False self-employment, or ‘schijnzelfstandigheid’ as it’s known in Dutch, is becoming increasingly significant in the Dutch labor market. It occurs when individuals are officially registered as self-employed (ZZP’ers – zelfstandige zonder personeel) but, in practice, function similarly to regular employees. Although this arrangement might initially appear attractive due to potential tax benefits and flexibility, it poses considerable legal risks and financial consequences for both freelancers and companies.

Wet DBA (Deregulering Beoordeling Arbeidsrelaties)
In 2016, the Wet DBA (Employment Relationships Deregulation Act) was introduced, replacing the VAR (Verklaring Arbeidsrelatie) system to combat false self-employment. Under the VAR system, freelancers could obtain declarations stating their self-employment status, absolving employers of potential payroll taxes.

This Act aims to clarify the employment relationship between freelancers (ZZP’ers) and companies, to ensure that freelancers are genuinely self-employed, and not disguised as employees of the company. Model agreements between freelancers and clients were introduced to clarify working relationships and reduce false self-employment risk.

The Administration that is responsible for enforcing this law is The Dutch Tax Administration (in the Netherlands well known as the Belastingdienst). Prior to 2025, the enforcement of regulations concerning false self-employment was limited. The Dutch Tax Administration primarily targeted cases exhibiting clear malicious intent, where employers deliberately misclassified workers to evade taxes and social security
contributions. This approach resulted in a moratorium on active enforcement, except in blatant instances of non-compliance.

However, as of January 1, 2025, this moratorium has been lifted. The Tax Administration now actively enforces compliance with employment classification rules, allowing for the imposition of corrective measures, additional tax assessments, and fines without prior warnings. This shift underscores the government’s commitment to curbing false self-employment and promoting fair labor practices.

Despite its good intentions, the Wet DBA has also faced significant criticism due to its complexity, uncertainty, and insufficient clarity, resulting in ongoing revisions and delays in full enforcement. As of January 1, 2025, notable changes have been implemented to strengthen enforcement and clarify the distinction between genuine self-employment and employment relationships.

Understanding false self-employment
False self-employment occurs when a worker is classified as a self-employed contractor but operates under conditions typical of an employment relationship. There are three main criteria to determine employment status:

1. Authority relationship (gezagsverhouding) – Does the client/employer control how, where, and when the worker performs their duties?
2. Personal labor obligation – Must the worker perform tasks personally, or can they freely delegate them to others?
3. Wage obligation – Is there an obligation for the client to pay a set wage regularly?

In addition to that, the Dutch Tax Administration uses the Deliveroo Ruling to assess whether an employment contract exists. In this ruling, the Supreme Court makes clear that the question of whether there is an employment contract depends on all the circumstances of the case and that a certain freedom for the employee does not necessarily mean that there is no employment contract.

The nine points of view from this ruling provide additional direction and clarification in the assessment:

1. Nature and duration of work: Simple and lengthy work often indicates employment. The difference between an obligation of effort (employment) and an obligation of result (self-employment) also plays a role.
2. Determination of work and working hours: Less freedom in determining working methods, working hours and location more often indicates employment.
3. Embedding in the organization: Does the freelancer work side-by-side with employees and follow the same rules and direction? This indicates employment.
4. Obligation of personal labor: Must the self-employed worker perform the work personally, or can he be replaced? Obligation of personal labor indicates employment.
5. Establishment of agreements: Did the self-employed person have room for negotiation when entering into the agreement? Little room for negotiation more often indicates employment.
6. Remuneration: Does the self-employed person have control over his rate and method of payment? Compensation comparable to that of employees indicates employment.
7. Level of remuneration: Is the remuneration comparable to that of salaried employees?
8. Commercial risk: Does the self-employed person bear the entrepreneurial risk himself, such as in the event of illness or repair costs? Less risk more often indicates employment.
9. Entrepreneurship: Does the self-employed worker work for multiple clients and invest in name recognition? Less entrepreneurship indicates employment.

If these criteria align more closely with employment than independent contracting, the Dutch Tax Administration may classify the arrangement as false self-employment.

Consequences for both employers as freelancers
The enhanced enforcement measures have significant implications for both employers and freelancers. Employers must thoroughly evaluate their engagements with self-employed individuals to ensure compliance with the clarified criteria. Failure to do so can result in corrective actions, additional tax liabilities, and potential fines. Freelancers on the other side, should assess their working arrangements to ensure they meet the characteristics of genuine self-employment. This includes having multiple clients, exercising control over how and when work is performed, and bearing entrepreneurial risks.

ZZP Check

To help freelancers and employers navigate the complexity, the Dutch Tax Authority introduced the ZZP Check (Zelfstandigencheck). This online assessment tool provides preliminary guidance on whether a working relationship might qualify as employment or genuine self-employment. It offers practical questions concerning autonomy, financial risk, and workplace relationships. Although the ZZP Check is informative, it is not legally binding; however, it provides essential insight for freelancers and businesses.

There are ten key elements that help you determine your employment classification:

1. Work activities and work hours: “The client determines how the work is done or sets the working hours.”
   Freelance assignments should have clear goals and endpoints. Genuine self-employed individuals independently decide how and when to perform their tasks. However, preliminary discussions about availability and task expectations are acceptable.
2. Duration of work activities: “The work is performed over an extended period (> 3
   months).”
   Assignments lasting more than three months at over 20 hours per week with one client can indicate employment rather than freelancing. Although there is no absolute threshold, extended duration or exclusivity to one client is scrutinized closely.
3. Who performs which tasks: “The freelancer performs tasks identical to those executed by regular employees.”
   If the freelancer performs core tasks that regular employees carry out, this might signal disguised employment. Freelancers should ideally contribute unique expertise rather than routine operational tasks.
4. Nature of tasks performed: “The freelancer performs tasks structurally integral to the organization.”
   This criterion examines organizational embedding. Freelancers should be contracted for specialized knowledge or skills that significantly enhance or advance the client’s organization beyond regular operational activities.
5. Performing work personally: “The freelancer must perform the work personally and can only delegate with client permission.”
   Genuine freelancers typically have autonomy to delegate tasks or collaborate with other professionals independently. This criterion tests freelancers’ true independence in achieving agreed-upon objectives.
6. Payment terms: “The payment is agreed upon per hour or month and made at fixed intervals.”
   Freelancers ideally charge clients on a project basis or invoice per actual hours worked without fixed payments. Unlike employees, freelancers bear the risk of unpaid hours due to illness or project disruptions.
7. Payment level: “Payments align closely with employee wages for comparable tasks.”
   Freelancers should typically receive compensation reflecting specialized skills or unique expertise. Payment comparable to employee salaries for similar tasks may indicate disguised employment.
8. Commercial risk: “The freelancer faces minimal commercial risk, with the client covering costs if tasks are not executed properly.”
   True freelancers assume significant entrepreneurial risks, including investments in equipment, services, or potential financial losses associated with unsuccessful projects or unmet objectives.
9. Number of assignments and clients: “The freelancer regularly acquires new assignments from various clients.”
   Genuine freelancers actively seek new clients and assignments. Consistently working for multiple clients showcases entrepreneurial initiative and independence.
10. Result orientation: “The freelancer has an obligation of effort (inspanningsverplichting).”
    Unlike employees, freelancers typically commit to achieving concrete results. Compensation might depend directly on achieving these specific outcomes rather than merely exerting effort.

Conclusion
In recent years, the Netherlands has undertaken significant measures to address the issue of false self-employment, aiming to ensure fair labor practices and proper classification of workers. By staying informed and vigilant, all parties involved can mitigate risks and foster fair, sustainable working relationships in the Dutch labor market.

Want to know more or are you uncertain about your situation? Get in contact with us at Habsburg Legal Services.

Written by Marinka
Tax Lawyer (jurist) and Startup/Business specialist