Discretionary bonus scheme: when can you claim payment?

A discretionary bonus scheme that still has to be worked out, for example because targets have not yet been set, does not give you an enforceable right to payment. That changes if the scheme is concrete and only the employer’s implementing step is missing: then the bonus condition may be treated as fulfilled under Article 6:23(1) of the Dutch Civil Code (BW).

The subdistrict court (kantonrechter) of the Rotterdam District Court applied this distinction on 10 July 2026 (ECLI:NL:RBROT:2026:8771). A former Business Development Director claimed €810,000 gross in bonus plus the increase in value of shares. The court rejected the claim in full.

When can you claim payment under a bonus scheme?

Only when the scheme is concrete enough to show what you are entitled to, or when the employer has actually set the bonus. Whether that is the case follows from interpretation of the scheme under the Haviltex standard.

Under that standard, set by the Supreme Court (Hoge Raad) on 13 March 1981 (ECLI:NL:HR:1981:AG4158), the wording of a contract is not decisive on its own. What counts is the meaning the parties could reasonably give to the provisions in the circumstances, and what they could reasonably expect from each other. The test applies to every contract, including bonus terms in an employment agreement.

What happened in the Rotterdam case?

The employee started on 1 June 2022 as Business Development Director. His supplementary terms provided for a “target of 100% in a year with good performance and a good result for the group”, a discretionary higher or lower bonus based on targets, and targets still to be set for sales, joint ventures and funds. After one year he could buy 1% of the company, with the bonus invested in it, subject to an additional agreement.

He resigned with effect from 1 August 2025 and claimed a bonus of 100% of his salary over several years, plus the increase in value of the shares. The employer argued that no bonus had ever been set and that the share conditions had not been met.

Why was the bonus claim rejected?

The court found that the scheme was not a concrete arrangement but one that still had to be worked out. The text did not show what “good performance”, “a good result for the group” or the discretionary power meant, and the targets still had to be agreed.

The context mattered as well. The employee had moved from a bank and asset manager to bring in new projects and revenue, and the bonus was linked to his commercial success. An important deal fell through, and no other projects were shown that would have required targets to be set.

For 2022 to 2024, the employee produced no letters or other documents showing that the employer had set his bonus. The fact that the employer did not contradict his e-mailed proposals did not mean it agreed with them. In 2025 the parties were still negotiating the bonus and a share buy-back.

Why did the argument of a frustrated condition fail?

The court accepted that it was the employer’s responsibility to give the bonus scheme a further framework. It also accepted the rule that a condition is treated as fulfilled if the employer prevents fulfilment while this is within its control, which corresponds to Article 6:23(1) BW: a condition counts as fulfilled if the party with an interest in non-fulfilment prevented it, where reasonableness and fairness require this.

The employee relied on a ruling of the Amsterdam District Court of 6 September 2016 (ECLI:NL:RBAMS:2016:6037). There, the employer had never set the annual performance plan for a concretely defined bonus scheme, and the employee received 85% of the bonus. The Rotterdam court distinguished that case: here the scheme itself was not concrete, and the commercial results it depended on had not been achieved.

What about the shares?

The share option depended on a further agreement, which was never concluded. The employee had set up his own private limited company and had a shareholders’ agreement drafted, but unilateral steps do not create an agreement. The court also found that the employer had not created the appearance of a promise of a bonus or shares. The employee was ordered to pay €1,298 in legal costs.

Who must prove that a bonus was agreed?

The employee who claims the bonus. Under Article 150 of the Dutch Code of Civil Procedure (Rv), the party relying on the legal consequences of facts it asserts bears the burden of proving them, unless a special rule or reasonableness and fairness lead to a different allocation.

The good-employer standard of Article 7:611 BW can oblige an employer to set targets and assess performance in time. It does not oblige an employer to pay a bonus that depends on results the employee did not achieve. Read more on the boundaries of good employer conduct.

What should you check as an employee?

• Check whether your bonus scheme states concrete targets, percentages and a reference period.
• Ask each year in writing which targets apply and whether they have been met.
• Get every bonus decision confirmed in writing; silence from your employer is not agreement.
• Keep documents that show the employer prevented you from meeting a condition, such as missing target letters or assessments.
• Clarify bonus and share entitlements before you resign, because you carry the burden of proof under Article 150 Rv.

What should you check as an employer?

• Set targets in writing at the start of each bonus year.
• Assess performance and record the bonus decision each year.
• Define vague terms such as “good performance” or “group result” in measurable criteria.
• Make clear in writing which part of the bonus is discretionary and on what basis.
• Make share options conditional on a separate written agreement and state the conditions.

What can we do for you with a bonus dispute?

Our employment lawyers advise employers and employees on variable remuneration within the wider framework of Dutch employment law.

• We interpret your bonus scheme under the Haviltex standard and assess whether a claim is enforceable.
• We assess whether a bonus condition can be treated as fulfilled under Article 6:23 BW.
• We draft or review bonus and share clauses so that targets and conditions are measurable.
• We draft the demand letter or the reasoned response to a bonus claim.
• We conduct proceedings before the subdistrict court or negotiate a settlement.

Summary

• A bonus scheme that still has to be worked out does not give an enforceable right to payment.
• The Haviltex standard (ECLI:NL:HR:1981:AG4158) decides what the parties could reasonably expect from the scheme.
• Under Article 6:23(1) BW, a condition the employer prevented may count as fulfilled, but only if the scheme itself is concrete.
• The employee must prove that a bonus or share arrangement was agreed (Article 150 Rv).
• In the Rotterdam case of 10 July 2026, a claim of €810,000 was rejected in full.

Frequently asked questions