When you hear the term overgang van een onderneming, or “transfer of an undertaking,” what does it actually mean in practice? It’s a legal concept that kicks in when a business, or even just a distinct part of it, changes hands but essentially keeps its identity. Think of it as a protective shield for employees.
In short, if a new owner takes over, the employment contracts of the staff—along with all their existing rights and obligations—automatically transfer to the new company. This crucial piece of Dutch law provides stability for employees during big business changes like a sale, a merger, or even when activities are outsourced.
What an Overgang van een Onderneming Truly Means
Let’s use an analogy. Imagine your favourite local coffee shop is sold. The sign above the door might get a new name, but the skilled baristas, the secret blend of coffee beans, and the familiar espresso machine all stay. That’s the heart of a transfer of an undertaking. It isn’t just a simple sale of assets; it’s about an economic entity carrying on under new leadership.
This idea is the bedrock of powerful employee protections. The core principle is straightforward: the new employer steps directly into the shoes of the old one. They inherit the entire team, and the existing employment terms and conditions come along for the ride, completely intact.
The Core Principle: Identity Preservation
So, what’s the deciding factor? It all comes down to whether the business keeps its identity after the transfer. A court won’t just look at the legal paperwork, like a sales contract or merger agreement. It digs deeper to understand the practical reality of what has changed—and what hasn’t.
For a transfer to be legally recognised as such, the operation has to continue in a way that’s still recognisable. This isn’t limited to one type of transaction and can include situations like:
- Company Sales: The most common scenario where one business is bought by another.
- Mergers: Two companies fuse into a single new entity, bringing their respective teams together.
- Outsourcing: A company hives off a department, like its IT support or cleaning crew, to a specialised external firm. If that team and their work move over to the new provider, it’s often a business transfer.
The law is specifically designed to stop employees from losing their jobs or having their rights diminished simply because the company gets a new owner. The transfer itself can’t be used as the sole reason for a dismissal or for a one-sided change to an employment contract.
Key Conditions That Define a Legal Transfer
Not every business deal makes the cut. The transaction has to involve an “economic entity”—an organised group of people and assets working together towards a specific business goal. To get a deeper dive into the specifics, you can explore the nuances of a transfer of undertaking in our related article.
To see if a particular situation qualifies, we need to check if it meets a few key conditions. The following table breaks down what the courts look for.
Key Conditions for a Business Transfer
| Condition | Explanation |
|---|---|
| Transfer of an Economic Entity | The core business operation, including its assets and people, must move across. Selling one company car isn’t a transfer, but transferring the entire delivery department—drivers and vans included—almost certainly is. |
| Preservation of Identity | The business must continue in a similar way post-transfer. The new owner can’t just buy the assets, shut down the operation, and start something totally different. |
| Change of Employer | A new legal entity must take over responsibility for running the business and, crucially, for employing the staff. |
Grasping these fundamental pillars is the first step to confidently navigating the world of an overgang van een onderneming. It creates a clear framework for understanding your rights and duties, whether you’re the employer planning the change, an employee caught in the middle, or a business owner thinking about your next move.
How to Spot a Legal Business Transfer
Figuring out if a deal qualifies as a legal business transfer—an overgang van een onderneming—can be tricky. It’s not about what the contract is called, whether it’s a “sale,” a “merger,” or an “asset deal.” What really matters is whether the core business keeps its identity after the transaction.
To get to the bottom of this, Dutch courts rely on a set of guiding principles known as the “Spijkers criteria.” These aren’t from a Dutch lawbook but from a landmark European Court of Justice case that set the standard across the EU. Think of it less like a rigid checklist and more like a holistic review. A judge will weigh all the different factors to see if the business is, for all intents and purposes, carrying on as before, just with a new owner at the helm.
Getting this right is absolutely critical. If it is a legal transfer, employee rights are automatically protected by law. If it’s not, those protections vanish. Understanding these criteria helps everyone involved—from the boardroom to the shop floor—anticipate how a court would view the transaction.
The Spijkers Criteria: A Practical Checklist
The Spijkers criteria give us a framework to look past the paperwork and evaluate the substance of the deal. It’s a set of questions designed to reveal the reality of the situation. No single factor decides the outcome; their importance shifts depending on the kind of business in question.
Here are the main things a court will look at:
- The Type of Business: Is it a people-powered business, like a consultancy, or is it all about the equipment, like a factory? This starting point influences how much weight is given to the other factors.
- Transfer of Tangible Assets: Are physical assets—buildings, machinery, stock, company cars—part of the deal? The more physical stuff that moves over, the more it looks like a transfer.
- Value of Intangible Assets: What about the non-physical assets? Things like brand names, patents, intellectual property, and crucial customer databases are often the real heart of a business.
- Taking on the Staff: Did the new owner hire a significant portion of the original workforce? This is often a massive clue, especially if key, skilled employees are taken on.
- Transfer of Customers: Are existing customer relationships and contracts being handed over to the new owner? If customers experience a seamless transition, it strongly suggests the business identity is preserved.
- Similarity of Activities: Is the business doing the same things it was doing before the deal? If a bakery is sold and continues to bake bread, that’s a clear signal.
- Any Interruption in Business: If the business paused, how long for? A brief shutdown for a quick rebrand is very different from a business that has been closed for months.
The core principle is simple: if it walks like a duck and talks like a duck, it’s probably a duck. The law focuses on the operational reality, not the legal label slapped on the agreement.
How the Criteria Work in the Real World
The weight given to each criterion is flexible because a one-size-fits-all approach just wouldn’t work. The identity of a tech start-up is defined very differently from that of a heavy manufacturing plant.
Let’s look at a couple of examples to see this in action.
Example 1: A Manufacturing Plant
Imagine a factory making specialised car parts is sold. The new owner buys the land, the building, all the production machinery, the patents for the parts, and the existing inventory. In a capital-intensive business like this, the transfer of tangible assets is the most important factor. Even if only a handful of the original staff move across, the fact that the entire production line is now in new hands makes it almost certain to be an overgang van een onderneming.
Example 2: A Software Development Firm
Now, picture a software company being bought out. It might own very little in the way of physical assets—maybe just some laptops and rented office space. Here, the soul of the business lies in its code, its client list, and its talented developers. If the buyer gets the source code, the customer contracts, and, crucially, convinces the core development team to stay on, a legal transfer has almost definitely taken place. In this case, the people and the intellectual property are far more significant than the office furniture.
As you can see, identifying a business transfer is a nuanced job. It’s about looking at the entire picture to decide if the “economic entity”—that organised mix of people, assets, and operations—has fundamentally kept its identity through the change of ownership. For anyone involved in a business sale or merger, understanding this practical framework is the first step to navigating the legal landscape and meeting your obligations.
Protecting Employee Rights During a Business Transfer
When a business changes hands, it’s easy for the conversation to get dominated by spreadsheets, assets, and strategic plans. But what about the people? At the heart of any overgang van een onderneming are the employees who make it tick. Thankfully, Dutch law is very clear on this: their rights and livelihoods are not up for grabs during a corporate deal.
The central pillar of this protection is the principle of automatic transfer. This isn’t a negotiating point or something the parties can opt out of; it’s a legal requirement. When a business is transferred, every employment contract for the staff involved automatically moves from the old employer (the transferor) to the new one (the transferee).
In essence, the new employer has to step directly into the old employer’s shoes. They inherit the entire team, complete with all existing employment relationships fully intact. It’s a seamless transition designed to give people stability during what can otherwise be a very uncertain time.
The Automatic Transfer of Employment Contracts
Think of your employment contract like a backpack you take to work. It’s filled with everything you’ve earned: your salary, your seniority, your holiday allowance, your specific role. During an overgang van een onderneming, the law makes sure you carry that very same backpack over to your new employer. They can’t just decide to empty it or swap it for a lighter version because of the sale.
This automatic handover covers practically all the rights and duties tied to your contract. The key elements that are legally preserved include:
- Salary and Benefits: Your pay, any agreed bonuses, a company car—all these financial perks must continue as they were.
- Seniority and Length of Service: Your start date remains the same. This is vital for things like work anniversaries, notice periods, and any potential transition payments down the line.
- Job Function and Responsibilities: You keep the same role and the duties that come with it. The new boss can’t demote you or radically change your job just because of the transfer.
- Working Hours and Location: Your agreed-upon hours and primary workplace are also protected under your original contract.
This comprehensive safety net is there to ensure that for an employee, a change in ownership feels more like a new name on their payslip, not a complete disruption of their professional life.
The Anti-Dismissal Shield
Job security is, understandably, a huge concern for employees during any merger or acquisition. To tackle this head-on, Dutch law provides a powerful anti-dismissal shield. It explicitly forbids an employer—either the seller or the buyer—from firing an employee because of the business transfer.
The transfer of a business, in and of itself, cannot be the legal reason for a termination. This rule stops companies from using a transfer as a convenient excuse to “clean house” or get rid of staff they would otherwise be obligated to protect.
Now, this shield is strong, but it’s not unbreakable. It doesn’t mean an employee has a job for life after a transfer. If, sometime after the deal is done, the new owner has genuine economic, technical, or organisational (ETO) reasons for a reorganisation, dismissals might be on the table. However, any such move must strictly follow the normal, rigorous procedures for redundancy in the Netherlands and can’t be a backdoor attempt to sidestep the transfer rules.
The Role of Collective Labour Agreements (CAO)
What if the old company was part of a collective labour agreement, or CAO? The new employer is typically bound to honour the terms of that CAO for the transferred employees. This duty lasts until the CAO either expires or is replaced by a new collective agreement at the acquiring company.
This can create a tricky situation where a business ends up with two different sets of employment conditions under one roof: one for its original staff and another for the newly acquired team. While it’s possible to harmonise these conditions, it has to be done carefully and legally—usually through negotiation, not by forcing unilateral changes. The rules here get complicated fast, which is a key reason why to choose an employment lawyer in the Netherlands becomes so important for getting it right.
What If an Employee Does Not Want to Transfer?
While the process is automatic, no one can be forced to work for a new employer against their will. An employee absolutely has the right to object to the transfer and say, “No, thank you.”
Be warned, though: this decision carries heavy consequences. By objecting, an employee is effectively choosing to end their own employment. The law treats this as a voluntary resignation, meaning their contract simply terminates on the date of the transfer. More importantly, this usually means they forfeit any right to a transition payment (transitievergoeding) or unemployment benefits, since they made the choice to leave. It’s a path that should be considered with extreme caution.
A Step-by-Step Guide to a Compliant Transfer Process
Pulling off a successful overgang van een onderneming (transfer of undertaking) is about more than just agreeing on a price. It demands a carefully managed, compliant process every step of the way. Transparency and clear communication aren’t just nice-to-haves; they are legal duties that foster trust and pave the way for a smooth transition for everyone.
Following a clear roadmap is your best defence against legal challenges and operational disruption. For both the seller and the buyer, this means getting out ahead and engaging with key stakeholders, especially the Works Council (Ondernemingsraad or OR) and any relevant trade unions. This structured approach transforms the transfer from a point of high anxiety into a predictable, well-managed event.
Phase 1: Initial Planning and Notification
The real work starts long before anyone signs on the dotted line. The moment a business transfer becomes a serious possibility, the clock starts on your obligation to inform stakeholders. This first phase is all about laying a transparent foundation.
The seller (transferor) and buyer (transferee) need to build a solid case for the transfer. This involves clearly articulating the reasons for the deal, pinning down an expected date, and outlining the immediate consequences for employees. This information is absolutely vital for the Works Council, which has significant advisory rights.
Key actions at this stage include:
- Drafting an initial proposal that explains the logic and scope of the transfer.
- Identifying every affected employee and documenting their specific terms of employment.
- Preparing the formal request for advice (adviesaanvraag) to submit to the Works Council.
Phase 2: Consultation with the Works Council
In the Netherlands, if your company has 50 or more employees, you can’t ignore the Works Council. The employer must formally ask for the council’s advice on the proposed transfer. This isn’t a box-ticking exercise; the request has to be made at a point when their advice can still genuinely shape the final decision.
The Works Council’s advice isn’t legally binding, but it carries immense weight. Choosing to ignore a negative opinion without a very compelling reason can land you in court and cause serious delays. A judge can even halt the transfer if they find the consultation process was flawed.
This consultation requires sharing detailed information about how the transfer will affect jobs, working conditions, and the company’s future strategy. The Works Council will then issue its formal opinion. If the company decides to go against the council’s advice, it must wait a full month before moving forward, giving the council time to appeal the decision.
Phase 3: Informing Employees and Trade Unions
At the same time you’re consulting the Works Council, you need to inform all your employees directly. This communication must be timely, clear, and thorough, explaining exactly what the overgang van een onderneming means for their individual roles.
Likewise, if a collective labour agreement (CAO) covers your company, the relevant trade unions must also be brought into the loop. They are crucial for protecting collective rights and making sure the terms of the CAO are honoured after the transfer. To get a better handle on the broader legal framework, you might want to look at our detailed guide on employment law in the Netherlands.
The current economic climate, with Dutch companies posting strong profits, makes for a dynamic M&A environment. For example, in Q1 2025, non-financial companies saw gross profits climb to €90.1 billion, which helped boost investments by €0.9 billion. This healthy cash flow can make transfers easier, but it also highlights just how critical precise legal and financial management is.
Phase 4: Finalising and Executing the Transfer
Once the consultations are finished and all advice has been properly considered, you can move to the final stage. This is where you finalise the transfer agreement, ensuring every legal requirement protecting employee rights is correctly built in. While our guide focuses on the Dutch process, those looking for a broader perspective on the final steps may find this supplemental resource on how to transfer ownership of a business after closing useful.
After the transfer date, the new employer officially takes charge, inheriting all employment contracts as they stand. Continued, clear communication is essential here to integrate the team, address any leftover concerns, and ensure the business doesn’t lose a beat.
Right, let’s talk money. Beyond the legal paperwork and operational checklists, a business transfer in the Netherlands is, at its core, a major financial event. How you structure the deal will have a huge and immediate impact on the tax bill for both the buyer and the seller. Getting this right from the start isn’t just a “nice-to-have”—it’s fundamental to protecting the deal’s value.
Think of it this way: a business transfer isn’t just passing the keys to a new owner. It’s a taxable event that brings things like corporate income tax, VAT, and real estate transfer tax into the spotlight. If these aren’t planned for, you can be sure you’ll find some nasty surprises in the form of unexpected tax liabilities, which is a surefire way to sour a good deal. That’s why smart tax planning needs to be on the agenda from the very first handshake.
The biggest fork in the road, and the decision that shapes everything that follows, is whether you’re doing an asset deal or a share deal. Each route leads to a completely different tax outcome. It often creates a financial seesaw where a tax win for one side means a disadvantage for the other.
Asset Deals vs Share Deals
In an asset deal, the buyer is essentially going shopping. They pick and choose the specific assets (like machinery, inventory, or client lists) and liabilities they want to take on from the seller’s company. For the seller, any profit they make on selling those assets is usually hit with corporate income tax. The buyer, however, gets a nice upside: they can start depreciating the assets they just bought at their new value, which means lower tax bills down the line.
A share deal is a different beast entirely. Here, the buyer purchases the shares of the company itself. They get the whole package—the entire legal entity, with all its assets, debts, and history, warts and all. From the seller’s perspective (if they’re a company), this can be very attractive. The profit from selling the shares often falls under the “participation exemption” (deelnemingsvrijstelling), making the whole gain tax-free. But the buyer doesn’t get the same depreciation benefits; they inherit the company’s existing financial books and can’t re-value the assets to the higher price they just paid.
The choice between an asset and share deal is a classic negotiation battleground. It directly shapes the final price tag, because a tax advantage for you is often a tax headache for them.
Key Dutch Tax Considerations
The Dutch tax system has its own unique set of rules that you have to play by during an overgang van een onderneming. The government’s tax policies really set the stage for how these deals are valued and what the net outcome will be for everyone.
For example, take the Dutch corporate income tax (CIT). The way profits from a sale are taxed depends on this structure. The 2025 Dutch Tax Plan has set the CIT rate at 19% for taxable profits up to €200,000, and 25.8% for anything above that. This two-tiered system is especially important for SMEs, as the way you structure the deal can easily bump you from one tax bracket to the other.
A few other critical taxes to keep on your radar:
- Real Estate Transfer Tax (RETT): Does the business own property? If so, this is a big one. Starting in 2026, a new RETT rate of 8% is slated to apply to certain residential properties held by investors, which could complicate the transfer of businesses with significant real estate holdings.
- Value Added Tax (VAT): Generally, when you transfer a whole business, it isn’t subject to VAT. But—and this is a big but—the rules for this are very strict. Get the details wrong, and you could be facing a hefty VAT bill you never saw coming.
At the end of the day, untangling these financial threads is a job for an expert. Getting professional guidance is the only way to structure the deal for maximum tax efficiency, avoid those costly surprises, and make sure everyone walks away with the best possible value.
Common Mistakes to Avoid in a Business Transfer
Successfully navigating an overgang van een onderneming is less about grand strategy and more about getting the details right. I’ve seen countless transfers get bogged down, not because the idea was bad, but because of simple, avoidable procedural mistakes. Knowing what these pitfalls are ahead of time is your best line of defence.
The most common mistake? Misunderstanding what actually counts as a transfer. People often think an asset sale is just an asset sale. But if the business continues operating in a recognisable way after the deal, the law sees it as a full transfer. This one misstep can cause a cascade of problems, from violating employee rights to skipping mandatory consultations.
Another classic error is treating the Works Council (Ondernemingsraad) as an afterthought. Engaging with them isn’t a box-ticking exercise; it’s a legal requirement with a strict timeline. If you delay this step or show up with incomplete information, you’re inviting legal challenges that can stop the entire deal in its tracks.
Mishandling Employee Terms and Financials
Things often go wrong when it comes to employee contracts and the company’s books. The core rule is simple: employment contracts move to the new owner automatically, with every single right and benefit intact. Yet, new employers frequently try to change terms and conditions too soon or miss crucial details about pensions and accrued bonuses, which inevitably leads to disputes.
Think of it this way: a business transfer isn’t a chance to hit the reset button on employment contracts. The new employer literally steps into the shoes of the old one, taking on the workforce’s history and all the obligations that come with it.
On top of that, messy financial records can be a deal-killer. Before, during, and after the transfer, your accounting must be impeccable. Understanding the common accounting mistakes made by small business owners is a good starting point. Clean books make due diligence smoother and prevent nasty surprises that could sink the transaction’s value.
Underestimating Cross-Border Complexities
If the transfer crosses international borders, the complexity skyrockets. You’re suddenly juggling different legal frameworks and tax systems, and it’s easy to get tripped up. A recent case in the Dutch Court of Appeal really drove this point home. A company restructured by moving employees to a Swiss entity.
The court didn’t just glance at the paperwork; it took a hard look at how profits and cash were moving between the Netherlands and Switzerland. It found that the business had been undervalued for the transfer, which resulted in a massive tax bill. This case is a stark reminder that any international overgang van een onderneming demands razor-sharp planning on transfer pricing and tax compliance to sidestep crippling financial penalties.
Avoiding these common mistakes isn’t just about staying compliant. It’s about ensuring the transition is smooth and successful, allowing you to actually realise the full value you set out to achieve.
Common Questions About Business Transfers
When a business changes hands, it naturally raises a lot of practical questions for everyone involved. Let’s tackle some of the most common queries that pop up during an overgang van een onderneming to give you more clarity on how things work in practice.
Can My New Employer Change My Contract After the Transfer?
Straight to the point: no, they can’t. Your new employer is not allowed to simply change the terms of your employment contract to your detriment just because of the transfer.
It’s a core principle of Dutch law that all your existing rights—your salary, role, seniority, working hours, and everything else—move with you automatically. For any changes to happen, the new employer must follow the standard rules of employment law. This usually means getting your explicit agreement or, in very specific cases, using a pre-existing unilateral change clause, which has strict legal tests. The transfer itself is never a valid reason for a negative change.
Does This Law Apply to Small Businesses?
Yes, absolutely. The rules that protect employees during a business transfer apply to every single business in the Netherlands, no matter how big or small.
It makes no difference whether it’s a local bakery with two employees or a major division of a multinational corporation. If the deal fits the legal definition of a business transfer—meaning an economic unit continues to operate with its identity intact—the employee protection laws are in full force. There are no shortcuts or exemptions based on size.
Key Takeaway: The law cares about what is being transferred and whether the business essentially continues, not how many people it employs or how much money it makes.
Is Every Asset Deal a Legal Business Transfer?
Not necessarily. While it’s true that many asset deals end up qualifying as a business transfer, it’s not a given. It all boils down to what is actually being sold. A legal transfer only happens if the assets being moved are enough for the business to keep running as an ongoing concern.
Think of it this way: selling off a few company cars or some outdated office computers wouldn’t count. But selling a fully operational factory floor—complete with its specialised staff, client contracts, and the knowledge of how to run it—almost certainly would. The court looks at the whole picture to decide if the business is simply continuing its life under a new owner.