers, notaries, trust offices and, in certain cases, lawyers. Under Article 3 Wwft, they must identify and verify the client and its ultimate beneficial owner, establish the purpose of the relationship and monitor it continuously.

Under Article 16 Wwft, an unusual transaction must be reported to the Financial Intelligence Unit Netherlands (FIU-Nederland) without delay. Supervision lies with De Nederlandsche Bank, the AFM, the Belastingdienst’s Wwft supervision office and, for lawyers, the local Dean of the Bar. Public access to the UBO register has been closed after EU case law, so institutions must document their own verification. See our オランダにおけるマネーロンダリング規制に関するガイド.

持続可能性に関するデューデリジェンスについてはどうでしょうか？

ESG findings have become a valuation item. The Corporate Sustainability Reporting Directive (CSRD) requires large companies to publish sustainability data, which a buyer can test against management’s claims.

The Corporate Sustainability Due Diligence Directive (CSDDD) will make chain due diligence mandatory for the largest companies, but it was substantially narrowed and postponed by an EU amendment in 2026 and has not yet been implemented in Dutch law. A target that will fall within scope, or that supplies a customer that does, should be able to show where its inputs come from; if it cannot, the cost of building that evidence belongs in the business plan.

How does the process run and how long does it take?

A well-run process moves from scope to report in a fixed sequence. A focused review of a small Dutch company typically takes a few weeks; a cross-border deal with several subsidiaries, regulatory clearances and real estate takes several months.

1. 対象領域: decide which risks would change the decision before requesting documents.
2. Team and letter of intent: sign the confidentiality agreement and a letter of intent setting out price mechanism, exclusivity and what binds the parties. Under Dutch case law, breaking off advanced negotiations can lead to liability, so the withdrawal wording matters.
3. Data room and Q&A: every request, answer and missing document is logged, as that log shows what the buyer was told and when.
4. 分析: legal and financial teams link findings to figures in regular joint sessions.
5. 外部リンク：レポート: a short summary of decisive findings, each with exposure, likelihood and proposed remedy, followed by the detailed analysis.

How do you turn findings into contract protection?

A finding only has value once it is converted into something enforceable in the share purchase agreement. The choice of instrument depends on whether the risk is unknown, known, or known and quantified.

• Warranties (garanties) cover the unknown: if a problem emerges that was not fairly disclosed, the seller pays. Insist that only specifically disclosed items qualify a warranty, not the entire data room.
• An indemnity (vrijwaring) covers a known exposure, such as a pending tax dispute or a soil clean-up, euro for euro and usually outside the caps and thresholds.
• A price reduction, escrow, deferred payment or earn-out deals with known and quantifiable risks.
• Warranty and indemnity insurance transfers warranty risk to an insurer, which will want to see the due diligence reports first.

Diarise the contractual notification periods, de minimis thresholds, baskets and caps on the day of completion. A buyer who discovers a breach in month 13 of a 12-month warranty period has, in practice, no claim. Archive the data room, Q&A log and disclosure letter in a form you can still open years later.

購入者として確認すべき点は何ですか？

• Start the investigation before the price is fixed in the letter of intent.
• Read the key contracts themselves, not the seller’s summaries, and look for change-of-control clauses.
• Plan works council advice, union notification, ACM clearance and investment screening from day one.
• Make sure every red flag leads to a price adjustment, warranty, indemnity or condition precedent.
• Notify non-conformity promptly: the two-year period of Article 7:23(2) BW runs from your notice.

販売者として確認すべきことは何ですか？

• Consider a vendor due diligence to identify problems before the buyer does.
• Disclose known defects: your duty to disclose generally outweighs the buyer’s duty to investigate.
• Make sure the shareholders’ register and notarial deeds form an unbroken chain of title.
• Disclose specifically in the disclosure letter, so warranties are properly qualified.
• Negotiate caps, thresholds and short warranty periods in the purchase agreement.

弊社は、デューデリジェンスを通じてお客様のために何ができるでしょうか？

現場の声を力強いメッセージへ。 顧問弁護士 advise buyers, sellers and investors on Dutch transactions.

• We scope the legal due diligence and draft the request list.
• We review the data room and report findings with exposure and proposed remedies.
• We translate findings into warranties, indemnities and conditions precedent in the purchase agreement.
• We plan the works council, ACM and investment-screening steps in the timetable.
• We prepare a vendor due diligence and disclosure letter for sellers.

For technology deals, see テクノロジー分野における合併・買収; more topics are collected in our オランダの企業法ガイド.

製品概要

• Due diligence decides the price and which warranties you can rely on after completion.
• The seller’s duty to disclose generally prevails, but a professional buyer must use the data room it was given.
• Share deals require a broad investigation and a notarial deed (Article 2:196 BW); in asset deals, employees may transfer automatically (Article 7:663 BW).
• Merger control, investment screening and works council advice must be planned from the start.
• Notify defects promptly: the claim lapses two years after notice under Article 7:23(2) BW.

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