Amendment clauses in general terms: when is a unilateral change unfair?

A company may only amend its general terms and conditions during a running contract if the contract contains a valid amendment clause, and in consumer contracts that clause must name a valid reason, be transparent and, for significant changes, give the customer a real right to terminate. In business-to-business contracts there is more freedom, but an amendment clause can still be set aside if it is unreasonably onerous.

The main rule is Article 6:233(a) of the Dutch Civil Code (BW), read together with the black and grey lists in Articles 6:236 and 6:237 BW and the EU Unfair Terms Directive (93/13/EEC). Below we explain how courts apply these rules, how business and consumer contracts differ, and what to check on each side.

What is an amendment clause?

An amendment clause (wijzigingsbeding) is a provision in the general terms and conditions that allows one party, usually the supplier, to change the contract while it runs. Without such a clause, a change to a running contract requires the other party’s agreement.

Companies use amendment clauses to pass on changes in costs, VAT rates or legislation without agreeing every adjustment separately with each customer.

Example of a clause as it is often seen: “The supplier may amend these general terms and conditions and the applicable rates at any time. Amendments take effect thirty days after notification.” As we explain below, a clause worded this broadly is vulnerable, certainly towards consumers.

Such clauses are common in:

• software licences and SaaS agreements;
• tenancy agreements;
• insurance policies;
• energy contracts;
• subscriptions, such as gym and telecom contracts.

Which types of amendment clause are there?

In practice there are two types. The difference matters for how strictly a court will look at the clause.

• The open amendment clause: the supplier may change the terms “at its own discretion” or without a specific reason. This type receives the closest scrutiny.
• The limited amendment clause: the power to amend is linked to objective circumstances, for example a price change in line with a named index, or a change needed to comply with new legislation.

Which rules apply to amendment clauses?

The main rule is Article 6:233(a) of the Dutch Civil Code (BW): a clause in general terms and conditions is voidable if it is unreasonably onerous for the other party. For consumer contracts, the EU Unfair Terms Directive and the Dutch black and grey lists add specific guidance.

Whether a clause is unreasonably onerous depends on the nature and content of the contract, the way the terms were drawn up, the interests of both parties and the other circumstances of the case. The other party can invoke this ground for annulment itself; in consumer cases the court must also assess it of its own motion.

The Dutch lists in Articles 6:236 BW (black list) and 6:237 BW (grey list) apply to contracts with consumers: natural persons not acting in the course of a business or profession. Two items are directly relevant to amendments.

• Black list, Article 6:236(i) BW: a clause allowing the supplier to raise the agreed price within three months after the contract was concluded is deemed unreasonably onerous, unless the consumer may then dissolve the contract.
• Grey list, Article 6:237(c) BW: a clause allowing the supplier to deliver a performance that differs substantially from what was promised is presumed unreasonably onerous, unless the consumer may then dissolve the contract. The supplier can rebut that presumption.

The Dutch lists do not contain a separate item for a general power to amend the terms. For that, the EU Unfair Terms Directive (93/13/EEC) is decisive. Its annex, an indicative list of terms that may be unfair, mentions a clause “enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract”. According to the same annex, a supplier may reserve the right to change the conditions of a contract of indefinite duration, provided it must inform the consumer with reasonable notice and the consumer is free to dissolve the contract. Price indexation clauses are allowed where the method by which prices vary is explicitly described. Dutch courts interpret Article 6:233(a) BW in line with this directive.

When is an amendment clause unfair?

An amendment clause in a consumer contract is at risk if it gives no valid, specified reason, is not transparent about when and how things may change, or leaves the consumer without a real way out. Courts look at these three elements together.

• A valid reason: the power to amend must not be arbitrary. Objective and verifiable grounds, such as new legislation, a change in the VAT rate or a named price index, are much stronger than vague terms like “commercial reasons” or “market conditions”.
• Transparency: the consumer must be able to foresee, on the basis of clear and intelligible criteria, when and how the terms or the price may change. In RWE Vertrieb (Court of Justice of the EU, 21 March 2013, C-92/11) the Court held that the reason for and method of a price variation must be set out in the contract in a transparent way.
• A real right to terminate: where the change is to the consumer’s detriment, the consumer must be able to end the contract. In the same judgment the Court held that this right must be genuine in practice, not merely formal.

The more the clause concerns core obligations, such as the price or the main service, the stricter the test. A clause that allows the supplier to “change anything” is inherently suspect.

Do sector rules add requirements?

Yes, for some sectors EU law sets specific rules for changes to running contracts. These apply on top of the general test.

• Telecom: under Article 105(4) of the European Electronic Communications Code (Directive (EU) 2018/1972), providers must notify end-users of changes to the contractual conditions at least one month in advance and inform them of their right to terminate without further costs, unless the changes are exclusively to the user’s benefit, purely administrative with no negative effect, or required by law.
• Digital content and digital services: under Article 19 of Directive (EU) 2019/770 a trader may modify digital content or a digital service beyond what is needed to keep it in conformity only if the contract allows it and gives a valid reason, the change costs the consumer nothing extra and the consumer is clearly informed. If the change has more than a minor negative impact, the consumer may terminate at no cost, unless the trader lets the consumer keep the unmodified version.

For SaaS, apps, streaming and telecom services these rules often determine in practice what an amendment clause may say.

What is the difference between business and consumer contracts?

In business contracts there is more freedom of contract and the black and grey lists do not apply directly. Small businesses can nevertheless sometimes benefit from them through the so-called reflex effect (reflexwerking).

Between businesses, the open standard of Article 6:233(a) BW still applies, but a court will accept more. Large businesses cannot invoke the grounds for annulment at all: under Article 6:235 BW this applies to legal entities that have published their annual accounts, and to parties with 50 or more employees at the time the contract is concluded.

In a judgment of 8 September 2023 (ECLI:NL:HR:2023:1197) the Dutch Supreme Court (Hoge Raad) confirmed that a non-consumer whose position resembles that of a consumer can rely on the black and grey lists indirectly. The fact that a clause appears on one of the lists may then be taken into account when assessing whether it is unreasonably onerous. This can apply to small businesses, or to a business that enters into a contract outside its core activities.

What happens if your amendment clause is unfair?

An unreasonably onerous clause can be annulled, and in consumer contracts an unfair term is not binding on the consumer. Changes you made on the basis of that clause then lose their basis.

Annulment works back to the moment the contract was concluded. In practice this means that the old terms continue to apply, that price increases based on the clause can be reclaimed, and that you cannot rely on terms introduced through the clause. Under Article 6(1) of the Unfair Terms Directive the rest of the contract stays in force if it can continue without the unfair term.

An example to illustrate: a company with maintenance subscriptions raises its monthly fee on the basis of a clause that only refers to “market conditions” and gives no right to terminate. If a court finds the clause unfair, the company must in principle refund the increases to its consumer customers and rewrite its terms. The financial and reputational impact can be considerable.

Do existing customers have to accept your new terms?

Not automatically. New general terms apply to new contracts; for running contracts you need either the customer’s agreement or a valid amendment clause.

Publishing new terms on your website does not bind existing customers by itself. If you rely on an amendment clause, inform your customers individually, in good time and on a durable medium such as e-mail, and tell them what changes, why, from when and what they can do if they do not agree.

What should you check as a supplier?

Name the reasons for change, describe the procedure and give the customer a way out. Use this list to test your existing clause against Article 6:233(a) BW and the Unfair Terms Directive.

• Does the clause name objective reasons, such as a change in legislation, in the VAT rate or in a named index like the CBS consumer price index, instead of “at our discretion”?
• Do you inform each consumer personally, on a durable medium such as e-mail, in good time before the change takes effect (at least one month in telecom)?
• Can the customer end the contract at no cost by the date a detrimental change takes effect?
• Does the clause leave core obligations alone, such as the main service or the price outside an agreed index?
• Do you use separate terms for consumers and business customers, given that the black and grey lists only protect consumers directly?
• Do you keep a record of why each change was made and how customers were informed?

What should you check as a customer?

As a customer you can challenge a change that is not covered by a valid clause. Check these points before you accept new terms or a price increase.

• Did the contract contain an amendment clause when you signed it, and were the general terms made available to you at that time (Article 6:233(b) BW)?
• Does the clause name a specific reason, and does the change actually fit that reason?
• Was the price raised within three months of concluding a consumer contract without a right to dissolve (Article 6:236(i) BW)?
• Were you informed personally and in good time, and were you offered a right to terminate?
• As a business: did you contract outside your core activities, so that the black and grey lists may apply indirectly (ECLI:NL:HR:2023:1197)?

What can we do for you with amendment clauses?

Our corporate law team works for suppliers and customers on general terms and amendment clauses:

• We review your general terms and mark each clause that is vulnerable under Articles 6:233, 6:236 and 6:237 BW.
• We draft a separate amendment clause for consumer and business contracts, with reasons, notification procedure and right to terminate.
• We draft the notice to existing customers that announces a change to their running contracts.
• We assess whether a price increase or new term imposed on you can be annulled, and we draft the written annulment.
• We calculate and claim back price increases paid on the basis of an unfair clause.

Summary

• An amendment clause allows a supplier to change a running contract, but only within limits; without a valid clause you need the customer’s agreement.
• For consumers, the clause must name a valid reason, be transparent about when and how things change, and give a real right to terminate for detrimental changes.
• A price increase within three months of concluding a consumer contract is on the black list unless the consumer may then dissolve the contract (Article 6:236(i) BW).
• Between businesses there is more freedom, but small businesses can rely indirectly on the black and grey lists (Supreme Court, 8 September 2023).
• An unfair clause can be annulled, with the result that changes based on it lose their basis and increases can be reclaimed.

Frequently asked questions