ACM publishes a draft version of Guidelines on Rate Agreements for Self-employed Persons
On 23 July 2019, the Netherlands Authority for Consumers and Markets (ACM) published the draft version of the Rate Agreements for Self-employed Persons Guidelines. The draft Guidelines describe the scope for self-employed persons (zzp’ers in Dutch) to collectively make agreements on minimum rates.
This concerns only self-employed persons who have the provision of services as their sole business activity. The draft Guidelines show that ACM allows certain collective agreements by this group of self-employed persons. For companies that hire self-employed persons, it is important to be aware of the most important possibilities that ACM mentions.
Self-employed persons may agree to use 16 euros as a minimum rate
The Government announced that it intends to introduce a statutory minimum rate of EUR 16 for all self-employed persons by 2021 (see ‘Minimum rate for all self-employed persons from 2021 onwards’). The aim of this is to prevent self-employed persons from being hired at too low a rate, which, among other things, leads to poverty among this group. In anticipation of this statutory minimum rate, ACM announces in its draft Guidelines that in the period before the introduction of the minimum rate (now planned for 2021) it will not impose fines on collective agreements between self-employed persons in order to apply this minimum rate of EUR 16.
Self-employed persons and clients are allowed to make collective agreements about a higher minimum
Some self-employed persons have to incur professional costs in order to be able to offer specific services, such as training or tools. These professional costs can cause the minimum rate to be too low, which in turn allows them to fall below the subsistence level as yet. According to the draft Guidelines, in that case, self-employed persons are allowed to agree on a minimum rate higher than EUR 16 with clients or their interest groups. ACM also announces that it will not impose a fine if the agreements are not in accordance with competition law after all, provided that the agreements are made openly, after a careful analysis, that the parties involved act in good faith, and that the agreements are amended if it appears that they are not in accordance with the law.
False self-employed persons are allowed to make price-fixing agreements according to ACM
According to the draft Guidelines of the ACM, price-fixing agreements between 'false' self-employed persons are permitted from the point of view of competition law. The draft Guidelines then explain what is meant by this concept, with a reference to the judgment of the European Court of Justice in the FNV Kiem case. In short, it concerns self-employed persons who find themselves in a situation similar to that of an employee. False self-employment is precisely what the government wants to tackle. The Inspectorate SZW and the Tax and Customs Administration are enforcing this (see ‘Intensive supervision of self-employed persons as of autumn 2019’). It is therefore surprising that ACM mentions this as a possibility in the draft Guidelines. Consciously working as a 'false' self-employed person or consciously working with 'false' self-employed persons entails risks.
The Rate Agreements for Self-employed Persons Guidelines is only a draft document for the time being. Parties may respond until 9 September 2019.
Jim MargrySenior Associate Attorney at law
Jim Margry, attorney at law (senior associate), is a member of the Employment & Benefits Practice Group. He has all-round experience in employment law, with a particular focus on the employment law aspects of M&A-deals, restructurings and collective dismissals, co-determination procedures, cross-border labour and employee participation structures.T: +31 20 578 56 31 M: +31 6 22 09 52 11 E: firstname.lastname@example.org