When is someone to be considered self-employed, and when to be considered an employee?

The Proposal aims to clarify by introducing a legal presumption whereby workers with an hourly rate of less than EUR 32.24 are deemed to perform their work based on an employment contract. The worker is, therefore, entitled to labour law protection and accrues a compulsory pension. The employer may overcome the presumption by presenting evidence to prove the absence of an employment relationship.

Moreover, according to the legislative Proposal, work is performed 'in the service of an employer' if it is performed under the employer's direction, or the work or the worker is included in the employer's organisation without assuming an own risk.

The Explanatory Memorandum also examines the case law on the qualification of legal relationships and the evaluation criteria adopted.

VNO-NCW and MKB-Nederland contributed to the bill's internet consultation, highlighting concerns about the Proposal's potential impact on labour market uncertainty. 

In particular, while appreciating the legal presumption introduced, which may help counter abuse and untruthful contractual arrangements, the employers' associations expressed reservations about the criterion of the employee's inclusion in the company organisation, leading to much discussion and uncertainty in practice.