On 21 June 2024, the out­go­ing Min­is­ter Van Gen­nip of Social Affairs and Employ­ment sent the bill “Ver­duidelijk­ing Beoor­del­ing Arbeidsrelaties en Rechts­ver­moedens” (VBAR) to the Coun­cil of State. With this bill, the gov­ern­ment wants to cla­ri­fy the rules regard­ing inde­pend­ent con­tract­ors.

The Inter­net con­sulta­tion of the bill (see our earli­er blog on this sub­ject) gen­er­ated many crit­ic­al com­ments. The main cri­ti­cisms are as fol­lows:

• Too com­plex and unclear: there are con­cerns that the assess­ment does not be accur­ate in all situ­ations and may lead to con­fu­sion. Even in cases where it is clearly a genu­ine self-employed per­son, the cur­rent assess­ment might res­ult in a clas­si­fic­a­tion as an employ­ee
• Restric­tion for inde­pend­ent con­tract­ors: vari­ous self-employed organ­iz­a­tions and employ­ers are con­cerned that the bill lim­its the flex­ib­il­ity of the inde­pend­ent con­tract­ors. Strict rules would cur­tail entre­pren­eur­i­al free­dom, mak­ing it more dif­fi­cult to be an inde­pend­ent con­tract­or. This affects not only false inde­pend­ent con­tract­ors, but also genu­ine inde­pend­ent con­tract­ors.
• Unbal­anced assess­ment: the indi­vidu­al pos­i­tion of the entre­pren­eur does not seem to be the start­ing point, but rather a stand­ard assess­ment based on an hourly rate.
• Restric­tion of the inde­pend­ent con­tract­ors mar­ket: the bill may have neg­at­ive con­sequences for the labor mar­ket. Stricter rules around false inde­pend­ent con­tract­ors and the intro­duc­tion of a leg­al pre­sump­tion of employ­ment could lead to less employ­ment for the inde­pend­ent con­tract­ors and high­er costs for employ­ers.
• Enforce­ment and imple­ment­a­tion: there are con­cerns about the enforce­ment of the new rules by the Tax and Cus­toms Admin­is­tra­tion. Does the Tax and Cus­toms Admin­is­tra­tion have suf­fi­cient capa­city and resources to effect­ively mon­it­or com­pli­ance with the new legis­la­tion?

These cri­ti­cisms indic­ate sig­ni­fic­ant con­cerns and res­ist­ance from vari­ous sec­tors of soci­ety. Although the assess­ment frame­work of the bill has been adjus­ted in response to the pub­lic con­sulta­tion, the exact pro­pos­al has not yet been made pub­lic at the time of writ­ing this blog. How­ever, it has been indic­ated that the factor ‘core activ­it­ies’ will no longer be used as an indic­a­tion.

The intro­duced pre­sump­tion of employ­ment based on hourly wage remains, mak­ing it easi­er for false self-employed indi­vidu­als to enforce an employ­ment con­tract. If an inde­pend­ent con­tract­or can demon­strate that their income is lower than the applic­able hourly rate, the organ­iz­a­tion must prove that there is no employ­ment con­tract.

In our earli­er blog, it was men­tioned that the enforce­ment morator­i­um would be lif­ted on 1 Janu­ary 2025. How­ever, the new legis­la­tion will not come into effect until 1 Janu­ary 2026, at the earli­est. The pos­i­tion of the Tax and Cus­toms Admin­is­tra­tion appears to be that this will not hinder fisc­al enforce­ment start­ing 1 Janu­ary  2025. After all, the VBAR bill is a codi­fic­a­tion of the cur­rent state of civil case law and can there­fore already be applied.

We will, of course, keep you informed of devel­op­ments and are happy to think with you about the best struc­ture for your (flex­ible) organ­iz­a­tion.

Update: The assess­ment frame­work of the VBAR bill has now been pub­lished. A new blog on this top­ic will fol­low shortly!

Would you like to know more about everything con­cern­ing the sub­ject of inde­pend­ent con­tract­ors? Then click here!