Why a freelancer’s B.V. and management fees do not automatically bypass Wtta authorisation

The concept operates across three connected legal layers. 

1. The WAADI definition of labour supply 

Article 1(1)(c) WAADI defines ter beschikking stellen van arbeidskrachten as making workers available to another party for a fee, so that those workers perform work under that other party’s supervision and direction (onder diens toezicht en leiding), other than under an employment contract with that other party. 

2. The temporary agency contract (Article 7:690 BW) 

The temporary agency contract (uitzendovereenkomst) has the same structure: the worker is employed by the agency but works under the supervision and direction of a third party, the client. The legislative history of the WAADI confirms that “toezicht en leiding” in the WAADI means the same as in Article 7:690 BW. 

3. The employment contract standard (Article 7:610 BW) 

Whether there is leiding en toezicht under Article 7:690 BW must be assessed using the same standards as a “gezagsverhouding” (authority relationship) under Article 7:610 BW. In other words, the labour supply test is anchored in the ordinary employment law concept of authority. 

The WTTA does not create a new definition. It replaces the old WAADI registration with an admission system, but the substantive trigger remains ter beschikking stellen — and therefore leiding en toezicht. 

The starting point is now settled: the label the parties give to the relationship is not decisive. The court looks at the factual execution of the agreement. 

In the Deliveroo judgment, the Supreme Court confirmed that the qualification of a working relationship depends on the agreed rights and obligations and on the way those rights and obligations are actually performed in practice, not on the name the parties have chosen. The Temper judgment of the Amsterdam Court of Appeal applied the same approach: the court went step by step through the factual criteria and held that the platform relationship qualified as a temporary agency contract, precisely because the platform was closely involved in the contractual arrangement, the remuneration and the actual work. 

For a freelancer or DGA, this means the question is not “what does my contract say?” but “who actually directs the work?” 

The case law identifies a set of factual indicators. No single indicator is conclusive, but together they determine whether the hirer exercises the relevant authority. 

It is sufficient that the client has the authority to give binding instructions. It is not necessary that the client constantly supervises the worker or that instructions are given every day. 

In the Betabit/Transavia judgment, the court held that Transavia exercised leiding en toezicht because it had the authority to give binding instructions and played a steering role in the design of the work process, the working environment and the working conditions. The fact that the workers also performed parts of their tasks independently did not defeat the conclusion. 

For more highly skilled, specialised workers, the emphasis shifts. Traditional hierarchical supervision becomes less important, and the question becomes whether the hirer is authorised to structure the work process, the working environment and the working conditions. This is particularly relevant for freelancers and knowledge workers: a client need not tell a specialist how to do every task, but if the client controls where, when and within what organisational framework the work is done, that can still amount to leiding en toezicht.

Indicators of integration include: 

• working from the client’s premises or using the client’s facilities; 

• being bound by the client’s working hours, leave rules or hybrid-working policies; 

• using the client’s email address, signature or work clothing; 

• participating in the client’s teams, projects and planning; 

• reporting to a client manager for absence, transfers or training. 

In the Betabit case, these factors supported the conclusion that Transavia had leiding en toezicht over the workers. 

A crucial point for BVs, DGAs and agencies: the fact that the “uitlener” (the BV or agency) retains formal employer authority does not prevent the client from exercising leiding en toezicht. The Betabit court explicitly rejected the argument that the lender’s formal employer authority would stand in the way of the client’s supervision. If it did, the WAADI would not apply to workers who have an employment relationship with their lender — which would defeat the purpose of the WAADI and the Temporary Agency Work Directive. 

This is directly relevant to a DGA working through a personal BV: the BV may be the formal employer, but if the client directs the work, the BV can still be an uitlener under the WTTA. 

The case law also shows the outer boundary. In ECLI:NL:RBMNE:2022:3844, the court found that there was no ter beschikking stellen because the hirer did not exercise leiding en toezicht. The worker held performance interviews with the uitlener, the uitlener made the roster, the worker reported sick to the uitlener, and the worker could not contact the uitlener for help. The client had no supervisors present during the shifts. The claim under Article 8(1) WAADI therefore failed. 

The contrast with Betabit is instructive. In Betabit, the client controlled the work process and gave binding instructions; in the RBMNE case, those functions remained with the uitlener. The factual allocation of authority — not the contract type — determined the outcome.

The concept has four practical consequences. 

1. WTTA admission (from 1 January 2028) 

If a freelancer, BV or DGA works under the client’s leiding en toezicht, the entity may be making labour available and may need an NAU admission from 1 January 2028. The NAU states that a zzp’er who genuinely determines how the result is achieved has no admission obligation, but that a DGA whose client holds leiding en toezicht can be regarded as an uitlener whose Werk-BV needs an admission. 

2. Employment status and temporary agency law 

Leiding en toezicht is also central to whether someone is an employee under Article 7:610 BW or a temporary agency worker under Article 7:690 BW. The Temper judgment shows that a platform relationship presented as self-employment can be reclassified as a temporary agency contract if the factual authority structure points that way. 

3. Liability for fines and compliance 

From 2028, the Nederlandse Arbeidsinspectie will enforce the WTTA. Both an uitlener without admission and a client who uses one risk fines. A client that assumes a freelancer is outside the WTTA without checking who directs the work may therefore face enforcement risk. 

4. Contractual and financial exposure 

The Betabit case shows that the qualification can invalidate contractual clauses. Because the workers were found to be made available under the hirer’s leiding en toezicht, a non-solicitation or transfer fee clause was held void under Article 9a WAADI. The financial consequences of misclassification can therefore extend well beyond the WTTA admission itself.

For freelancers and DGAs 

1. Ask who gives binding instructions. If the client can direct how, when and where you work, the relationship may be one of leiding en toezicht, even if you are highly skilled and work autonomously on parts of the task. 

2. Check integration. Using the client’s email, signature, clothing, rosters, leave systems and team structures are factual indicators that courts weigh. 

3. Do not rely on the BV structure alone. A personal BV does not place you outside the WTTA if the client exercises leiding en toezicht; the BV can be the uitlener that needs the admission. 

4. Document genuine independence. Evidence that you determine the approach, carry your own commercial risk and are not embedded in the client’s line management supports the conclusion that the WTTA does not apply. 

For clients (opdrachtgevers) 

1. Assess the reality before 2028. Do not assume a freelancer is outside the WTTA because the contract says overeenkomst van opdracht. Ask whether your organisation gives binding instructions and controls the work process, environment and conditions. 

2. Verify the NAU register from 2028. If a supplier makes workers available under your leiding en toezicht, the supplier needs an admission, and hiring without one can lead to a fine for the hirer as well. 

3. Separate genuine contracting from disguised labour supply. If you manage a freelancer day to day, treat the relationship as a WTTA risk and seek advice before enforcement begins. 

Leiding en toezicht is not a label and not a contractual formula. It is a factual standard: who has the authority to give binding instructions, who structures the work process, the environment and the conditions, and who integrates the worker into the organisation. The Supreme Court, the Amsterdam Court of Appeal and the lower courts have all confirmed that the factual reality prevails over the name the parties give to the relationship. 

For freelancers, the concept is liberating: genuine independence falls outside the WTTA. For clients and DGAs, it is a warning: formal structures do not neutralise factual authority. The key date is 1 January 2028; the key question is who directs the work. Answer that question accurately, document the answer, and the legal consequences — WTTA admission, employment status and liability — follow from the facts.