Update on the Dutch Freelance Worker Dossier following the AG's Opinion in FNV-Uber.

There have been many developments in the freelance worker (zzp) dossier, and they are happening quickly. We would like to provide an update, but to fully understand where we are now, let's start at the beginning.

How it all began

The term ‘zelfstandige zonder personeel’ (self-employed without personnel, or zzp’er) was introduced by the Dutch Tax Authority in the 1980s. In 1988, there were only 1,600 freelancers, but the number grew rapidly. In 2001, the Kok government introduced the declaration of employment status (VAR), allowing freelancers to obtain clarity from the tax authority on the classification of their income. In 2005, the scope of the VAR was expanded, giving clients of freelancers assurance that they would not be liable for payroll taxes and contributions. After that, things progressed quickly. The number of freelancers exploded, and a great deal of misuse arose.

An attempt to rein in the development

To curb this trend, the DBA Act was introduced in May 2016, effectively ending the use of the VAR. This caused significant unrest in the market among clients and freelancers. In November 2016, this led to the implementation of a moratorium on enforcement by the tax authority.

A challenging dossier for ministers

Since then, several ministers have worked on a solution. This has resulted in the draft VBAR Act, which is currently awaiting advice from the Council of State. It remains uncertain whether this law will be enacted and in what form, but in the meantime, the tax authority has announced the resumption of enforcement. From January 1, 2025, false self-employment will once again be addressed.

Court decisions provide direction

In the meantime, we see that the judiciary is becoming increasingly consistent in its assessment of employment relationships. In its well-known Deliveroo ruling, the Dutch Supreme Court set out 10 criteria for evaluating employment relationships, which lower courts have since applied fairly consistently. In light of this, one might question whether the VBAR Act is still necessary.

The role of entrepreneurship

One question that remains unanswered arose in a case brought by the FNV trade union against Uber in the Amsterdam Court of Appeal. The case concerns whether the fact that taxi drivers are independent entrepreneurs should play a role in assessing their employment relationship with Uber. Given the social significance of this issue, the court has referred preliminary questions to the supreme court.

The AG’s opinion

Recently, advocate general De Bock issued her opinion on the matter. She argued that "personal entrepreneurship" of Uber drivers, in this case, should play only a limited role in determining employment relationships. The criterion of "personal entrepreneurship" should only be considered if the other criteria from the Deliveroo ruling do not provide a clear answer to whether there is an employment contract. The limited significance of "personal entrepreneurship" aligns with the draft proposal of the VBAR Act, according to AG De Bock.

Will the supreme court follow AG De Bock?

It is uncertain whether the supreme court will follow the AG's advice. At LawyerlinQ, we believe there are good reasons not to.

We believe that the AG’s advice overlooks the fact that the mandatory nature of labor law is based on compensating inequality and protecting the weaker party. Along with Stefan Sagel, Uber’s attorney, we believe it is crucial to determine what type of worker you are dealing with before applying labor law.

The lower house tries to steer the tax authority

It is unclear when the supreme court will issue its ruling. However, what is certain is that the tax authority will resume enforcement on January 1. In the Dutch Parliament, several motions have been passed aimed at ensuring a softer transition when the enforcement moratorium is lifted. The key focus is on targeting vulnerable groups during enforcement and publishing a clear decision-making framework on the tax authority’s website by November 1.

LawyerlinQ takes care of it

We will continue to closely monitor developments and keep you informed. Of course, we will also continue to relieve and support your organization in the lawful engagement of high-quality flexible legal capacity and expertise, even if this requires adjustments in contracting freelancers.

If you are not yet working with LawyerlinQ but would like to review your hiring practices, don’t hesitate to contact us for a non-committal conversation about the best approach from January 1 onwards.