Client or Employer?

For the past decade, a so-called enforcement moratorium has been in place. Now businesses would be wise to review the status of the workers within their organization. Otherwise, the Tax Authority and/or subdistrict court will make that assessment—with all the possible consequences.

Fiscal and civil qualification of the employment relationship

For nearly ten years, the Tax Authority, due to the moratorium, has not retroactively enforced the qualification of employment relationships for payroll taxes, except in cases of deliberate wrongdoing by the client. However, civil courts have regularly ruled—at the request of workers—that there was an employment contract instead of a contract for services. This exposes the client to all protective employment law regulations. The most well-known example is the landmark case of the Deliveroo riders, who were deemed employees. The criteria set out by the Supreme Court in that ruling now serve as a practical guide for entrepreneurs and courts in answering the question: employee or not?

VBAR Act

The government intends, through the Assessment of Employment Relationships and Legal Presumption Act (VBAR), to clarify when a worker can be engaged as a freelancer. This draft law introduces criteria to assess whether a relationship qualifies as an employment contract (indications pointing to employment, indications pointing to self-employment, and signs of entrepreneurship).

The VBAR also includes a legal presumption: workers engaged at a rate below €33 per hour will be presumed to be employees. The draft bill received over 1,000 responses, many of them critical. It is now questionable whether that  law will be enacted; in anyway not before January 1, 2026. Until then, businesses can rely on the well-known criteria stemming from the Deliveroo ruling as well as from the Uber-case in which the Supreme Court ruled that there is no ranking between the viewpoints from the Deliveroo judgment in the qualification of an agreement. Furthermore the Uber judgment of February 25, 2025 confirmed that aspects outside the working relationship concerned should also be taken into account in the assessment of entrepreneurship as one of the criteria. For example, whether the worker has several clients, has a registration with the Chamber of Commerce, has a website of his own, etc.

Model agreements on hold

While the VBAR is not yet in force, the Tax Authority will resume enforcement based on the same so-called holistic assessment as ruled on in the Deliveroo- and Uber judgment. For businesses still relying on model agreements, this marks the end of an era. The “free substitution” model agreement was already withdrawn earlier this year following the Deliveroo ruling. As of September 6, 2024, the Tax Authority will no longer process new applications for model agreements. Existing approved model agreements will remain valid. However, as before, it is crucial that both client and worker actually adhere to the agreement. Otherwise, it may still be determined that an (employment) relationship exists—fiscally and/or civilly. Such determinations will be made retroactively, based on all facts and circumstances (the holistic assessment).

Financial consequences

The resumed enforcement by the Tax Authority primarily targets clients, who may face tax reassessments and penalties starting January 1, 2025. No corrections will be made for years prior to 2025, unless deliberate wrongdoing is involved. In addition, clients may still face court rulings imposing all obligations and costs associated with the retroactive classification of a supposed freelancer as an employee. Employers should also consider the obligation to retroactively contribute to a mandatory pension fund for these employees.

Review the position of freelancers

While there is much to say about the resumed enforcement of false self-employment in 2025—especially since the VBAR will not take effect before 2026—it is prudent for businesses to take the Tax Authority’s announcement seriously. This means critically reviewing contractual arrangements with independent workers and mapping out how freelancers and pseudo-freelancers are actually engaged. It may also involve discussions with workers where an employment relationship could exist, to explore alternative ways to structure the collaboration in line with the (Deliveroo) criteria. In some cases, this may lead to terminating the working relationship, but be sure to comply with contractual and legal requirements.

More information

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