Self-employed professional in employment: avoid classification as a bogus self-employed person

A self-employed professional who works in practice like a regular employee runs the risk of being classified as a bogus self-employed person. The Tax and Customs Administration can then retroactively classify the collaboration as an employment relationship, resulting in backdated assessments of payroll taxes and social security contributions. Since January 1, 2025, active enforcement of this has resumed. You can avoid problems by using a good, tailor-made freelance agreement for each assignment and aligning your actual working method accordingly.

What is bogus self-employment?

Bogus self-employment occurs when someone works as a self-employed person (ZZP) on paper, but in fact works under the same conditions as an employee in salaried employment. The employment relationship is then in reality an employment contract, even though the parties have signed a contract for services.

What parties agree upon on paper is therefore not decisive. What counts is how the collaboration unfolds in practice. Three elements are central to this:

• Work – does the person perform the work himself, or is he free to have himself replaced?
• Wages – is there a fixed remuneration for the work?
• Authority – is there a relationship of authority, for example because the client determines how, where, and when the work is done?

If these characteristics are met, there may legally be an employment contract, regardless of the label the parties themselves attach to it.

How is it assessed whether someone is truly independent?

In the so-called Deliveroo ruling (2023), the Supreme Court clarified how to assess whether an employment relationship constitutes an employment contract. There is no single factor that is decisive in itself; the judge weighs all the circumstances of the case in conjunction with each other. Important viewpoints that play a role in this include:

• the nature and duration of the work;
• the manner in which the work and working hours are determined;
• or the work is embedded in the client's organization;
• whether the self-employed professional behaves commercially as an entrepreneur and bears entrepreneurial risk (for example, through multiple clients, own investments, and acquiring name recognition).

The more the working method resembles that of a regular employee, the greater the risk of reclassification. Therefore, it is wise to critically examine not only the contract but also daily practice.

Be careful with standard freelance agreements

There are many standard and even industry-specific model agreements in circulation, including via the Tax and Customs Administration. However, in practice, these do not always align well with your situation. The Tax and Customs Administration itself states that you may adapt models, but this adaptation requires precision: an unfortunate wording can actually undermine the intended effect.

Moreover, each assignment is assessed individually. Consequently, one assignment may constitute genuine independence, while another may involve a disguised employment relationship. For each collaboration, you must therefore determine whether a modified agreement is necessary, even though a good, comprehensive freelance agreement already takes various situations into account.

Be careful with risky clauses

Some clauses we regularly encounter in freelance agreements actually increase the risk of bogus self-employment. After all, the relationship must remain independent; stipulations that undermine that independence point towards a relationship of subordination. Consider, for example:

• clauses requiring the self-employed person to request permission in advance for vacation or days off;
• provisions whereby the self-employed person is placed under the direction or supervision of an employee;
• prohibited from working for other clients, or an obligation to be personally present at fixed times.

Even an indemnity clause through which the client attempts to recover employee insurance premiums from the self-employed professional offers no protection: such a recovery from the employee is not legally permitted. Did you draft a freelance agreement yourself? Then be sure to have it checked for legal and tax deficiencies.

Enforcement since 2025: what are the risks?

For years, the DBA Act was barely, if at all, enforced. Since January 1, 2025, that has changed: the Tax and Customs Administration is once again enforcing the rules against bogus self-employment. If an employment relationship is retroactively classified as an employment contract, this can lead to additional assessments of payroll taxes and social security contributions. These corrections can be imposed retroactively, in principle to January 1, 2025.

Enforcement is being introduced in stages. The Tax and Customs Administration has indicated that, as a rule, an initial audit begins with a business visit or interview, rather than immediately with an extensive book audit. However, please bear in mind that corrections and fines are explicitly possible in cases of intent or gross negligence. Those who know, or could have known, that an employment relationship was involved run the greatest risk. Therefore, do not wait, but ensure proper agreements and a suitable working method are in place now.

During the initial period, the tax authorities will take into account clients who can demonstrably show steps to combat bogus self-employment. This is not a free pass, but it does underscore how important it is to have your documentation in order: a suitable contract, a working method that aligns with it, and proof of the self-employed professional's entrepreneurial status.

What legislation is coming?

The rules surrounding self-employed persons are still very much in flux. The VBAR (Clarification of Assessment of Employment Relationships and Legal Presumption) legislative proposal was intended to clarify the assessment of employment relationships, but the Cabinet decided in 2026 to scrap the clarification section. Instead, work is underway on a separate Self-Employed Persons Act, which is not expected to enter into force before 2027.

What is expected to proceed is a statutory presumption of an employment contract for low hourly rates. If someone works at a rate below a certain threshold (around 38 euros per hour in the plans), they can invoke the existence of an employment contract. It is then up to the client to prove otherwise. The precise content, the exact amount, and the effective date may still change; therefore, ensure you are informed of the current state of affairs in a timely manner before drawing conclusions for your situation.

This is how you avoid requalification as a client

If you want to work safely with freelancers as an entrepreneur, pay attention to the following points:

1. Use an appropriate freelance agreement for each collaboration and carefully adapt standard templates.
2. Ensure that the actual working method aligns with the contract: no authority, fixed working hours, or mandatory attendance that indicate an employment relationship.
3. Give the self-employed professional room to act as an entrepreneur, for example by allowing substitution and not demanding exclusivity.
4. Be careful with low hourly rates: the lower the rate, the greater the chance that self-employment will be called into question.
5. Document your independence and retain proof of entrepreneurship (multiple clients, own invoices, Chamber of Commerce registration, own equipment).
6. Have doubtful cases legally reviewed before you begin.

Frequently asked questions about bogus self-employment

What are the consequences of bogus self-employment for the client?

If the Tax and Customs Administration classifies the relationship as an employment relationship, the client may face additional assessments for payroll taxes and social security contributions. Furthermore, the self-employed professional may be entitled to employee rights, such as continued payment of wages during illness and protection against dismissal.

Does a model agreement from the Tax and Customs Administration protect me fully?

Not automatically. A model agreement only provides guidance if you actually adhere to its contents and practice aligns with it. If the actual working method deviates, an employment relationship may still exist.

Does bogus self-employment also apply if the self-employed person chooses it themselves?

Yes. The wishes of the parties are not decisive. Even if the self-employed professional explicitly wishes to work independently, the relationship can be legally classified as an employment contract if the facts indicate this.

For how far back can the Tax Authorities look back at an employment relationship?

Corrections may be imposed retroactively, in principle to 1 January 2025 (the date on which active enforcement started). The exact period and conditions depend on the circumstances and the rules applicable at that time. Therefore, have your situation assessed in a timely manner.

Does the hourly rate play a role in bogus self-employment?

Increasingly often, this is the case. Under upcoming legislation, someone with a low hourly rate is expected to be in a stronger position to argue that an employment contract exists. A market-rate fee befitting genuine entrepreneurship helps mitigate that risk, but is not a guarantee in itself.

Have your freelance agreement reviewed by MKB Juristen

Do you work with freelancers or are you considering it? Have your freelance agreement drafted or reviewed by our legal experts. This way, you avoid not only reclassification as a bogus self-employed person, but also additional tax assessments and unnecessary disputes with the Tax and Customs Administration. If you have a broader question regarding your employment relationships, please check our expertise in employment law or contact us via our legal assistance.

Are you unsure about a concrete collaboration? Schedule an intake and present your situation to one of our legal experts.