Bogus self-employment under Dutch law
Bogus self-employment (schijnzelfstandigheid) occurs when a person is formally engaged as a self-employed contractor (zzp'er) but the economic reality of the working relationship meets the legal criteria of an employment contract under Article 7:610 of the Dutch Civil Code. The three core criteria for an employment contract are: (1) a personal obligation to perform work; (2) payment of wages (loon); and (3) a relationship of authority (gezagsverhouding). If all three are present, the contract is an employment contract in law, regardless of how the parties have labelled it.
In November 2023, the Dutch Supreme Court issued a landmark ruling in the Deliveroo case (ECLI:NL:HR:2023:1748), establishing that courts must assess the nature of the working relationship on all relevant circumstances holistically, without any of these circumstances being decisive in isolation. The ruling effectively lowered the threshold for establishing an employment relationship, as it confirmed that the parties' intentions are relevant but not determinative.
Consequences of reclassification under Dutch law
If a working relationship is reclassified as employment, the client becomes the employer for all legal purposes. The consequences are significant: the employer becomes liable for income tax (loonheffing), social security contributions, statutory sick pay, annual leave entitlements, and dismissal protection from the date the employment relationship commenced. The Dutch Tax and Customs Administration (Belastingdienst) enforces reclassification with retroactive effect, potentially going back five years.
The Wet DBA framework governs how the Belastingdienst assesses and enforces self-employment classification. Active enforcement resumed in January 2025, exposing both clients and contractors to significant financial risk.
Prevention and risk management under Dutch law
Businesses that engage freelancers should assess the working relationship against the Deliveroo criteria, ensure genuine entrepreneurial risk for the contractor, avoid long-term exclusive arrangements, and - where doubt exists - consider engaging through a secondment or employment arrangement instead. Model agreements approved by the Belastingdienst can provide some comfort but do not guarantee freedom from reclassification if actual practice differs from the agreed terms.
A statutory presumption of employment was introduced in Article 7:610a of the Dutch Civil Code specifically to address bogus self-employment: any person who performs work for at least 20 hours per month for three consecutive months for the same principal is presumed to work under an employment contract, shifting the burden of proof to the principal. When assessing the classification of a working relationship, courts take into account a checklist of indicators including whether the principal can give binding directives, who bears the entrepreneurial risk, who provides the equipment and materials, whether remuneration continues during illness or leave, and whether the worker performs other activities for different clients. No single factor is decisive - all circumstances must be weighed in their mutual connection, as confirmed by the Supreme Court in the Deliveroo ruling.