News

This morning our Labor Law team hosted a special breakfast session for our clients on the topic of “ZZP” and the turnout was overwhelming! We were pleased to welcome a diverse group of clients and relations in an informal setting at the always hospitable Golf Club Capelle.

The subject of “ZZP” was the focus of this morning, which began with a warm welcome with coffee and tea, followed by an extensive breakfast buffet. Then the breakfast session got underway, in which there was plenty of room for knowledge sharing and questions. It was an interactive and inspiring morning in which knowledge sharing and connection were central.

We thank all participants for their presence and for taking the time to attend our breakfast session on this early morning.

In zoning proceedings, it is sometimes necessary to file a request for injunctive relief with the preliminary injunction court, for example, if a zoning ordinance is published for the construction of a new apartment complex right behind your home or business. You file an appeal against the zoning plan. However, an appeal has no suspensive effect, so you fear that construction will already begin during the appeal procedure. You can then request a preliminary injunction from the preliminary injunction court to prevent construction during the appeal procedure. To obtain a preliminary injunction, there must be an urgent interest.

In a ruling on November 12, 2024, the preliminary injunction judge of the Council of State ruled that from now on it will be less likely to be ruled that there is an urgent interest when no permit application has yet been submitted. This case involved an application for injunctive relief in a zoning case.  The applicant feared that an application for an environmental permit would be filed and decided on during the appeal process, resulting in irreversible consequences. The preliminary injunction judge denied the request, alleging no urgency. 

Indeed, at the time of the hearing no permit application had yet been submitted, nor had it become apparent that the building possibilities in the zoning plan gave cause to carry out preparatory work that would actually have irreversible consequences, or at least that could not be carried out without the zoning plan. 

The preliminary relief judge then ruled that the mere statement that there is an intention to submit a permit application is insufficient to assume urgency in a request for suspension of a zoning plan. After all, in practice it appears that only in exceptional cases is a permit application actually submitted in anticipation of the irrevocability of a zoning plan. 

In practice, this means that in zoning plan cases it becomes more difficult to obtain a preliminary injunction. This seems to be possible only when a permit application has already been filed for a (building) activity. 

Do you have questions about applying for preliminary injunctions or about zoning proceedings? If so, please contact Gerard van der Wende or Fleur Huisman. 

You can find the link to the ruling here.

On November 15, 2024, the Supreme Court issued a judgment in the Didam case. In this case, the Montferland municipality wanted to sell a piece of land in Didam, which was owned by the municipality, to a real estate developer. The municipality had also been approached by another real estate entrepreneur, who was also interested in buying the piece of land. The municipality eventually sold the land to the property developer and not to the real estate entrepreneur. The real estate entrepreneur disagreed and initiated summary proceedings against the municipality and the developer. This was because he believed that all candidates should have been given a chance to buy the piece of land. 

In 2021, the Supreme Court ruled on this issue. It considered that a public body seeking to sell a piece of real estate must give everyone interested an equal opportunity to buy the property. The Supreme Court established further rules for that process, known as the “Didam Rules". 

In the follow-up case, in which the Supreme Court has now delivered its judgment, it was necessary to rule on the real estate company's claim, which argued that the purchase agreement between the municipality and the developer should be annulled and that the municipality was allowed to sell the land only if it complied with the Didam rules. The court rejected the real estate company's claim at first instance. The court, on the other hand, granted the claim and set aside the purchase agreement between the municipality and the developer and prohibited the municipality from buying the land without complying with the Didam rules. In addition, the court ordered the municipality to pay damages to the real estate company. 

The municipality and the property developer have both appealed to the Supreme Court. They are of the opinion that the Didam Rules only apply from the date of the (first) Didam judgment, that the violation of the Didam Rules can at most lead to a wrongful act on the part of the government and not to the annulment of the purchase agreement. 

Advocate General Snijders has written an opinion, advising the Supreme Court to overturn the court's ruling. 

The Supreme Court then ruled as follows:

• The Didam Rules do not apply only from the date of the (first) judgment in 2021. The Didam Rules are partly based on general principles of proper administration and there is no reason to limit their applicability until after the (first) Didam judgment. 
• A purchase agreement entered into in violation of the Didam Rules is not void or voidable. Such an agreement is and remains valid even if the municipality did not (properly) follow the Didam Rules when concluding it. 
• However, the (potential) candidate who did not get the chance to buy the plot of land may be able to claim damages from the municipality on the grounds of tort. 

The Supreme Court annulled the judgment of the Arnhem Court of Appeal and referred the case to the Court of Appeal of The Hague for further consideration and decision. 

In practice, this means the following. Even for agreements concluded before the (first) ruling in 2021, governments had to comply with the Didam rules. If a contract was nevertheless concluded without compliance with the Didam Rules, this does not immediately mean that the contract is void or voidable, but it does mean that the prospective buyer who did not get a chance to buy the piece of land can claim compensation based on a wrongful act by the municipality. 

If you have any questions following the Supreme Court ruling, please contact Gerard van der Wende and Fleur Huisman. 

On Nov. 11, 2024, The Council of State published its long-awaited opinion on the controversial VBAR bill. The identification of certain problems is justified, however, the Council doubts the added value of the bill. On the other hand, the elimination of the enforcement moratorium by the Tax Administration is a good development, according to the Council. 

The bill 

A loyal reader of our blogs is already somewhat familiar with the gist of the bill, however, repetition is the strength of the message. Briefly, it seeks to tighten the distinction between employees and the self-employed and introduces a legal presumption. Any worker earning less than 33 euros per hour will be deemed an employee.

The Council of State on the distinction between employees and self-employed workers

The Council doubts that the VBAR bill solves the problem of the tax outcomes associated with answering whether someone is an employee or a self-employed person. The underlying problem is that employed persons - if they have the choice - prefer to market themselves as self-employed, mostly because it is more financially advantageous. This bill codifies existing law, which can be quite useful, but it does not address this underlying problem. According to the Council, this would be better solved by, for example, phasing out the self-employed deduction and the SME profit exemption, and requiring self-employed people to take out disability insurance. These are precisely solutions that did not make it into the bill.

Added value of the legal presumption?

The Council is also not convinced by the legal presumption. For example, the Tax Administration may not even test the legal presumption independently, but will be dependent on the court ruling that establishes employment status. In order to make use of this, working people will therefore have to go to court, which is usually too big a step for this group. How many (supposed) workers, with an hourly wage of less than € 33, will do so is indeed doubtful.

Removal of enforcement moratorium

Whereas the VBAR bill comes under considerable fire from the Council, this does not apply to the lifting of the enforcement moratorium under the DBA Act. In principle, the Council thinks this is a good idea. Indeed, it wonders whether the VBAR law is even needed in addition to this. 

Pay pension contributions retroactively? 

In principle, not much new under the sun, except that the Council asks how the government intends to deal with pension contributions. The Inland Revenue is only going to retroactively deduct over the period that the enforcement moratorium (from Jan. 1, 2025) is lifted (unless there is malice). Whether pension funds adopt the same approach if a sham self-employed person is nevertheless a retroactive employee is nowhere apparent at present. The Council literally wonders what the pension funds will do if it is determined retroactively that a self-employed person was an employee all those years. Will those years then count toward the pension calculation? In this regard, the Pension Federation has suggested that bogus self-employed people should not be given pension entitlements for the past. That would mean that, for example, a self-employed person who has always worked in Construction and has not built up any pension of his own, would soon have to live on just an AOW benefit. You can argue that a self-employed person who really chooses entrepreneurship is just out of luck, but what about those self-employed persons who do have to work as self-employed persons because otherwise they have no income? For this reason, the Council recommends that the bill be supplemented in this regard.

As a result, do you have any questions about hiring self-employed workers? If so, please contact Dennis Oud, Tessa Sipkema, Tim van Riel or Elke Hofman-Bijvank. 

You can read the opinion of the Council of State for yourself here.

When an administrative body imposes an order under penalty or order under administrative order, the violator is given a period of time to end the violation. This is called the period of grace. Sometimes it is not possible for an offender to terminate the violation within the grace period. For example, the violator may be dependent on others to end the violation. The violator will then request the governing body to extend the beneficiary period. In some cases the administrative body will go along with this, but there are also cases where the administrative body believes that extension is not justified. 

This was the case in the judgment of the preliminary relief judge of the District Court of Northern Netherlands of October 24, 2024. In this case, the violator received an order under penalty payment because his poultry slaughterhouse did not comply with the noise regulations. The college had attached a period of grace to the order under penalty. That grace period had already been extended once, but the violator requested the college to do so again. Due to a delay in the delivery of soundproofing devices, he was unable to comply with the order imposed by the college earlier. In the meantime, however, the violator had already taken measures that had significantly reduced noise levels. Nevertheless, the college rejected the violator's request. The violator therefore filed a request for injunctive relief with the preliminary relief judge, who then had to rule on the legality of that rejection. 

The preliminary injunction judge first appoints that the following emerges from established case law of the Administrative Law Division of the Council of State: 

• The purpose of the period of enjoyment is to end the violation. It is important to note that the period of enjoyment may not be longer than necessary to end the violation. 
• The administrative body has some discretion in determining the length of the period of benefit. 
• The benefit period is not intended to give the violator the opportunity to await the outcome of objection or appeal proceedings. 

If the beneficiary period is too short to comply with the order because the violator depends (in part) on third parties to do so, the violator can request an extension of the beneficiary period, as the violator did in this case. In assessing that request, what matters is the extent to which the violator took timely steps to comply with the order. If the violator does not take steps to comply with the burden until the day before the period of benefit expires, the period of benefit is unlikely to be extended. 

In this case, the preliminary injunction judge ruled that the violator had already taken temporary measures to comply with the noise limit, in anticipation of the realization of the soundproofing facilities. The Municipal Executive has therefore provided insufficient and unsound reasons for the rejection of the violator's request, and the judge in preliminary relief proceedings therefore extends the period of beneficiary until December 6, 2024. 

Are you concerned that you cannot terminate a violation committed by you within the beneficiary period, for example because you are dependent on a supply or service from third parties, or because there is a concrete prospect of legalization, and are you wondering whether in your case the beneficiary period can be extended, or whether you should file a request for injunctive relief? If so, please contact Gerard van der Wende or with Fleur Huisman. 

Link ruling

As of 2023, there are already concrete plans to introduce an admission system for employment agencies and other companies that provide labor. What would you have to do to be admitted? Among other things, submit a Certificate of Good Conduct (VOG), transfer a security deposit of one hundred thousand euros (a lower amount applies to start-ups), show that the correct wages are paid and pay taxes. Additional requirements apply to foreign employment agencies (except for the VOG). This will all be in the Law “Admission for the Posting of Workers” (TTA Law). 

When is the new law to take effect? The plan was originally January 1, 2025, but that was postponed to January 1, 2026. Even that now appears not to be feasible, according to a letter from the minister. When then? We won't hear that again until January. Enforcement of the admission system will not take place until one year after the TTA law comes into effect. So for now, there is no need to save for that security deposit just yet. 

Read the minister's letter here. 

Questions about staffing collective agreements or the posting of workers? If so, please contact Dennis Oud, Elke Hofman-Bijvank, Tim van Riel or with Tessa Sipkema.