Duty to notify for foreign contractors with effect from 1 March 2020

Are you a foreign contractor who is going to carry out work for a Dutch client in the Netherlands on a temporary basis or is having such work carried out by seconded personnel? Then the chances are that you will have to submit a notification to this effect to the Dutch government in accordance with the Dutch Terms of Employment Posted Workers in the European Union Act (Wet arbeidsvoorwaarden gedetacheerde werknemers in de EU, WagwEU).

Which contractors are under the duty to notify?

In principle, you are under the duty to notify if you are a foreign entrepreneur in one of the EU countries, Norway, Iceland, Liechtenstein or Switzerland, and you meet one of the following conditions:

1. you are a foreign employer who is temporarily bringing employees to the Netherlands to perform a service;
2. you are a foreign multinational which is temporarily seconding employees to one of your own branches in the Netherlands;
3. you are a foreign temporary employment agency that makes temporary workers available in the Netherlands;
4. you are a self-employed person, temporarily working in the Netherlands in the construction, cleaning, food industry, metal, healthcare, window cleaning, or the agricultural and horticultural sectors.

Fortunately, there are still some exceptions to this duty to notify. We will discuss them below.

Limited duty to notify / annual notification

Are you under a duty to notify? If you have a maximum of 9 employees, if your company is established within a 100-kilometre radius from the Dutch border and you carried out at least three services in the Netherlands in the preceding calendar year or you made a valid notification in the preceding calendar year, you are eligible to make a notification once a year. Additional requirements are that you must be registered in the commercial register or in a similar register in a neighbouring country.

Please note: the annual notification does not apply to companies in the construction sector and the temporary employment sector.

There is an additional requirement for self-employed persons. Annual notification is only open to them if they work in certain sectors (see: https://www.postedworkers.nl/werkgever/zelfstandigen).

No duty to notify

You are only under a duty to notify if you are a foreign company established abroad. If your company is established in the Netherlands and your employees are employed according to Dutch job contracts, notification is not necessary.

The duty to notify does not apply if your employees work in the transport sector and your business is in one of the subsectors (see https://www.postedworkers.nl/werkgever/transportsector) or if your employees work in the public administration, government services or extraterritorial organisations sectors.

Furthermore, the duty to notify does not apply if incidental work is performed in the Netherlands, for example business meetings, attending congresses, or urgent repairs etc. Please note: this list is not exhaustive, and some additional requirements apply. For example, urgent maintenance / repairs / installation are not subject to the duty to notify if you, as a foreign contractor, have also supplied the asset in question yourself.

There is no duty to notify either for ongoing (temporary) assignments that started before 1 March 2020.

Examples

The following examples serve as further clarification:

Example 1

You are a Polish company and you are going to carry out a temporary assignment in the Netherlands, for a Dutch client. You are hiring a German company to carry out part of this temporary assignment. Is there a duty to notify then? If yes, who is subject to that duty?
Yes, notification is required in this situation. The Polish company will have to give notice of its employees who will be employed in the Netherlands. The German company which is hired will also have to give notice of its employees who will be working in the Netherlands. Subsequently, the Dutch customer will have to check the Polish company's notification. And finally, the Polish company will have to check the German company's notification. This means that a company may have to give notice both as the client and as a contractor. There is only no duty to notify if your situation is one of the exceptions to the duty to notify.

Example 2

You are a Belgian company and you are temporarily seconding some Dutch employees in the Netherlands. Is there a duty to notify here?
Yes, because the Dutch workers usually work in Belgium and not in the Netherlands. So it does not matter here that they are Dutch employees. There is only no duty to notify if your situation is one of the exceptions to the duty to notify.

Example 3

You are a German company and you have a branch in the Netherlands. You are employing Dutch employees here, based on a Dutch job contract. Is there a duty to notify?
No, because the employees usually carry out their work in the Netherlands and not abroad.

How to act?

If the duty to notify applies to you, you will have to submit your notification before the work starts, via https://meldloket.postedworkers.nl/runtime/. This concerns temporary work starting on or after 1 March 2020. When notifying, you should notify:

• the company details;
• your contact person in the Netherlands (this does not apply to self-employed persons). The contact person must be a natural person who can be reached in the Netherlands by the Inspectorate SZW (Inspectie SZW);
• the identity of the person notifying;
• the identity of the person responsible for payment of salary/wage;
• the identity of the posted worker(s);
• the details of the Dutch client;
• the sector in which you will be working in the Netherlands;
• the address/place where the work will be performed;
• the expected duration of the work;
• the presence of an A1 declaration or other type of evidence that shows where the social security contributions are paid for you or your employee(s), because of the contribution for the relevant social security scheme.

Fine

If you do not comply with the duty to notify, you risk a fine. The amounts of these fines can be found in the Dutch Policy Rule on Fine Enforcement in connection with the Terms of Employment Posted Workers in the European Union Act (Beleidsregel boeteoplegging Wet arbeidsvoorwaarden gedetacheerde werknemers in de Europese Unie). No fines will be imposed until 1 September 2020.

Duty to notify by Dutch client

Not only foreign companies/contractors have a duty to notify, this duty also applies to Dutch clients. Further information can be found in our blog that we have written for Dutch clients. See "Duty to notify when awarding assignments to foreign entrepreneurs as of 1 March 2020" (Meldingsplicht bij een opdracht aan buitenlandse ondernemers per 1 maart 2020).

Do you have any questions about this subject? Then please feel free to contact Hester van Seventer in our Legal Department on telephone number: +31 (0) 544-39 33 33.