The Assessment of Employment Relationships and Legal Presumption (Clarification) Act (Wet Verduidelijking Beoordeling Arbeidsrelaties – VBAR) is a draft legislative proposal aimed at providing clarity regarding the classification of employment relationships. In particular, it seeks to address the distinction between an employment contract and self-employment, with the goal of combating false self-employment and ensuring legal certainty for both workers and clients.
On 27 March 2025, the Minister of Social Affairs and Employment announced in a progress letter to the House of Representatives that the VBAR proposal would be amended. This amendment has been prompted by the ruling of the Dutch Supreme Court in the so-called Uber case, which we discussed in a previous article.
Summary of the Uber ruling
In its ruling, the Supreme Court held that, in determining whether an employment contract exists, there is no hierarchy among the various relevant circumstances. All relevant circumstances must be assessed in their mutual context. The Supreme Court expressly confirmed that external entrepreneurship may be a relevant factor in assessing whether an employment contract exists; however, such entrepreneurship alone does not automatically preclude the existence of an employment contract.
Under the original structure of the VBAR proposal, external entrepreneurship played only a limited role. According to the original text, this factor would only be considered if the core indicators—namely, ‘substantive and organisational supervision’ on the one hand, and ‘working at one’s own account and risk’ on the other—did not yield a clear outcome. In other words, external entrepreneurship was treated merely as a residual category.
Amendment of the VBAR proposal
However, as the Uber ruling makes clear that no ranking exists among the relevant factors in assessing the nature of a employment relationship, the Minister found it necessary to amend the VBAR proposal. External entrepreneurship is now to be treated as a fully-fledged circumstance, not merely as a residual factor.
The revised proposal aims to reflect the realities of today’s labour market, in which hybrid working models and self-employment coexist increasingly with traditional employment. Recognising external entrepreneurship as a significant consideration should help prevent self-employed individuals from being automatically classified as employees merely because they are subject to some degree of substantive direction, while still operating entrepreneurially in other respects.
Implications for practice
For clients, the self-employed, and legal professionals, this amendment represents an important adjustment to the assessment framework. The consideration of external entrepreneurship is expected to be particularly relevant in platform work, among freelance professionals in healthcare and the creative industries, and in other contexts where individuals carry out entrepreneurial activities alongside the specific assignment in question.
The revised approach may strengthen legal certainty, provided that the definition of external entrepreneurship is sufficiently clarified. In practice, there is a need for concrete guidance and possibly further elaboration in secondary legislation or policy documents. Relevant factors may include a client base beyond the assignment, investments made, marketing efforts, and the bearing of commercial risks.
The intended effective date for the VBAR remains 1 January 2026. Despite the amendments, this target may still be met, though the timeline is tight. The Minister expects to present the amended proposal to the House of Representatives before the summer of 2025. The debate surrounding the classification of employment relationships will therefore continue unabated.
Conclusion
The announced amendment to the VBAR proposal marks a significant development in the framework for assessing employment relationships. By incorporating external entrepreneurship into the assessment, the legislator aligns with recent case law. Although the change allows for a more tailored and nuanced approach to employment relationships, it remains crucial for both clients and self-employed individuals to critically assess their employment arrangements in light of the “new” criteria.
If you have any questions about what this development means for your organisation or your position as a self-employed professional, feel free to contact SPEE advocaten & mediation for specialised and tailored advice.