Legislative proposal:  Clarity on self-employed vs. employee relationships

The legislative proposal Clarification of Assessment of Employment Relationships and Presumption of Rights is scheduled to come into effect in the Netherlands on 01 July 2025. The aim of the proposal is to combat false self-employment by further specifying the open norm of “working in the service of”. 

Reason and background

The proposal aims to clarify when work should be performed as an employee and when as a self-employed person. This clarification is crucial as the Dutch Minister of Social Affairs and Employment believes that self-employed individuals often (wrongly) do not pay income tax and social security contributions. Moreover, the Minister argues that protection for self-employed individuals at the lower end of the market cannot be guaranteed in this way, and equal treatment between employees and self-employed individuals cannot be ensured.

The proposal introduces two significant changes:

• It adds three new paragraphs to the current Article 7:610 of the Dutch Civil Code (DCC), clarifying the criterion of “working in the service of”. 
• It introduces a new Article 7:610aa DCC, establishing a presumption of rights where workers earning less than EUR 32.24 per hour are presumed to have an employment relationship.

The criterion “working in the service of”

The criterion “working in the service of” is clarified in the new Article 7:610 DCC, which outlines several main elements to determine whether this criterion is met:

• The work is performed under the substantive supervision of the employer; or
• The work or the worker is organisationally embedded in the employer's organisation; and
• The worker does not perform the work on their own account and at their own risk.

Article 7:610 DCC explains the interplay between these elements, emphasising that if elements (1) and (2) are met and outweigh element (3), an employment relationship exists. Conversely, if (3) outweighs (1) and (2) combined, it indicates self-employment. If (1) and (2) are equally weighted with (3), further examination of the worker's behaviour in economic transactions (3+) is necessary.

Presumption of an employment contract

The new Article 7:610aa DCC introduces a (rebuttable) civil presumption to determine whether a worker is an employee or self-employed. An hourly rate below EUR 32.34 implies employment. Initially, only the worker can invoke this presumption. The employer can attempt to rebut the presumption by providing evidence that no employment relationship exists. 

Once the presumption is confirmed by the court, the classification of the employment relationship also has third-party effect, meaning that the Dutch Tax Authority and pension administrators can also rely on it. It triggers national insurance contributions, income-related health care contributions, and employee insurance premiums on the income derived from the employment contract. 

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Maaike Koot is a lawyer at TK and part of the international corporate employment law team. Maaike advises on reorganisation and dismissal, (collective change of) employment conditions, sickness and reintegration, temporary employment law and management agreements.