A discretionary bonus scheme was at the heart of a ruling issued by the Rotterdam District Court on 10 July 2026, relevant for employers and employees working with such arrangements or other yet-to-be-detailed bonus schemes (ECLI:NL:RBROT:2026:8771). A former Business Development Director claimed payment of € 810,000 gross in bonus from his former employer, together with an entitlement to the increase in value of shares. The subdistrict court dismissed the claim in its entirety. The ruling illustrates how important it is for bonus arrangements to be set out concretely and measurably.
The facts
The employee had been employed as Business Development Director since 1 June 2022. In addition to the employment agreement, supplementary conditions had been agreed, including a bonus scheme. This scheme provided, among other things, for a 100% target in a year with good performance and a good result for the group, room for a higher or lower bonus on a discretionary basis and based on targets, and that the bonus would be made measurable by setting targets for performance in sales, joint ventures and funds. It was also envisaged that the bonus could in future be used to purchase shares in the company.
The employee terminated the employment agreement as of 1 August 2025 and subsequently claimed payment of the bonus over several years, based on 100% of his salary, plus the increase in value of a portion of the shares. The employer disputed that a concrete bonus had ever been established or that the conditions for a share arrangement had been met.
Haviltex: interpretation of the bonus scheme
The subdistrict court emphasises that the question of how a contractual arrangement should be interpreted cannot be answered solely on the basis of a linguistic reading of the text. What is decisive is the meaning that the parties, in the given circumstances, could reasonably attribute to the provisions and what they could reasonably expect from each other. This is the well-known Haviltex standard, derived from the Dutch Supreme Court’s ruling of 13 March 1981 (ECLI:NL:HR:1981:AG4158, NJ 1981/635, Haviltex), which is settled case law for the interpretation of all types of agreements, including ancillary employment arrangements such as a bonus scheme.
Application of that standard led to the finding that the bonus scheme was not a concrete arrangement on the basis of which payment could simply be claimed. The text of the scheme did not make clear what was meant by ‘a year with good performance and a good result for the group’, by ‘the possibility of a higher or lower bonus’, or by the ‘discretionary authority based on targets’. Moreover, the text itself stated that certain elements still had to be further elaborated by the parties and that the bonus still had to be made measurable by setting targets.
The context in which the arrangements came about was also relevant. The employee had moved from a bank and asset manager to the employer, with the intention that he would bring in new projects and generate revenue, and would in due course be able to become a shareholder. The bonus payment was thus linked to commercial successes to be achieved by the employee. Since an important deal on which the parties had high expectations did not go ahead, and there was no evidence of other projects brought in that should have led to further elaboration of the targets, the employee could not claim the bonus.
No bonus established, no appearance of a commitment created
The employee further argued that for the years 2022, 2023 and 2024 it had already been established that he was entitled to a 100% bonus. This was not accepted, because no letters or other documents were submitted showing that the employer had actually established the bonus for the relevant years. The mere fact that the employer had not contradicted the employee’s earlier proposals did not mean that the employer agreed with their content. On the contrary, the correspondence showed that the parties were still negotiating both the bonus and a possible share buy-back arrangement in 2025, a process which the employee evidently did not want to wait for, given his notice of termination as of 1 August 2025.
The appeal to a so-called appearance of a commitment likewise failed. An employer who fails to fulfil a condition for a bonus, while it is within its power to do so, may under certain circumstances be deemed to have fulfilled that condition. This rule aligns with Article 6:23(1) of the Dutch Civil Code (Burgerlijk Wetboek, BW), which provides that a condition is deemed fulfilled if the party with an interest in its non-fulfilment obstructed its fulfilment, while that party was obliged to cooperate in its fulfilment. The employee relied in this context on ECLI:NL:RBAMS:2016:6037 (Amsterdam District Court, 6 September 2016), in which an employer had failed to establish the annual functional plan underlying a concretely defined bonus scheme. The Rotterdam subdistrict court explicitly distinguishes that precedent: in that case the bonus scheme itself was concretely defined and it was only the employer’s implementing act that was missing, whereas in the present case the scheme itself still required further elaboration and the employee had not achieved the agreed commercial results. There was therefore no obstruction attributable to the employer within the meaning of Article 6:23 BW, so the condition could not be deemed fulfilled.
The share arrangement
A comparable outcome applied to the share arrangement. The supplementary conditions provided that, after one year, subject to a mutual sense of goodwill, the employee would have the possibility of purchasing a percentage of the shares, provided this was set out in an additional agreement. Neither condition had been met. The fact that the employee had, on his own initiative, incorporated a private limited company and had a shareholders’ agreement drawn up did not change this: unilateral action by the employee does not result in an agreement between the parties.
Legal framework: burden of proof and good employership
The outcome of this case is closely linked to the general rule of Article 150 of the Dutch Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering, Rv): a party invoking the legal consequences of facts it asserts bears, in principle, the burden of proving those facts. The employee claimed that his bonus for several years had already been established and that a share arrangement had come into existence, but failed to substantiate this with documents in the face of the employer’s reasoned dispute. That worked to his disadvantage: a mere assertion is insufficient where the opposing party disputes the facts on reasoned grounds.
The doctrine of good employership (Article 7:611 BW) also plays a role in the background. That article may imply that an employer is obliged to actually give concrete substance to a bonus scheme that requires further elaboration, for example by setting targets in a timely manner or assessing performance. The subdistrict court acknowledges this principle in as many words: it was the employer’s responsibility to provide a further framework for the bonus scheme. That the claim nevertheless fails is because the bonus scheme was not free-standing, but was expressly linked to commercial results to be achieved by the employee. Good employership does not oblige an employer to pay out a bonus that is contractually made dependent on results the employee has not achieved.
Practical implications
This ruling highlights a recurring pitfall with discretionary bonus schemes: the more attractive and open-ended the wording, the greater the risk of dispute at the end of the employment relationship. Employers are well advised to make bonus schemes concrete on a periodic basis, for instance by recording annually which targets apply and whether they have been met. For employees, it is advisable to seek clarity on the substance of such schemes in good time, rather than only after giving notice, and to have any agreements confirmed in writing.
For Law & More, this ruling underscores the importance of clearly formulating variable remuneration components in employment agreements and supplementary conditions. We advise both employers and employees on the design, interpretation and enforcement of bonus and share arrangements, and on the strategy to be followed when a dispute arises in this regard.
Frequently asked questions
What exactly does the Haviltex standard entail?
The Haviltex standard is the test formulated by the Dutch Supreme Court in its ruling of 13 March 1981 (ECLI:NL:HR:1981:AG4158, NJ 1981/635) for the interpretation of agreements. What is decisive is not only the linguistic meaning of the provisions, but also the meaning the parties could reasonably attribute to those provisions in the given circumstances, and what they could reasonably expect from each other. This standard is also applied to employment-law arrangements, such as a bonus scheme in this case.
Is a discretionary bonus scheme always enforceable?
No. If a bonus scheme still requires further elaboration, for example because targets still need to be set or because the scheme refers to a discretionary authority, an employee cannot simply claim payment. This may be different once the scheme has been made sufficiently concrete, or where the employer has wrongly failed to fulfil a condition while it was within its power to do so (Article 6:23 BW).
When is an unfulfilled bonus condition nevertheless deemed fulfilled?
Article 6:23(1) BW provides that a condition is deemed fulfilled if the party with an interest in its non-fulfilment obstructed its fulfilment, while that party was obliged to cooperate in its fulfilment. The employee invoked this principle by reference to ECLI:NL:RBAMS:2016:6037, in which an employer had failed to establish the annual functional plan underlying a concrete bonus scheme. In the case discussed here, that situation did not arise: the bonus scheme itself was not sufficiently concrete, and the employee had not achieved the agreed commercial results, so this argument did not succeed.
Can an employer’s silence count as agreement with a bonus proposal?
Not without more. The mere fact that an employer has not contradicted an employee’s proposal regarding the bonus or a share arrangement does not automatically mean that the employer agrees with it. The subdistrict court looks at the entire correspondence and context to assess whether actual agreement was reached. Moreover, under Article 150 Rv the party invoking the existence of an arrangement bears the burden of proving it; if substantiation is lacking, that is at that party’s risk.
What role does good employership play in bonus schemes?
Article 7:611 BW obliges an employer to act as a good employer. This may mean that an employer is required to actually give concrete substance to a bonus scheme that still requires elaboration, by setting targets and assessing performance. However, this obligation does not go so far as to require an employer to pay a bonus that is contractually made dependent on commercial results the employee has not achieved.
What lessons can employers draw from this?
Employers are well advised not to leave bonus schemes open-ended for too long, but to make them concrete on an annual basis: which targets apply, whether they have been met, and what this means for the bonus. This prevents disputes afterwards, limits the risk of a successful appeal to Article 6:23 BW, and strengthens the employer’s evidentiary position if a dispute arises.
What lessons can employees draw from this?
Employees with a discretionary or yet-to-be-elaborated bonus scheme are well advised to actively seek clarity during the employment relationship about the substance of targets and results, and to have any agreements confirmed in writing. Given the burden-of-proof rule in Article 150 Rv, waiting until after giving notice makes it considerably harder to prove any entitlements.
Can Law & More assist with a dispute over a bonus or share arrangement?
Yes. Law & More advises and litigates for both employers and employees on the design, interpretation and enforcement of variable remuneration, bonus schemes and share arrangements, and assists clients in conducting court proceedings where the parties cannot reach agreement between themselves.
