How can you, as an employer, be sure that the self-employed people you work with are truly self-employed? And as a self-employed person, how do you convince your client that you really are self-employed? This question has occupied clients and freelancers for years. The government wants to provide more clarity with the new Self-Employed Persons Act (Zelfstandigenwet), which is planned to take effect on January 1, 2028. In this blog you can read what the proposal involves and what it can mean for you.
Why a new Self-Employed Persons Act?
Whether someone is an employee working under an employment contract is currently assessed using the definition of the employment contract in Article 7:610(1) of the Dutch Civil Code. Under this provision, an employment contract requires (a) work, (b) wages, (c) for a certain period of time and (d) a relationship of authority. Whether these elements are met has been further developed in case law, of which the Deliveroo ruling and the Uber ruling of the Dutch Supreme Court are currently the most important.
Under this case law, an employment relationship is assessed on the basis of all facts and circumstances of the case (a holistic assessment). The Supreme Court has indicated that the following nine facts and circumstances (viewpoints) may be relevant:
- the nature and duration of the work;
- the way in which the work and working hours are determined;
- the extent to which the work and the contractor are part of the client’s organization;
- whether or not there is an obligation to perform the work personally;
- the way in which the agreements were made;
- the way in which the remuneration is determined and paid;
- the level of the remuneration;
- the extent to which the contractor bears commercial risk in the assignment; and
- the extent to which the contractor behaves, or can behave, as an entrepreneur.
In practice, these viewpoints still make it difficult to assess whether an assignment can be carried out by a self-employed person or whether there is an employment contract. The Self-Employed Persons Act is intended to give clients and self-employed persons the certainty that a self-employed person is truly self-employed.
The core of the proposal: two tests
The proposal adds a new second paragraph to Article 7:610 of the Civil Code. It contains two tests: the self-employed person test and the work relationship test. If both tests are met, there is in any case no relationship of authority between client and worker. Without authority there is no employment contract, so the worker can work as a self-employed person.
The self-employed person test
The self-employed person test looks at the person of the self-employed individual and how he or she behaves in economic activity.
1. The basic conditions.
First, the self-employed person must meet the basic conditions for working as a self-employed person. This means that he or she is registered with the Dutch Chamber of Commerce (KVK), has a VAT number, has a separate account for business transactions, is responsible for invoicing (which may be carried out by someone else), applies a payment term for customers and clients, and makes payments to third parties and can be held to account for late payment.
2. Multiple clients
In the current calendar year and the previous calendar year combined, the self-employed person must have had at least three different clients or customers.
3. Provisions against business risks.
Each year, the self-employed person spends a minimum amount on provisions against the risks that come with working as a self-employed entrepreneur. Think of insurance for (long-term) disability, a provision for (short-term) illness, a pension provision or pension savings, business liability insurance, business interruption insurance, professional liability insurance and/or legal expenses insurance for businesses. The amount has not yet been determined.
The work relationship test
The work relationship test looks at the working relationship between worker and client: how much freedom does a self-employed person have? What about his or her independence, and therefore the absence of “authority”? Several criteria apply here as well:
- Intention of the parties: do both parties intend to work outside an employment contract?
- Freedom in the “how”: does the self-employed person decide how the work is carried out? The client may give instructions on what needs to be done.
- Freedom in time and place: does the self-employed person decide when and where he or she works? Exceptions are work that can physically only be performed at a certain location and work that is only possible at certain times.
- Own account and risk: can the self-employed person gain economic benefit while also bearing financial risk?
Not meeting the two tests? Then you are not automatically an employee
If one or both tests are not met, that does not automatically mean there is an employment contract. The parties then simply lack certainty that the self-employed person is truly self-employed.
The assessment of whether there is an employment contract then falls back on the current rules of Article 7:610(1) of the Civil Code and the applicable case law. That assessment may show that there is an employment contract, but it may also show that the worker can work as a self-employed person under the current rules.
What does this mean for clients and freelancers?
The Self-Employed Persons Act is still a proposal. It can still be amended following the internet consultation held in October 2026, and it must still be debated in the House of Representatives and the Senate. The intended effective date is January 1, 2028.
Do you work with self-employed persons as a client? Then it is wise to start paying attention to how the self-employed persons you engage work and how the assignments are structured. It is also wise to keep following developments around the introduction of the Self-Employed Persons Act. We are happy to keep you informed!
Do you have questions about working with self-employed persons, or do you want to know more about the proposal and what it means for your organization? Feel free to contact Hian Li Ko.
Hian Li Ko | Ko & Co Advocaten
