What is the DBA Act?
The DBA Act (Deregulation of Assessment of Employment Relationships) has been in effect since 2016, replacing the previous “VAR” (Declaration of Employment Relationship). Its purpose is to clarify the employment relationship between freelancers and clients, preventing freelancers from unintentionally being treated as employees and ensuring that clients do not face penalties from the tax authorities. Starting in 2025, enforcement will take place, which is why there is an increasing demand for clarity on this matter.
How will the enforcement of the DBA Act evolve until 2026?
2024
In 2024, enforcement remained limited. The Tax Authorities focused on informing clients and freelancers and only took action in cases of deliberate non-compliance. Although there has been more attention to compliance, strict enforcement will not occur until a later stage. This provides organizations with time to prepare for stricter rules.
2025
Starting in 2025, the Tax Authorities will intensify inspections. There will be more clarity regarding the criteria for self-employment, and the risk of fines and back taxes will increase for clients who do not meet the requirements. This marks the transition into a stricter enforcement phase.
2026
By 2026, enforcement will be fully implemented. Clients and freelancers will need to be fully compliant with the DBA Act. The gray area will be further reduced through clearer regulations, and sector-specific agreements may play a larger role in defining self-employment more clearly.
Important to know
The exact details of the changes in 2025 and 2026 will depend on political decisions and further evaluations of the DBA Act. We will keep a close eye on developments and continue to keep you informed.
What are the Deliveroo-criteria?
The Deliveroo ruling is a decision by the Dutch Supreme Court, which determined that Deliveroo couriers should be considered employees rather than self-employed workers. The ruling emphasized that when assessing an employment relationship, not only the contractual agreements matter but also how the work relationship is implemented in practice. Elements such as authority, the personal obligation to work, and the absence of entrepreneurial risk played a crucial role in this decision. The ruling has significant implications for platform companies and the debate on false self-employment.
The 10 key criteria (for future model agreements):
What are the clear criteria to identify disguised employment?
As of now (last updated 15-01-2024):
The only criteria currently provided are the Deliveroo criteria. While additional criteria may be introduced in the future, for now, these are the most critical factors to address. At Spargle, we ensure these criteria are thoroughly covered within our model agreements to minimize risks as much as possible. If this approach isn’t feasible, we explore alternatives such as secondment or setting up a Declarabele Uren BV (DUBV). However, the latter is not a commonly recommended option by us due to additional complexities it entails.
The Tax Authority (Belstingdienst) states that having one client isn’t necessarily false self-employment. Why is it still a criterion?
What is Spargle doing as intermediary?
Collaborating on Solutions: We act as a sparring partner to help clients and candidates find appropriate and feasible solutions within the still gray area of the DBA Act.
Who describes my work in a model agreement?
In a model agreement, the description of your work is typically provided by the client or employer in collaboration with the intermediary (such as Spargle). The model agreement outlines the nature of the work, the tasks, and responsibilities, as well as the working conditions. This description is important to ensure that the agreement aligns with the criteria set by the DBA Act and to clarify the nature of the working relationship.
It’s important to note that the agreement should always be carefully reviewed by all three parties (client, intermediary (us), and you) to ensure that it reflects the actual working situation and complies with the relevant legal requirements.
Rest assured that we at Spargle will always ensure you have the opportunity to review the model agreement before anything is finalized.
Is there any information available on what will be included in the new WVBAR law, which will replace the DBA Act starting January 1, 2026?
On November 11, the Council of State issued a negative advisory opinion on the proposed WVBAR bill. This means that Minister Van Gennip will need to return to the drawing board. In the meantime, the Tax Authorities published their decision-making framework on November 1, based on the Deliveroo ruling. This framework will serve as the basis for enforcement by the Tax Authorities starting January 1, 2025. For now, the WVBAR is not yet applicable.
Is the 70% criterion of working for the same client a knockout criterion for the DBA Act?
Essentially, it’s about entering into an assignment with a clear start, end, and a concrete deliverable result. Whether this is for 36 or 40 hours per week is secondary.
In the past, the number of hours was often included in the agreement, while the focus should have been on the deliverable result.
The 70% criterion is one of the factors considered, but if you are working on an assignment and can demonstrably show that you have no time for another assignment, this criterion will not be decisive. As is known, the overall set of facts and circumstances is taken into account, meaning a holistic approach is applied.
To what extent does having ‘multiple clients’ serve as a criterion for self-employment? And how many clients are enough?
Having multiple clients is often seen as a sign of entrepreneurship. However, the Tax Authority (Belastingdienst) has repeatedly stated that it is not problematic to work for just one large client, even if that means having only one client in a given year.
It is not necessary to have 2, 3, or 4 clients. Ultimately, it depends on the type of assignment you perform and how you behave as an entrepreneur in the economic market, i.e., meeting the entrepreneurial criteria. Of course, the specific circumstances may vary from case to case, so it’s always important to stay well-informed and review the criteria more than once a year.
To what extent is the fact that, as a freelancer (zzp’er), you are "required" to earn more than you would if employed in the same position, a criterion?
As the Deliveroo ruling indicates, freelancers should receive a “higher compensation” than they would earn in a permanent employment contract. A common rule of thumb was to double this amount. For example, if you would earn €4,000 per month in a regular job, the hourly rate for a freelance assignment would be around €8,000 per month, which translates to a guideline of €80 per hour. This calculation method was often used in the past to determine an appropriate hourly rate. It’s important to emphasize that this was just a guideline and not always applicable in every situation.
Are there conditions that determine how long you can work for one client?
The core of the Tax Authority’s assessment lies in the nature of the assignment you are performing. Two key aspects are considered:
Regarding whether conditions will be set on how long you can work for one client: at present, the duration of the collaboration itself is not a direct determining factor. The focus is primarily on whether you are operating as an independent contractor or are effectively considered an employee based on the nature of the employment relationship. However, a long-term collaboration may raise a red flag for further investigation, especially if the relationship shows characteristics of an employment contract (such as authority or structural integration).
This means that it remains crucial to properly document and execute the terms of your working relationship as agreed.
Is it useful to break a project into sub-tasks?
Yes, and no. It is about the facts and circumstances at the workplace of the end client or end customer. It’s about the practical reality, not a writing exercise. The focus is always on a project with a clear beginning and end, and concrete deliverables within a specific period. The facts and circumstances include the presence or absence of authority, the integration of tasks, and so on.
What type of project under the Wet DBA allows collaboration without detailed instructions or supervision?
What is the alternative if an assignment does not meet the requirements?
Other options, but depending on specific circumstances of the assignment whether possible are:
If none of the other options are suitable, there is no other way around it then ending the assignment (however this is not what anyone is aiming for of course).
Is there a difference if you are ZZP, or have a BV, or a VOF under the DBA Act?
The Tax Authority (Belastingdienst) looks beyond the legal form of a business when assessing the employment relationship. Whether you work from a sole proprietorship, a one-person BV, a VOF, or even a holding company with an operating company, the Tax Authority treats these structures essentially the same. The focus is on the actual working relationship, not the legal form. Even a holding company and operating company are treated by the Tax Authority (Belastingdienst) as “normal” BVs.
Is the "declarable uren BV" still a solution to avoid the zzp discussion?
The DUBV (Declarable Uren BV) is currently a solution. As an owner, you are in permanent employment with your own BV and are seconded. Employee insurance premiums are withheld and paid, you have a WAADI registration (because you meet the requirements for the provision of labor, TBA), and a G-account. This allows you to operate as a supplier and fall outside the zzp discussion.
However, the big question for the future is how sustainable the DUBV will remain when the WTTA (Wet Toelatingsstelsel Arbeidsbemiddelaars) is introduced to combat fraudulent staffing agencies. Under this law, an SNA registration is required, and a €100,000 guarantee seems to be mandatory. It remains to be seen whether every DUBV can meet these requirements. Additionally, many organizations do not consider the DUBV a suitable solution and prohibit its use.
This raises questions about the future viability of the DUBV.
What is the difference between a ZZP-er and a BV for the Tax Authority (Belastingdienst) and for the Court?
A ZZP-er with a BV is considered an entrepreneur. However, when assessing whether there is an employment relationship, the focus is on the actual working relationship within the assignment. Whether the ZZP-er has a BV or a sole proprietorship is not relevant in this assessment.
In cases where the Tax Authority (Belastingdienst) considered there to be an employment relationship (false self-employment), there have been lawsuits where the court reached a different conclusion. In such cases, the ZZP-er could demonstrate that they were operating as an entrepreneur and not as an employee. This highlights the importance of carefully assessing the actual working relationship.
What are the consequences if the Tax Authority determines that false self-employment is present, and who will they approach first?
It is important to realize that if a freelancer is classified as a false self-employed by the Tax Authority, the broker has already received a back tax assessment. The goal is to prevent brokers from facing back taxes, so freelancers do not encounter issues either.
Will fines be imposed with retroactive effect? If so, on whom?
Starting from January 1, 2025, the Tax Authority (Belastingdienst) will fully enforce false self-employment regulations. This means that clients hiring freelancers for work that should actually be performed as an employee may face back taxes and fines.
In 2025, there will be a transition period during which no penalty fines will be imposed, provided clients can demonstrate that they are taking steps to prevent false self-employment. However, the Tax Authority (Belastingdienst) may impose correction obligations and back tax assessments retroactively starting from January 1, 2025.
It is important to note that the Tax Authority (Belastingdienst) cannot impose back taxes further than January 1, 2025, unless there is intent to deceive or if a previously issued instruction has not been followed. In such cases, the back tax assessment can go back up to five years.
These rules apply to all self-employed individuals, including freelancers. Both clients and contractors need to be aware of the risks and ensure that their working relationships comply with legal requirements to avoid back taxes and fines.
The general concern is that by January 1st, the criteria may still not be fully defined, creating uncertainty and the potential risk of retroactive penalties. How is this situation possible?
How relevant are the terms of an independent professional when working through a broker, considering the terms of the end client and the Bovib model agreement?
Using one’s own terms is indeed an aspect of entrepreneurship, as it demonstrates independent work and the application of personal methods and agreements. However, the relevance of these terms depends on their applicability to the specific assignment. This must be weighed against the terms of the end client and, for example, the General Terms and Conditions for Independent Professionals as included in the Bovib model agreement.
How is the use of an employer’s email address or equipment assessed in the context of false self-employment?
The use of an employer’s email address may be necessary for carrying out a task, for example, for security and privacy reasons. While this can indicate organizational integration, it is not decisive on its own when assessing false self-employment. The same applies to using the employer’s equipment, such as a laptop.
What is the status of the WVBAR law, and how does the Tax Authority’s decision-making framework impact enforcement starting in 2025?
The WVBAR law, intended to replace the DBA Act, is still under development. The Council of State issued a negative advisory opinion on the proposed bill, meaning the Minister will need to revisit the draft. In the meantime, the Tax Authority’s decision-making framework, based on the Deliveroo ruling, will guide enforcement starting January 1, 2025. This framework will be used to assess compliance and determine whether a work relationship is considered self-employment or employment.
Does ‘embedding’ (inbedding) mean that a task belongs to a role in the organizational structure, even if the role is vacant? Can a freelancer fill this role?
Generally, a freelancer cannot be assigned to a regular position, either as a replacement or for a vacant role. What can happen is that a specific assignment is defined with a clear start and end, along with a deliverable result. In this case, the freelancer may perform certain tasks, but not the duties and responsibilities tied to the regular position.
Do multiple projects for one client count as multiple assignments?
Yes, if they are described as such in separate assignment descriptions, each with a clear start and end, and a concrete deliverable.
Can a freelancer join internal activities with colleagues? Isn’t it important for them to do so?
This is a bit of a grey area. The short answer would be: No, because this is initially where the key difference lies between internal colleagues and freelancers. A freelancer should remain independent and not be integrated into the internal sphere of a company. However, participation in activities that directly contribute to the project’s success are important and inevitable when it comes to joining for a freelancer. If you do not join those activities you might jeopardise the success of the project, which is not why you are there.
