The pitfalls of a freelance contract under Dutch law

The pitfalls of a freelance contract in the Netherlands cluster around six clauses: the description of the working relationship, the scope of the assignment, intellectual property, liability, payment terms and termination. A downloaded template will usually deal with all six, and will usually deal with them in the client's favour. The most expensive of them is the first, because if the relationship is later found to be an employment contract, the tax consequences fall on the client and the loss of self-employed status falls on the freelancer, regardless of what the paper says.

What follows goes through the pitfalls of a freelance contract that actually cause disputes, what Dutch law says about each, and what to change before signing. It is written for both sides of the relationship, because a contract that exposes one party usually creates a problem for the other as well.

Bogus self-employment: the risk that outranks the others

Under Dutch law an agreement is an employment contract if three elements are present: work performed personally, remuneration, and a relationship of authority. That definition is in Article 7:610 of the Dutch Civil Code and it operates by law. Parties cannot contract out of it, and the label on the document is not decisive. If the three elements are present in fact, the agreement is an employment contract whatever it is called, and the freelance construction is a case of bogus self-employment (schijnzelfstandigheid).

How the relationship is assessed

The Supreme Court has made clear that the assessment is holistic. All the circumstances of the case are weighed together, and no single factor decides. The elements that carry weight include the nature and duration of the work, how the work and the working hours are determined, whether the worker is embedded in the client's organisation, whether the worker has an obligation to perform the work personally, how the remuneration is set and paid, the level of the rate, whether the worker bears commercial risk, and whether the worker genuinely behaves as an entrepreneur in the market by working for several clients, investing and acquiring new work.

That last point deserves emphasis because it is the one freelancers control. Entrepreneurship outside the assignment counts. A worker with several clients, their own tools, professional insurance and an acquisition effort is in a materially different position from one who has worked full time at a single client for three years.

What enforcement looks like now

The enforcement moratorium ended on 1 January 2025, and the Belastingdienst has since enforced the rules on bogus self-employment in full. Where a relationship is reclassified, the client faces retrospective payroll tax and social security contributions, with interest, and the freelancer can lose entrepreneurial tax reliefs for the years concerned. Reclassification can also bring employment law protections into play, including dismissal protection and continued payment during illness, which is a substantial exposure for a client that thought it was buying flexibility.

The legislative picture continues to move. The clarification part of the Wet VBAR, which was to have codified the assessment criteria, was dropped in March 2026 for lack of support, and the government is preparing a broader Zelfstandigenwet in its place. Nothing in that changes the position today: the assessment rests on Article 7:610 BW and the case law, and enforcement is active.

The new statutory presumption for lower hourly rates

A separate measure has been adopted and is worth planning for. The Wet invoering rechtsvermoeden van arbeidsovereenkomst op basis van uurtarief was passed by the Senate on 16 June 2026 and published in the Staatsblad on 29 June 2026. It creates a rebuttable presumption of an employment contract where the agreed hourly rate falls below a statutory threshold, which is indexed annually. Where the presumption applies, the worker can invoke it and the burden shifts to the client to demonstrate that the relationship is not employment.

The Act enters into force on a date to be fixed by royal decree, and that date may differ for different parts of it. No date has been set, so the presumption does not yet apply and the ordinary assessment continues to govern. Clients working with lower-rate contractors should nonetheless be reviewing those relationships now rather than after commencement.

What to put in the contract, and what to do in practice

Two things have to line up: the wording and the working reality. In the contract, describe a result to be delivered rather than hours to be worked, include a genuine right of substitution, avoid language granting instruction on how the work is done as distinct from what is to be delivered, avoid holiday and sickness procedures, and record that the contractor carries their own insurance and equipment.

In practice, do not issue a company pass and staff email address as a matter of course, do not include the contractor in performance reviews or staff appraisals, do not require attendance at internal team meetings unrelated to the deliverable, and do not require leave to be requested. A model agreement is a starting point rather than a shield: the tax authority looks at how the relationship actually runs. Our overview of Dutch labour law sets out the employment framework that applies if the relationship is reclassified.

Scope, deliverables and additional work

The second most common source of dispute is a job description that does not describe the job. Phrases such as the activities as discussed or support with the implementation leave the boundary of the assignment undefined, and on a fixed price the entire commercial risk of that ambiguity sits with the contractor.

A workable scope clause states what will be delivered, in what form, by when, and to what standard, and it says what is expressly out of scope. Where the work is iterative, cap the revision rounds. Where the fee is time-based, agree a rate per role, an hour cap and a notification threshold at which the contractor must warn before exceeding it. That warning obligation protects both sides: it prevents an unexpected invoice and gives the client the chance to decide.

Additional work needs its own mechanism rather than a general reservation. The clause should say who may authorise it, in what form, whether email suffices, at what rate, and what happens to the delivery date. Without it, a contractor who carries out extra work on a verbal request is left arguing about whether it was agreed at all, and a client can find itself billed for work it never approved.

One further point applies specifically to fixed-price work. Under Dutch law a contractor who discovers that the agreed price will be exceeded for reasons outside the original assumptions must warn the client in time; failing to do so weakens the claim for the excess. Building that warning into the contract as a defined step turns a legal duty into a workable process.

Substitution and who actually does the work

A right of substitution matters twice over. It is one of the factors that distinguishes an assignment from an employment contract, and it is what allows a contractor to take holiday, fall ill or take on a second project without breaching the agreement.

The clause has to be real to be worth anything. A substitution right subject to the client's unfettered approval, or one that has never been exercised in a relationship running for years, will carry little weight in an assessment. Draft it so that the contractor may use a suitably qualified replacement, subject to reasonable requirements as to qualifications, confidentiality and security screening, with the contractor remaining responsible for the work and for the replacement's compliance.

Where the contractor genuinely intends to use subcontractors, say so and deal with the consequences: liability for their work, flow-down of confidentiality and data protection obligations, and assignment of any intellectual property they create. A client that has not obtained rights from the subcontractor has not obtained them at all, whatever the head contract says.

Where the work is arranged through an intermediary rather than directly, note that a new registration regime is coming for the sector. Under the Wet toelating terbeschikkingstelling van arbeidskrachten, registration with the relevant authority runs from 1 November to 31 December 2026, the Act enters into force on 1 January 2027 and enforcement begins on 1 January 2028. Parties using intermediaries should check now whether the arrangement falls within its scope.

Intellectual property and portfolio rights

Copyright belongs to the maker. There is no equivalent for freelancers of the rule that gives an employer the copyright in work created by employees, so a client that has not obtained a transfer does not own what it paid for. That surprises clients regularly, and it surprises them at the worst moment, typically during due diligence on a funding round or a sale.

A transfer of copyright under Dutch law requires a deed: a written instrument signed for the purpose. A clause in a signed contract satisfies that requirement, but a purchase order, a quotation accepted by email or a set of general terms incorporated by reference may not. If ownership is intended to pass, put the assignment in the signed agreement and describe what is being assigned.

Then decide what is actually being transferred, because a blanket assignment of everything is rarely right. Distinguish the deliverable created for this client from the contractor's pre-existing material, tools, libraries, frameworks and methods. The sensible structure assigns the bespoke deliverable and grants the client a perpetual, non-exclusive licence to the background material to the extent needed to use the deliverable. Without that split, a contractor can find itself unable to reuse its own toolkit on the next assignment.

Two further items are routinely forgotten. Moral rights cannot be transferred under Dutch copyright law, although a maker may waive certain of them in writing, including the right to object to alterations; if the client intends to modify the work, deal with this expressly. And agree portfolio rights, meaning whether and how the contractor may show the work and name the client, since a wide confidentiality clause will otherwise prohibit it. Our article on protecting intellectual property in the Netherlands covers the wider position.

Rates, payment terms and cash flow

Dutch law sets limits on payment terms, and many freelance contracts are drafted as if it did not. Where no term is agreed, payment falls due within thirty days. Between businesses of comparable standing, a longer term may be agreed up to a maximum of sixty days, and beyond that only where the parties can show the longer term is not manifestly unfair to the creditor. Where a large company contracts with a small or medium-sized business or a self-employed person, the maximum is thirty days, and this has been the position since 1 July 2022.

The consequence of exceeding the limit is not that the clause is merely unattractive. A payment term that breaches the statutory maximum is void and is replaced by the statutory term, and statutory commercial interest runs from that point without any notice of default being required. A contract offering a ninety-day term from a large client is therefore not a negotiating position to accept reluctantly; it is unenforceable, and saying so politely at the outset usually resolves it.

Beyond the term itself, three clauses decide whether the cash actually arrives. Make the trigger for payment objective: delivery of a defined milestone, not internal approval, sign-off by a named person who may be on holiday, or the issue of a purchase order the client controls. Agree advance or milestone invoicing on longer assignments rather than a single payment on completion. And include a suspension right, so that continued non-payment allows work to stop without the contractor being in breach; without it, stopping work is a risk rather than a remedy.

Add an indexation clause for assignments running beyond a year, stating the index and the date on which the adjustment takes effect, and deal with expenses: what is reimbursable, at what rate, and whether prior approval is needed. Statutory interest and reasonable collection costs are recoverable by law, but saying so in the contract removes the argument.

Liability, caps and indemnities

An uncapped liability clause in a freelance contract is a mismatch of risk to reward: a contractor earning a daily rate can be exposed to a claim many multiples of the entire assignment value. Dutch law permits limitation of liability between businesses, so the cap is a matter for negotiation rather than for permission.

A balanced clause caps liability at a defined amount, commonly the fees paid under the assignment or an annual equivalent, and excludes consequential loss such as lost profit, lost savings and business interruption. It should also be mutual: a clause that limits only the client's liability while leaving the contractor exposed is a red flag in itself.

Two limits apply whatever is agreed. Reliance on an exoneration clause can be set aside where invoking it would be unacceptable by standards of reasonableness and fairness, which the courts apply most readily where the damage was caused by intent or conscious recklessness. And an insurer will not pay beyond the policy, so a cap agreed above the professional indemnity cover leaves the difference with the contractor personally. Check the policy limit and the exclusions before agreeing a figure, and check that the policy covers the type of work in the assignment.

Indemnities need separate attention because they sit outside the cap unless the contract says otherwise. An indemnity against third-party claims arising from the contractor's own intellectual property infringement is reasonable. An indemnity against all third-party claims however arising, including those caused by the client's own instructions or materials, is not. Where the client supplies content, data or specifications, the indemnity should run the other way for claims arising from them.

Termination, notice and exit

The default position under Dutch law is that a client may terminate an assignment at any time. A contractor acting in the course of a profession or business may terminate an assignment entered into for a definite period only on serious grounds. Between businesses these rules can be varied by agreement, which is precisely why the termination clause repays reading: templates commonly give the client a short-notice right and give the contractor none.

Where an assignment is terminated early, the contractor is in principle entitled to a reasonable remuneration for the work performed, and where termination is attributable to the client the full fee may be payable. Fixing this in the contract, by stating what is payable on termination for convenience and what happens to work in progress, avoids a valuation argument at the worst possible time.

Aim for symmetry on notice, a notice period proportionate to the length and intensity of the assignment, and a defined exit process: handover of documentation, transfer of accounts and credentials, delivery of work in progress, and a date by which final invoices are issued and paid. Where the client depends on the contractor operationally, a short transition period at an agreed rate is worth more than a longer notice period nobody honours.

Deal separately with termination for cause, which should require a material breach and, where the breach is capable of remedy, a period to remedy it. Immediate termination rights triggered by any breach whatsoever are a common template feature and are worth narrowing.

Confidentiality, non-compete and relationship clauses

The statutory rules that restrict non-competition clauses in employment contracts do not apply to an assignment. A restraint in a freelance contract is an ordinary contractual obligation, tested against the general standards of reasonableness and, where it is wide enough to matter, against competition law. That means a freelancer has fewer built-in protections here than an employee, not more.

It also cuts the other way in the assessment of the relationship. A restraint that ties a contractor to a single client, prohibits work for an entire sector and runs for years is evidence of dependence rather than entrepreneurship, and it undermines the client's own position on bogus self-employment. Both parties therefore have an interest in keeping it proportionate.

On confidentiality, define the confidential information rather than covering everything the contractor learns, exclude information that is public or independently developed, set a duration, and make the obligation mutual. On restraints, limit them by activity, by territory and by time, and prefer a non-solicitation clause covering identified clients and staff over a general prohibition on competing. Where a penalty clause is attached, check whether it excludes damages or is cumulative with them, and note that a court may reduce a penalty that is manifestly excessive. Our article on breach of a non-compete clause and trade secrets deals with enforcement in practice.

The clauses that get skipped

Personal data

If the contractor processes personal data on the client's behalf, the GDPR requires a written processor agreement setting out the subject matter, duration, nature and purpose of the processing, the categories of data and data subjects, and the client's instructions. This is not optional and it is not satisfied by a confidentiality clause. Where the contractor determines its own purposes, for instance in its own client administration, it is a controller in its own right and the agreement should say which role applies to what.

Deal also with security measures, the use of sub-processors, notification of a personal data breach within a period that allows the client to meet its own seventy-two hour deadline to the supervisory authority, and the return or deletion of data at the end of the assignment.

Workplace, equipment and safety

Say who provides equipment, because a contractor working entirely on the client's hardware and systems looks less independent. Deal with access to premises and systems, and with what happens to that access when the assignment ends. Where the work is carried out on the client's site or involves physical risk, the client's duty of care under health and safety legislation can extend to people working there who are not its employees, so responsibilities for instruction, protective equipment and incident reporting should be recorded rather than assumed.

Delivery, acceptance and warranties

Define what acceptance means and how it happens: who tests, against what criteria, within what period, and what follows if the client says nothing. A deemed acceptance provision after a defined period protects the contractor against indefinite silence. Distinguish defects, which the contractor fixes, from changes, which are additional work. And keep any warranty proportionate, tied to the agreed specification and to a defined period rather than to a general promise that the deliverable will be fit for whatever the client later decides to do with it.

Applicable law and forum

For a Dutch contractor working for a Dutch client, Dutch law and a Dutch court are the obvious choice and the clause is unremarkable. It becomes worth attention in cross-border work, where a foreign law and a foreign forum can make a modest claim uneconomic to pursue. Arbitration is not automatically better: it is confidential and can be quicker, but the costs are borne by the parties rather than subsidised, which favours the larger party. Where the amounts are small, a Dutch court and Dutch law generally serve the contractor better. Our guidance on international commercial contracts covers this in more detail.

A short check before you sign

Run the document against six questions that cover the main pitfalls of a freelance contract. Does it describe a result rather than a job? Is there a real right of substitution? Is the scope defined well enough that you could tell whether it had been met? Does intellectual property pass in the way both parties intend, with background material carved out? Is the payment term within the statutory maximum, with an objective trigger and a suspension right? Is liability capped, mutual and within your insurance?

If the answer to any of them is no, that is the item to negotiate. Send changes as tracked amendments with a one-line reason for each rather than a list of objections; clients accept far more that way. And keep the signed version, the annexes and the correspondence together, because the annex containing the specification is the document that decides most disputes and it is the one most often missing.

Frequently asked questions

How Law & More can help

We review and negotiate freelance and assignment agreements for both contractors and clients, covering the classification of the working relationship, scope and acceptance, intellectual property, liability and indemnities, payment terms and exit arrangements. We also advise clients on reviewing an existing pool of contractors against the current enforcement position, and represent parties in disputes about additional work, termination and unpaid invoices. If you would like an agreement assessed before you sign, or a portfolio of existing agreements reviewed, please contact us. Our employment law guides cover the surrounding rules.