When does charging a freelancer for access to work breach Dutch law?
An intermediary deducted 3.5% from a freelancer’s pay for arranging an assignment. The Arnhem-Leeuwarden Court of Appeal held that the fee breached Dutch law. The case shows why intermediaries and marketplace operators need to look at what the fee buys and how the assignment works in practice.
Why did the court reject a fee the freelancer had agreed to?
The freelancer had agreed to a 3.5% fee, and the intermediary deducted it from the freelancer’s pay. The dispute turned on what the intermediary had done to earn that fee.
In its judgment of 28 March 2023, the Arnhem-Leeuwarden Court of Appeal examined how the work was organised. The intermediary exercised direction, and the client supervised and directed the work. The court found that the freelancer came within the protection of the Dutch law governing labour-market intermediaries, known as the Waadi. The intermediary had charged the freelancer for supplying them to the client, which Article 9 of the Waadi prohibits. The court held that the freelancer could invoke the invalidity of the fee clause.
Which fees does the Waadi prohibit?
The Waadi covers two situations that can look similar from the outside.
Article 3 of the Waadi concerns arbeidsbemiddeling, or helping a jobseeker and an employer enter into an employment contract. It prohibits charging the jobseeker for that service.
Article 9 of the Waadi concerns terbeschikkingstelling, or supplying a worker to work under another party’s supervision and direction. It prohibits charging the worker for being supplied.
In the 3.5% case, the way the assignment worked brought it within Article 9, even though the professional had agreed to work as a freelancer.
What if a website charges for access to listings or contact details?
A website that publishes vacancies and a business that actively arranges placements may look similar. The difference becomes clearer when you follow what happens after someone finds a listing.
Article 1(2) of the Waadi excludes publication through a communications medium from the definition of employment placement. The explanatory memorandum to the Waadi amendment distinguishes paid access to listings from further services such as selecting candidates and making introductions. It gives the example of a jobseeker who can see a vacancy but has to pay extra to find out the employer’s name or telephone number. In that employment-placement context, the memorandum treats the additional charge as prohibited.
How are marketplace fees handled when an operator uses Zooly?
Zooly provides the Freelance Management System. The marketplace operator runs the marketplace, where clients and freelancers can find each other and agree a price. The client and freelancer enter into the Service Agreement directly. Zooly does not decide how, when or where the freelancer carries out the work.
The freelancer’s services and the operator’s marketplace fee are invoiced separately. If the operator has a billing mandate from the freelancer, it can issue the invoice for the services on the freelancer’s behalf. The operator invoices its own marketplace fee separately to the client, and the freelancer receives the full agreed fee for the work.
That is the practical difference from the 3.5% deduction the court examined. In that case, the intermediary took its fee out of the freelancer’s pay. In the marketplace model described here, the client pays the operator’s fee separately. When assessing a particular fee under the Waadi, check who actually pays it, what service it covers and how the work is organised.
Disclaimer
The information provided in this article is for general informational and educational purposes only and does not constitute legal, tax, or employment advice. Labor and classification regulations (such as the Dutch Wet DBA and EU directives) are highly complex, fact-specific, and subject to frequent changes and changing administrative policies. Reading this content does not create an attorney-client or advisory relationship with Zooly. Before making any decisions regarding contractor engagement, compliance frameworks, or classification policies, you should always consult a qualified local employment lawyer or tax professional. Zooly accepts no liability for any actions taken or decisions made based on the information provided on our website.
Editorial Note & AI Disclosure
In compliance with Article 50 of the EU AI Act, we disclose that artificial intelligence (AI) tools were utilized to assist in compiling, legal screening, and drafting this content. However, to ensure absolute legal precision and contextual accuracy regarding compliance topics, the final text has undergone full human editorial review and rigorous manual verification by the Zooly compliance team before publication.
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