A contractor becomes an employee under Dutch law the moment the working relationship, as it is actually lived out from day to day, meets the four elements of an employment contract in article 7:610 of the Dutch Civil Code (BW): work performed by the person themselves, wages paid in return, an employer's authority over how that work is done, and a relationship that lasts for a certain period. No clause, job title or invoice can undo that. If those elements are present, an employment contract exists by operation of law, whatever the parties chose to call their arrangement.
That single rule is the reason Dutch businesses lose reclassification disputes. The written agreement is evidence of what the parties intended, but it is not the decision. Courts and the Belastingdienst (Dutch Tax and Customs Administration) look at how the parties actually conducted themselves, and they weigh every relevant circumstance together. This article sets out what the test is, how the Hoge Raad (Supreme Court) has refined it, what enforcement now looks like, what a reclassification costs, and what you can realistically do to keep a contractor relationship genuinely independent.
What the law actually tests
Dutch law does not have a statutory definition of a self-employed person. It has a definition of an employment contract, and everything else falls outside it. Article 7:610 BW describes the employment contract as an agreement under which one party, the employee, undertakes to perform work in the service of the other party, the employer, for a certain period of time and in return for wages. Four elements follow from that wording, and all four must be present at the same time.
The first is work (arbeid). The person must actually perform something of value for the other party. This element is almost never in dispute.
The second is wages (loon). There must be an obligation to pay a consideration for the work. A fee agreed per hour, per day or per project qualifies as consideration just as much as a monthly salary does, so the mere fact that someone invoices does not settle anything. What matters more is the structure behind the payment: whether it continues during illness and holidays, whether it is guaranteed regardless of the result, and whether the person carries any real risk of not being paid.
The third is a certain period of time (gedurende zekere tijd). This is a light requirement. A relationship that is not entirely incidental will usually satisfy it.
The fourth, and the one that decides most cases, is service (in dienst van), better known as the relationship of authority or gezagsverhouding. The question is whether the client is entitled to give binding instructions about how, when and where the work is carried out, and whether the worker is bound to follow them. It is the entitlement that counts, not how often it is exercised. A client who never needs to intervene because the contractor is competent still holds authority if the contract and the working practice give the client the last word.
How authority differs from ordinary client direction
Every client gives instructions. A client who commissions a report specifies the subject, the deadline and the format, and that is not authority in the legal sense. The line runs between instructions about the result and instructions about the process. Telling a painter which room to paint and in which colour describes the result. Telling the painter which brush to use, to start at nine and to report progress twice a day directs the process, and directing the process is what an employer does.
Authority also has an organisational side that has become steadily more important in Dutch case law. Where the work forms part of the ordinary, structural business operations of the client, and the person doing it is embedded in the organisation on the same footing as staff, that embedding points towards authority even if nobody stands over the worker's shoulder. A software developer who has worked on the client's core platform for three years, attends the same stand-ups as the salaried team and appears in the same rota is embedded, however carefully the contract is worded.
Personal performance and the right to send a substitute
Article 7:659 BW says that an employee must perform the work personally and may only be replaced by someone else with the employer's permission. A contractor under a contract for services (overeenkomst van opdracht, article 7:400 BW) is in principle free to have the work carried out by someone else, unless the parties agree otherwise. A genuine, usable right of substitution is therefore one of the clearest markers of independence.
Dutch courts are alert to substitution clauses that exist only on paper. A right to send a replacement that requires the client's prior approval, or that is impossible in practice because the engagement depends on this particular person's security clearance, licence or personal expertise, carries almost no weight. The question the court asks is whether substitution is a real option that the parties treated as real, not whether a clause was drafted.
How the Supreme Court weighs the whole picture
There is no checklist that produces an answer. Since its Deliveroo judgment of 24 March 2023 (ECLI:NL:HR:2023:443), the Hoge Raad has held that whether an agreement qualifies as an employment contract depends on all the circumstances of the case, viewed in conjunction with one another. The Court set out nine viewpoints that are relevant to that assessment, and Dutch law practice has worked with them ever since.
Those viewpoints are the nature and duration of the work; the way the work and the working hours are determined; whether the work and the worker are embedded in the client's organisation and ordinary business operations; whether there is an obligation to perform the work personally; how the agreement came about; how the remuneration is determined and paid; the level of that remuneration; whether the worker runs commercial risk; and whether the worker behaves as an entrepreneur in economic dealings, for example by acquiring new clients, building a reputation, carrying professional insurance and being treated as a business for tax purposes.
The list is deliberately open. Other circumstances may be relevant, and the weight of each viewpoint depends on the facts. What the Hoge Raad rejected is the idea that a single feature, such as a substitution clause or a high hourly rate, can decide the case on its own.
The Uber ruling and the weight of entrepreneurship
On 21 February 2025 the Hoge Raad answered preliminary questions in the Uber proceedings (ECLI:NL:HR:2025:319). Two points from that judgment matter for every business that engages contractors.
First, there is no rank order among the circumstances to be weighed. No viewpoint has priority over the others as a matter of law; the court weighs them all and explains the outcome. Second, the worker's external entrepreneurship, meaning how the person conducts themselves as a business in the wider market, is a full and relevant circumstance in that assessment, but it is not decisive either. Someone can be a registered business with a Chamber of Commerce number, several clients and their own liability insurance and still be an employee of one particular client if the relationship with that client bears the hallmarks of employment.
The practical consequence is that reclassification risk cannot be engineered away with one clever clause. It is managed by making sure that a substantial number of the viewpoints genuinely point in the direction of independence, and that the contract and the reality say the same thing.
The statutory presumptions that shift the burden of proof
Two provisions in the Civil Code make life easier for a worker who claims to be an employee. Under article 7:610a BW, anyone who performs work for another person for reward, weekly or for at least twenty hours a month, is presumed to do so under an employment contract once that pattern has lasted three consecutive months. The presumption is rebuttable, but the burden of proving that there is no employment contract lands on the client.
Article 7:610b BW adds a presumption about the scope of the work: where the agreed working hours are unclear or the actual hours structurally exceed them, the agreed volume is presumed to equal the average over the preceding three months. In a reclassification dispute this determines how much wage arrears the client owes.
These presumptions do not decide whether a relationship is employment. They decide who has to prove what, and in litigation that is often the difference between winning and losing. A client facing a long-running, weekly engagement should assume from the outset that it will have to justify the arrangement, not that the contractor will have to attack it.
The signals that point to disguised employment
In practice, disputes are decided on ordinary operational detail rather than on legal argument. The following patterns are the ones that repeatedly tip the balance towards employment, and they are worth auditing in any long-running contractor relationship.
Financial dependence and the absence of risk
Independence costs money. A contractor who bears no commercial risk at all looks like an employee to a Dutch court. The warning signs are recognisable: payment continues during holidays or illness; the fee is guaranteed regardless of whether the deliverable is accepted; the client reimburses equipment, software, training and insurance that a business would normally fund itself; there is no obligation to remedy defective work at the contractor's own expense; and the contractor carries no professional liability cover.
Working for a single client for a long time is not unlawful and does not by itself create an employment contract. It is, however, one of the circumstances that a court weighs, because a person whose entire income depends on one relationship has little practical freedom to refuse instructions. Contrary to a claim that circulates widely, there is no statutory rule in the Netherlands that a fixed percentage of turnover from one client automatically makes someone an employee. Treat concentration as a risk factor to be balanced against the other viewpoints, not as a threshold.
Integration into the organisation
The second cluster concerns how the person sits inside the business. A company laptop, a company email address, a permanent desk, a place on the organisation chart, attendance at team meetings that have nothing to do with the assignment, participation in performance reviews, being subject to internal staff policies and being presented to customers as part of the team all point the same way. So does managing the client's own employees, which is difficult to reconcile with the position of an outside supplier.
Control over time and method
The third cluster is scheduling. A requirement to work fixed hours, to follow the company holiday calendar, to request permission for time off, to log hours in the same system and under the same rules as staff, or to be supervised on daily tasks rather than assessed on deliverables, all suggest that the client directs the process. Where the assignment genuinely requires presence at set times, for example in healthcare or on a construction site, that alone does not create employment, but it does remove one of the arguments for independence and increases the importance of the remaining viewpoints.
What Tax Administration enforcement looks like now
The enforcement position has changed fundamentally and many businesses are still working from outdated assumptions. Since the Wet deregulering beoordeling arbeidsrelaties (Wet DBA) came into force in 2016 and abolished the old VAR declaration, the Belastingdienst had largely suspended enforcement on the classification of working relationships. That enforcement moratorium ended on 1 January 2025. The Tax Administration now assesses working relationships again and can impose additional payroll tax assessments where it finds employment.
A transitional regime softened the first stage. Throughout 2025 the Tax Administration carried out checks but did not impose penalties in respect of the qualification of the working relationship, using an educational approach and correction obligations instead. From 1 January 2026 that soft landing was only partly continued: penalties for intent or gross negligence (vergrijpboetes) can be imposed again, while penalties that do not require intent (verzuimboetes) are announced to follow from 1 January 2027. Inspections still tend to begin with a company visit rather than a full books examination.
On retrospective effect, the ordinary limitation period for additional payroll tax assessments is five years. The Tax Administration has stated that in the current phase it will in principle not go back further than 1 January 2025, with an exception for malicious conduct and for cases where the business had already been given a specific instruction and failed to act on it. The relief on penalties and retroactivity is policy rather than statute, so it can be tightened. Because these arrangements are revised regularly, always check the current position on the Belastingdienst website before relying on it.
Enforcement is not limited to tax. The worker can start civil proceedings and ask the court to declare that an employment contract exists, with all the consequences that follow. A pension fund with a mandatory sectoral scheme can claim contributions. And the UWV assesses the position independently when a worker applies for benefits.
What reclassification actually costs
Once a relationship is reclassified, the consequences run backwards, and they run in several directions at once. The client becomes liable for payroll tax and national insurance contributions that should have been withheld over the period concerned, plus interest. Because the amounts were never withheld from the worker, the assessment is normally calculated on a grossed-up basis, which makes the bill considerably larger than the tax on the fee that was actually paid.
Employment law consequences arrive at the same time. The worker is retrospectively entitled to holiday allowance, which under the Minimum Wage and Minimum Holiday Allowance Act is at least eight per cent of the gross annual salary. Statutory holiday entitlement under article 7:634 BW is at least four times the weekly working hours per year, and untaken days must be paid out. Under article 7:629 BW an employer must continue to pay at least seventy per cent of wages during illness for up to 104 weeks, so any period of sickness during the engagement becomes a claim. Where a mandatory sectoral pension fund applies, contributions can be claimed retrospectively as well.
Then there is the ending of the relationship. If the arrangement was employment, terminating it required either the worker's written consent, permission from the UWV, or dissolution by the subdistrict court on one of the statutory grounds in article 7:669 BW. A client who simply stopped issuing assignments will find that the employment contract never validly ended, that wages continued to accrue, and that the worker may claim a statutory transition payment and, in cases of seriously culpable conduct, a fair compensation on top.
Finally, a reclassification rarely stays contained. Where a business engages a group of contractors on materially identical terms, a finding against one of them is a template for the rest, and both the Tax Administration and a trade union can act on that. That is the exposure that turns an administrative issue into a balance-sheet issue.
Model agreements and what they are still worth
For years the standard answer to classification risk was a model agreement (modelovereenkomst) approved by the Belastingdienst. That route has narrowed. The Tax Administration stopped assessing and approving new model agreements on 6 September 2024. Model agreements that were valid on that date may continue to be used until 31 December 2029, after which the instrument disappears altogether.
Even where an approved model agreement is still in force, its protection is conditional in exactly the way the Hoge Raad case law suggests. It gives certainty only if client and contractor actually work in the way the agreement describes. If the practice deviates, the Tax Administration assesses the real relationship and the document does not help. The Tax Administration itself gave that mismatch, and the false sense of security it created, as the reason for withdrawing the scheme.
The sensible conclusion is not that written agreements have become pointless, but that the drafting has to be matched by operational discipline. A well-drafted contract for services remains the first line of defence, provided the business is genuinely willing to work the way the contract says it will.
Clauses that carry real weight
Four provisions do more work than any others, and each of them corresponds to a viewpoint the court will weigh. A substitution clause should allow the contractor to have the work performed by a suitably qualified person without prior consent, subject only to reasonable requirements of confidentiality and competence. A scope clause should define the deliverable and the result, and should not prescribe methods, tools, hours or location beyond what the nature of the work objectively requires. A clause on mutual freedom should confirm that the client is not obliged to offer further assignments and the contractor is not obliged to accept them, and that the contractor is free to work for others. A risk clause should place liability, professional indemnity insurance, rectification of defective work and the cost of the contractor's own equipment where a business would bear them.
What no clause can do is contradict the facts. A contract that grants freedom the client has no intention of allowing is worse than no contract, because it demonstrates that the parties knew what independence required and chose not to deliver it.
Keeping the practice consistent
Beyond the contract, the operational habits are what an inspector looks at: separate onboarding that does not run through the HR staff process, invoices that reflect deliverables rather than a fixed monthly amount irrespective of output, no company email address or place on the organisation chart, no participation in staff appraisals or internal reward schemes, no obligation to request leave, and a documented record that the contractor works for other clients. Reviewing long-running engagements at fixed intervals, and being willing to convert those that no longer stand up into employment contracts, is a great deal cheaper than defending them. Our guide to Dutch labour law sets out the wider framework these obligations sit in.
The VBAR bill and what would change if it passes
Legislation intended to clarify the assessment of working relationships is under discussion but is not in force, and nothing in it can be relied on yet. The bill on the clarification of the assessment of working relationships and a legal presumption, known by its Dutch abbreviation VBAR, was submitted to the Tweede Kamer (House of Representatives) on 7 July 2025 and is still before Parliament.
As it stands, the bill would write viewpoints into article 7:610 BW itself, distinguishing between indications of work-related direction and organisational embedding on the one hand and indications of the worker's own entrepreneurship on the other. It would also introduce a rebuttable presumption of employment for workers paid below a threshold hourly rate, with the client bearing the burden of proving that the relationship is not employment. The threshold figure and its indexation are part of the parliamentary debate, so no number should be treated as settled.
Whether the bill will be adopted in its current form is uncertain, and alternative proposals for a separate statute governing self-employment have been raised. Entry into force of Dutch legislation is set by royal decree after adoption by both chambers, and no date can be assumed in advance. Until then, the applicable law is article 7:610 BW as interpreted in the Deliveroo and Uber judgments, together with the presumptions in articles 7:610a and 7:610b BW. Businesses that align their arrangements with that case law now will not have much left to do if the bill passes.
A practical health check for existing engagements
Classification is not a one-off decision taken at signature. Relationships drift: a three-month project becomes a three-year role, a specialist becomes a team lead, a supplier acquires a company laptop. The table below sets out the five questions worth revisiting at least once a year for every long-running contractor.
| Assessment area | Question to ask | Points to independence | Points to employment |
|---|---|---|---|
| Direction and method | Who decides how, when and where the work is done? | The contractor sets their own hours and methods and works from a location of their choosing, subject only to what the assignment objectively requires. | The client sets working hours, gives step-by-step instructions and requires attendance at the office on the same basis as staff. |
| Commercial risk | Who bears the risk if the work goes wrong or dries up? | The contractor invoices for results, funds their own equipment and insurance, and must remedy defective work at their own expense. | A fixed sum is paid regardless of output, expenses are reimbursed and payment continues during holidays or illness. |
| Organisational embedding | Is the work part of the client's ordinary, structural business operations? | The assignment is a distinct, time-limited project outside the routine primary process, delivered as an external supplier. | The contractor performs the same core work as employees, sits on the organisation chart and manages or is managed within the team. |
| Personal performance | Could someone else actually do the work? | Substitution is permitted without prior consent and is realistic given the nature of the assignment. | The work must be performed by the named individual, or substitution needs approval and has never occurred. |
| External entrepreneurship | Does the contractor operate as a business in the market? | There are several clients, active acquisition, own branding, professional indemnity cover and treatment as a business for tax purposes. | The client is effectively the only source of income, there is no acquisition, and exclusivity is imposed in fact or by contract. |
Answers clustering in the right-hand column do not automatically mean an employment contract exists, because the assessment remains a weighing exercise. They do mean the arrangement would be difficult to defend, and that is the moment to restructure it or to convert it.
What to do if the Tax Administration comes knocking
An inspection usually starts with a company visit and a request for documentation: the agreements, the invoices, the hour registrations, the internal communications and the way the engagement is described in the client's own systems. The most damaging material is rarely the contract. It is the email in which a manager sets someone's hours, the appraisal form, the intranet page listing the contractor as a team member.
Three things are worth doing before that stage. Map the population: list every contractor, how long they have been engaged, what proportion of their income comes from your business if you know it, and whether they perform core or peripheral work. Fix the obvious cases first, because a single long-running, fully embedded contractor doing the same job as your employees is the file that will be opened first. And where a relationship should be converted, convert it deliberately, with advice on how to structure the transition, rather than ending it abruptly, which invites a claim that an employment contract existed all along and was terminated without a valid ground.
If an assessment has already been issued, the ordinary administrative route applies: an objection to the inspector within six weeks of the date of the assessment, and an appeal to the court thereafter. Those deadlines are strict, and the arguments that succeed are factual ones about how the relationship actually worked, supported by contemporaneous evidence.
Frequently asked questions
Classification questions rarely arrive in the abstract. The answers below deal with the situations clients raise most often, and each of them turns on the same principle: the facts of the relationship decide, not the label attached to it.
Does using a Model agreement guarantee I am compliant?
No, not on its own. While using a model agreement (modelovereenkomst) from the Dutch Tax and Customs Administration is a smart move, it's far from a magic shield. It creates a strong presumption that you have a contractor relationship, but that presumption is fragile.
It all comes down to 'substance over form'. The model agreement is only as good as the reality it describes. If your daily operations perfectly mirror the terms of the contract, you're on solid ground. But the moment practice diverges from paper, the agreement loses its power.
Imagine the agreement says the worker has total freedom. But in reality, you set their schedule, insist they use your laptop, and check in on their methods. In that case, the authorities will simply set the contract aside and look at what’s actually happening. Think of the agreement as a blueprint for a compliant setup. Follow it to the letter, and you're likely safe. Deviate, and the whole structure crumbles.
What is the difference between a ZZP'er and a freelancer?
Practically and legally, there's no difference at all. They're just two different words for the same thing: a self-employed professional working without any staff.
‘ZZP'er’ (Zelfstandige Zonder Personeel) is the official Dutch term used for legal and tax purposes. It's how a self-employed person registers with the Chamber of Commerce (KvK). 'Freelancer' is simply a more common, international term for the same kind of independent expert.
When the law assesses a working relationship, it couldn't care less about these titles. Whether someone is a ZZP'er, freelancer, consultant, or independent contractor, the analysis is always based on those same three pillars: authority, the obligation of personal labour, and wages. The label is irrelevant; the reality is everything.
Do these rules apply if my company is not based in the Netherlands?
Yes, almost certainly. If the person you're working with lives in the Netherlands and does most of their work here, Dutch labour and social security laws will apply. The key factor is where the work is physically done.
Having your headquarters in another country doesn't give you a free pass. Dutch authorities can—and will—assess the relationship against the three core criteria. If they find it's a disguised employment arrangement, your foreign company will be on the hook for some serious liabilities.
A very common outcome is that the foreign company is forced to register as an employer in the Netherlands. This instantly triggers obligations to withhold Dutch payroll taxes, pay social security contributions, and follow all local employment laws, just like any Dutch business.
Cross-border tax treaties can add even more complexity. If you're a foreign company bringing on Dutch-based contractors, getting specialised legal advice isn't just a good idea—it's essential to avoid costly surprises down the road.
Should I expect new contractor laws in the near future?
Yes, absolutely. The rules for independent contractors are a hot topic in the Netherlands, and the government is actively working on new legislation to bring more clarity and clamp down on sham arrangements.
The upcoming changes are expected to zero in on the 'authority' element, which has always been the muddiest part of the assessment. The goal is to introduce more objective, black-and-white tests to make it easier for everyone to distinguish between genuine entrepreneurs and employees.
While the final details are still being hammered out, the direction is clear: expect more scrutiny and less grey area. The smart move isn't to wait for the new laws to pass. It's to review your current contractor agreements now. By making sure you're compliant with today's stricter interpretations, you'll be well-prepared for whatever comes next and will have already minimised your risk.
How Law & More can help
Law & More advises Dutch and international businesses on the classification of working relationships and represents them when the Belastingdienst or a worker challenges an arrangement. We review contractor portfolios against the current case law, draft and revise contracts for services, structure conversions to employment where that is the right answer, and act in objection, appeal and civil proceedings. If you are unsure whether an engagement would survive scrutiny, our employment lawyers in the Netherlands are happy to look at it with you before it becomes a dispute. Please contact us to discuss your situation.
