The party question: the forgotten first step in bogus self-employment cases
On 8 April 2026, ZiPconomy published a contribution by our founding partner Joost van Ladesteijn on a question that is surprisingly often skipped in bogus self-employment cases: the party question. Before a court can decide whether an agreement is an employment contract within the meaning of Article 7:610 of the Dutch Civil Code (the classification question), it must first establish between which parties an agreement exists: with the individual worker, or with the BV or partnership that was contracted.
First the party question, then the classification question
The party question precedes the classification question and has its own assessment framework. The starting point is the ABN AMRO/Malhi doctrine (Supreme Court 5 April 2002, ECLI:NL:HR:2002:AD8186): did the parties intend to bind themselves to each other? The Haviltex standard and Articles 3:33 and 3:35 of the Dutch Civil Code play a role. Legal certainty opposes a silent substitution of the contracting party, so a high threshold applies. Anyone seeking to look through the legal entity ends up with identification (vereenzelviging, Rainbow, ECLI:NL:HR:2000:AA7480): a strict test, reserved for exceptional circumstances and misuse of the separate identity.
A different question, a different framework
The classification question follows the Groen/Schoevers line, confirmed in Deliveroo (Supreme Court 24 March 2023, ECLI:NL:HR:2023:443) among others: first interpretation of the agreed rights and obligations, then classification in light of all circumstances. According to Joost, those criteria should not be used to answer the party question. Haviltex plays a role in both questions, but with a different object: in the party question it concerns the identity of the parties, in the classification question the content of the agreement. How the work is performed does not, as such, say anything about with whom the contract was concluded.
'Reality value': at most an indication of evasion of the law
The government's online assessment tool for working relationships (Webmodule Beoordeling Arbeidsrelatie) and the explanatory memorandum to the VBAR bill refer to the 'reality value' (realiteitswaarde) of a legal entity. Joost points out that this is a tax concept rather than an established civil-law concept, and that it blurs the party question and the classification question. He regards a lack of reality value at most as an indication of fraus legis: a strict exception in case of abuse, not the main rule. Where a BV or partnership has several partners, its own clients, its own capital and risks and its own market position, a contract with the individual worker is, in his view, the exception.
Practical tips
Record with whom you contract and make sure invoicing, communication and performance are consistent with that.
When engaging someone through a BV or partnership, assess the party question first and only then the classification question.
Document the independent position of the legal entity: other clients, own capital and risk, own market position.
Read more in our knowledge base on bogus self-employment. Working with self-employed professionals through a BV or partnership? Contact us; we are happy to help.
This blog provides general information and is not legal advice. For advice on a specific situation, please contact us.
