In the Netherlands, there is considerable uncertainty about the distinction between working as an employee and working as a self-employed person. This regularly leads to situations of false self-employment, which has negative consequences for social security, labor law, and tax regulations. For example, falsely self-employed people do not enjoy protection against risks such as unemployment, illness, and old age. False self-employment undermines solidarity within the social system, as less is contributed to general social provisions (healthcare and/or state pension), and it can be seen as unfair competition both among workers and among employers. After all, falsely self-employed people can enjoy tax benefits intended for entrepreneurs, and employers do not contribute to employee schemes.
To provide clarity, the Decree Clarifying the Assessment of Employment Relationships (hereinafter: the Decree) has been established. This Decree provides further rules for assessing whether work is performed “in service of” an employer, as referred to in Article 7:610 of the Dutch Civil Code (hereinafter: DCC). The Decree elaborates the assessment framework introduced in the DCC by the Act Clarifying the Assessment of Employment Relationships (Wet Vbar).
The purpose of this Decree is to provide a clear and workable legal assessment framework, so it can be better determined when there is an employment contract and when there is self-employed work. This should counter false self-employment and improve enforceability. The Decree aligns with recent case law from the Supreme Court, including the Deliveroo and Uber rulings, and advice from, among others, the Borstlap Committee and the Social and Economic Council (SER).
The Decree clarifies the criterion “working in service of” by distinguishing two main elements: (i) substantive and organizational control by the employer, and (ii) working for one’s own account and risk by the worker. The first element indicates employee status, and the second element indicates self-employment.
The main elements are further defined by, in principle, an exhaustive list of indications derived from case law and European jurisprudence. For employer control, this includes the authority to give instructions and directions, monitoring and intervening in work, performing work within the organizational framework of the organization, the structural nature of the work, and performing similar work as other employees. For working for one’s own account and risk, relevant indications include bearing financial risks and results, performing work independently and recognizably, possessing specific training or skills not structurally present in the organization, the short duration or limited scope of the assignment, and characteristics of entrepreneurship in similar work.
However, the assessment framework is not a checklist; the assessment must be made based on all relevant facts and circumstances of the specific case. Not all indications need to be present; the assessment of the employment relationship is based on which main element carries the most weight, according to the underlying indications. Additionally, a “safety valve provision” is included, allowing unforeseen circumstances outside the indications to be considered in the assessment. In the future, unforeseen circumstances may arise that do not fall under the indications but should still be considered in assessing employment relationships. This concerns indications that, for example, cannot yet be foreseen due to the current state of technology.
It is intended that the Decree will enter into force on 1 July 2026, without transitional law being applied. The provisions included therein will therefore apply directly to both existing and newly established employment relationships from that date onwards.