Amendment clauses in general terms: when 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.

Below we explain what an amendment clause is, which rules of the Dutch Civil Code and EU law apply, what the courts look at, how business and consumer contracts differ, and how to draft a clause that holds up.

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 stay flexible. Costs of raw materials and energy rise, legislation changes and services are modernised. Without an amendment clause you would have to agree 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 free of charge, 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.

Example: 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.

How do you draft an amendment clause that holds up?

Name the reasons for change, describe the procedure and give the customer a way out. The checklist below helps you test your existing clause.

Specify the permitted reasons for change. Avoid “at our discretion” or “if we deem it necessary”. Use objective grounds such as “in the event of changes in legislation”, “in the event of a change in the VAT rate” or a named price index with a described calculation method.
Build in a notification procedure. Record how and when you inform customers. For consumers, a notice on your website is not enough: inform each customer personally, on a durable medium, in good time before the change takes effect. In telecom that is at least one month.
Guarantee a right to terminate. If a change is to the customer’s detriment, give the customer the explicit right to end the contract free of charge by the date the change takes effect.
Limit the scope. Restrict the power to amend to specific parts, such as service or procedural rules. Changing core obligations, such as the main product or the price outside an agreed index, is risky.
Test the balance of interests. Ask whether the disadvantage to the customer is in proportion to your interest. If not, a court may set the clause aside.
Distinguish between business and consumer customers. Consider two sets of terms: a strict set for consumers and a more flexible set for business customers.
Document everything. Record internally why you make a change and keep evidence of your communication with customers. If a dispute arises, a good file strengthens your position.
Have your terms reviewed regularly. Consumer law and case law develop, and a clause that was acceptable years ago may no longer be.

A quick self-test: read your current amendment clause and ask yourself three questions. Would I find this fair and transparent if I were the customer? Are the reasons for a change specific enough for an outsider to check? Does the customer have an easy way out if he or she disagrees? If the answer to any of these is “no” or “doubtful”, action is needed.

In 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

Can I change my terms and conditions without a reason?

In consumer contracts, in principle not. A change without a valid reason that is specified in the contract is quickly considered unfair, unless the customer expressly agrees to the new terms.

Do I have to inform customers in advance about changes?

Yes. Consumers must be informed individually, clearly and in good time, for example by e-mail. A message on your website is generally not enough. In telecom, EU rules require at least one month’s notice.

What happens if my amendment clause is unfair?

The clause can be annulled, with retroactive effect. Changes you made on the basis of it lose their basis: you may have to refund price increases, and the old terms continue to apply.

Is there a difference between business and consumer contracts?

Yes. Consumers receive extra protection through the black and grey lists and EU consumer law. Between businesses there is more freedom of contract, although small businesses in a position similar to consumers may benefit from the lists through the reflex effect.

Can I automatically index prices to inflation?

Yes, a price indexation clause is generally allowed if the contract explicitly describes the index used, such as the consumer price index of Statistics Netherlands (CBS), and how the calculation works. Towards consumers, a price increase in the first three months after the contract is concluded remains subject to the black list.

What if a customer objects to a change?

If a change is to the customer’s detriment, the customer should in most cases be able to terminate the contract free of charge by the date the change takes effect. You cannot force the new terms on the customer without offering that option.

How often can I change my terms and conditions?

There is no statutory maximum, but reasonableness and fairness apply. Frequent changes without justification undermine legal certainty and make it more likely that a court will find the clause, or the way it is used, unreasonable.

In closing

An amendment clause is permitted, but only within clear limits, and towards consumers you bear the risk if the clause is vague. A review of your general terms before a dispute arises is usually much cheaper than refunds afterwards. Our corporate law team reviews and drafts general terms and amendment clauses for business and consumer contracts. Unsure where you stand? Tell us about your situation. We will let you know your options within one working day.