Including the Self-Employed: Labour neutrality and specificity in a comparative study between the Dutch and Spanish social security systems

Abstract

Social security is a human right, which should mean that everyone at risk of losing their income is protected. Yet, many systems still exclude the self-employed. This article explores how the concepts of labour neutrality and labour specificity can give access to the self-employed in two contingencies (invalidity and unemployment). First, we explore labour neutrality and specificity from a theoretical perspective. Then, we compare the Dutch and Spanish systems to assess if and how these cover self-employed individuals. Lastly, we conclude with concrete proposals on how labour specificity can contain risks in a neutrally-designed system.

Introduction

Human rights, including the right to social security, adhere to the principle of universality, which essentially entails that they are rights individuals have simply because they exist, regardless of their nationality, sex, origin, colour or other status. In this vein, Article 25 of the Universal Declaration of Human Rights (UDHR) establishes that everyone has the right to a ‘standard of living adequate for the health and well-being of [themselves] and [their] family, including […] necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond [their] control.’ Much like in other human rights instruments, ¹ in fact, the words ‘worker’ and ‘employee’ are not mentioned once in the UDHR. National constitutions also do not differentiate between labour status and instead reserve the right to social security, or social protection more generally, to their citizens or residents. ²

Nevertheless, in most countries, a big part of the social security system, if not all, has traditionally excluded the self-employed from its protection. The rationale behind this exclusion tends to assume that the self-employed, as opposed to employees, are not in a vulnerable position marked by a strong counterpart (the employer), and thus can assume their own risks. This duality is very commonly represented across labour and social security systems, which are designed around the idea of a protected subordinated party, that has traditionally been limited to employees. The reality, however, is that nowadays these systems do not cover an important part of the workforce that is in a similarly vulnerable situation, the clearest example of which arguably being the solo self-employed. To put things in perspective, recent estimates calculate that roughly 38% of the self-employed in the EU do not qualify for sickness benefits, and nearly half of the female self-employed (46%) are not entitled to maternity protection. ³

These systems may also entail a transfer of risks of ‘demutualisation’, ⁴ leaving the self-employed with no alternative but either to use their savings or access social assistance protection, if eligible, to confront such risks. Instead of relying on funds at least partly financed by the interested parties, these risks are borne by the public finances. To some extent, the same problem arises when the self-employed enjoy tax reductions as a way of minimising the burden they bear.

Increasingly, Member States are trying to provide solutions to this problem by either creating specific schemes for this group or making an exception in the ‘general rules’ to grant part of the workforce access to what should be universal rights. The problem with these approaches is that national responses that aim to protect the self-employed offer mostly sticking-plaster solutions to concrete problems, often creating gaps and obstacles for the self-employed in effectively accessing the protection systems.

In light of the current context, in which over 40% of the workforce in the EU is engaged in non-standard employment, ⁵ it is high time to stop considering social security as mostly geared towards standard workers. Employment relations will continue to change in the coming years, likely becoming more flexible and with an increase in atypical work and work-status combinations. Thus, it is imperative to consider ways in which the self-employed can be included. More labour-neutral approaches to social law may offer solutions to effectively protect the workforce while not overburdening non-contributory systems.

In our article, we aim to explore whether social security schemes can be universally accessible (labour-status neutral), while remaining tailored to the specific circumstances of the self-employed (labour specificity). We do so by comparing two countries, the Netherlands and Spain. Both countries, like many others, have seen increased flexibilisation in the labour market, with the rise of atypical work including self-employment. ^{6 , 7} However, both their general approaches to social security, and the way and extent to which they have included the self-employed in the social security systems, vary drastically.

The current Dutch social security system can be described as a hybrid model, combining a set of compulsory universal schemes—providing at least a flat-rate minimum benefit—for all residents of the Netherlands (both economically active and inactive), with a separate set of compulsory schemes available only to employees. ⁸ The system consists of three schemes: National insurance schemes, workers’ insurance and social assistance. We focus on the second. Although the self-employed have access to all national insurance schemes, ⁹ access to the workers’ insurance is rather limited, as will be explained below. However, they benefit from several safety-net mechanisms that provide a minimum level of protection. These include significant fiscal advantages compared to employees ¹⁰ and access to targeted social assistance schemes, such as under the Decree on Assistance for the Self-Employed (Besluit bijstandverlening zelfstandigen, BBZ). They may also access general social assistance (bijstand) under the Participation Act (Participatiewet) and the Income Support Act for Older and Partially Disabled Former Self-Employed Persons (Inkomensvoorziening oudere en gedeeltelijk arbeidsongeschikte gewezen zelfstandigen, IOAZ), but only when renouncing their activity and status as self-employed. These advantages also result in a lower in-work poverty rate (14.9%) among self-employed workers in the Netherlands compared to other European countries, although the rate is still much higher than that of employees. ¹¹

Spain also combines elements from both Bismarckian and Beveridge models, with a mix of contributory and non-contributory schemes. ¹² Within the contributory system, two main schemes exist: the general scheme (Régimen General) for most employees, and special regulations for specific categories. The Special Scheme for Self-Employed Workers (Régimen Especial de Trabajadores Autónomos, RETA) is the specific system designed to meet the distinct needs of self-employed professionals. ¹³ In 2017 and 2018, Spain reformed its General Social Security Act (Ley General de Seguridad Social, LGSS), with a view to better aligning the protection provided under the self-employed social security scheme (RETA) with that offered to employees under the general scheme. ¹⁴ After registering under the special social security scheme for the self-employed (Articles 305 and 318 LGSS), the self-employed enjoy a rather high level of protection. This includes compulsory insurance against accidents at work and occupational diseases, sickness insurance, maternity/paternity leave, pension benefits, and, since 2019, unemployment benefits (previously, this benefit was voluntary). While the (formal and effective) access enjoyed by of self-employed workers to social protection has improved, the adequacy of social protection provided to self-employed workers is still questionable. ¹⁵

In this article, we study the extent to which the idea of labour neutrality and labour specificity are included in social security systems, if at all. In other words, we examine whether national rules governing access to social security are designed to be labour-status neutral and thus do not differentiate between labour status upon entry and how these rules may incorporate specific mechanisms to adapt social security provisions to the particular circumstances of the self-employed. The article focuses on insurance schemes, excluding social assistance benefits that are (mostly) means-tested flat-rate benefits of fixed amounts. Moreover, our analysis centres around contingencies in which the protection of the self-employed is more questionable, either because there is a bigger emphasis on the role of the employer or because the volatility of work and income may create obstacles in identifying when a contingency is really at stake. Specifically, we focus on access to protection in cases of long-term invalidity and unemployment. The former includes cases of accidents at work and occupational disease, but excludes sickness benefits, as we focus on income replacement, and the risk for self-employed here is mainly loss of manpower.

In what follows, we first explore the idea of labour neutrality and labour specificity applied to social security systems from a theoretical perspective, and as conceived in the literature. We then move to the comparative part, where we compare the Dutch and Spanish schemes. The last section concludes with a reflection.

Labour neutrality and labour specificity in social security systems

Most social security systems are designed to protect individuals against risks that jeopardise their earning capacity because of a certain incapacity to work. This protection originated in the understanding that, because of their unequal bargaining power, employees are unable to assume such risks by themselves. Characterised by a state of dependence on the employer, historically, those at the weak bargaining end have been employees who are subordinated to their control. Because of this, the bulk of social law is designed around the idea of protecting traditional employees who are otherwise in a vulnerable position. The same rationale is applied in excluding the self-employed from such protection as in principle, they enjoy the freedom to set their own working conditions and are assumed to have the capacity to absorb such risks.

Accordingly, the status of ‘employee’ is the usual entry ticket to the bulk of the social law paradise. However, the premise upon which the root of labour categorisation that entitles individuals to access social security is based does not necessarily account for the modern reality of the labour market. By protecting, at its core, the traditional employee, it creates obstacles for those in non-standard work arrangements that make up nearly half of today's workforce.

Additionally, labour categorisation fails to account for complex company structures composed of multiple subsidiaries, making it increasingly difficult to establish true control patterns and identify (bogus) self-employment. It places a burden on those wrongly categorised as self-employed or their representatives to claim misclassification, which leaves many without protection for long periods of time, even when the burden of proof has been shifted. Similarly, labour categorisation often does not account for the fact that many of the self-employed work almost side-by-side with some classified as employees, portraying similar dependency patterns. Moreover, it creates unnecessary obstacles for those combining different income sources to access their full social security rights. ¹⁶ Granted, in many jurisdictions, solutions have been implemented to cover some of these situations, such as creating a status of ‘economically dependent solo-self-employed’, recognising the primacy of the factual work relationship over the formal relationship in the law or a presumption of employment that shifts the burden of proof to the employer in cases of misclassification. Yet, as opposed to what a system that is neutral by design could offer, such approaches often only offer ex post protection while creating an additional burden, judicial or administrative, for this important group of workers in accessing social security protection. Labour categorisation in the current market is creating a need to build different safety nets for people with similar needs. Labour neutrality, on the other hand, could introduce one common net for social fundamental rights.

The idea of advocating for social security systems that are labour-neutral, meaning that they are designed to cover the workforce regardless of their status, has been discussed already in the literature. In 1999, Schoukens referred to the necessity of having social security systems designed to protect people, irrespective of their labour status. ¹⁷ Whereas the design would be neutral, the specific rules to apply in order to access the benefits may include variations in relation to the professional group (labour specificity). A couple of years later, Supiot ¹⁸ suggested creating circles of social protection consisting of a first universal circle, a circle based on non-professional work, a third circle applicable to professional occupations and a last circle pertaining only to subordinated employees. Other less ambitious proposals have instead suggested introducing minimum requirements into all personal work contracts for services undertaken by the economically dependent. ¹⁹ This exercise would also require the identification of basic social rights that apply to everyone (labour neutral), regardless of their status, and later tailoring this protection according to need, from lower to higher (labour specificity). In the realm of labour law, others have consistently advocated for systems free of labour categorisation that abandon binary approaches. These authors have studied the commonalities shared by all work to argue that these should give rise to universal rights, irrespective of status. ²⁰ Others have added that the introduction of labour neutrality may facilitate free movement and, concretely, social security coordination in the context of the EU. Strban has argued that it would be beneficial to explore the idea of ‘work neutral’ criteria for the purpose of addressing the obstacles that arise from the delineation of work. ²¹ According to him, a labour-neutral approach would reduce the number of instances in which the labour status is the determinant legal consequence of not having a right to social security. A more neutral formulation of provisions under the coordination rules for social security may also bring some fairness where one combines simultaneous activities, and one must prevail over the other (Article 13 Regulation 883/2004). ²²

The labour-neutral approach is already incorporated into instruments like the Recommendation on access to social protection. ²³ The Recommendation suggests that the basic rules of social protection are to a large extent neutral, even if at a later stage the application of these rules may be modified to incorporate labour specific needs. ²⁴ This idea is spelt out in paragraph 5:

‘While it is acknowledged that different rules could be applicable to workers and the self-employed, the principles of formal coverage, effective coverage, adequacy and transparency defined in this Recommendation apply to all workers and to the self-employed.’

Following this, one can argue that the distinction between basic rules that have to be neutral with regard to the form of labour application, and rules that may be adapted to the specific labour form, is an essential principle guiding many provisions in the Recommendation.

Increasingly, thus, authors have supported the simplification of labour-based rules and toyed with the idea of labour neutrality as a way of bringing some minimum level of protection to everyone who works. ²⁵ The essence of labour neutrality, in its various possible forms, is to detach basic rights and access to coverage from existing status, which no longer represents what it once did. Accordingly, the rights provided in social security would act as one common safety net for everyone who is active and thus may be protected against labour-related risks. The premise of such a proposal is to get rid of the different status-dependent boxes under which one may be entitled to protection (and the possible bridges between them) and assume that everyone who is labour-active may suffer the risk, and thus will need the protection offered by social security. This does not mean that such a system should be blind to the intrinsic differences between those who work dependently and those who do not. It is essential to recognise that genuine self-employed workers operate under conditions that differ fundamentally from those of employees, and as a result, the way in which they work or how they are exposed to social risks is distinct. This includes factors such as income volatility, procedures for declaring business cessation, self-regulation regarding occupational safety, autonomy in determining working hours, and the potential to generate income without needing their own labour. These specific characteristics must be taken into account when designing social security protections. This layer of differentiation is referred to as ‘labour specificity.’ Accordingly, based on the specific characteristics, different categories of worker may have to comply with different conditions or requirements (such as the way of reporting income). Essentially, this means that the fundamental rules of social security are universal, but this does not exclude making certain more concrete aspects subject to labour specificity.

Labour neutrality is not as far-fetched as one may think. In fact, it is already seen in (parts of) some systems. For example, in Denmark, the unemployment scheme was revised in 2018 to tackle obstacles to the protection and coverage of the self-employed and various atypical workers (principally part-time workers). This way, unemployment is defined in relation to activities and not classification (self-employed vs. employee), and entitlement conditions are defined in terms of income rather than work activities. ²⁶ In the next section, we discuss the extent to which the Dutch and Spanish rules provide for neutral and specific rules.

Comparison

In this section, we compare the invalidity schemes, including those covering accidents at work and occupational diseases, and the unemployment schemes applicable to the self-employed in the Netherlands and Spain. In so doing, we will investigate whether the respective national laws contain rules which are neutral or specific in respect of labour status. Subsequently, we will explore how the principles of labour neutrality and specificity can be used to enhance formal, effective and adequate access to social security schemes for self-employed individuals.

Invalidity

Invalidity schemes accommodate a long-term full or reduced capacity to work, allowing beneficiaries to combine partial benefits with reduced income/working time. ²⁷ Accordingly, the obstacle for the self-employed is to prove that the reduced income is due to the incapacity to work and not the economic state of their business venture. Additionally, the calculation of the reduction of work hours and wages is challenging in the case of self-employment. ²⁸

The Netherlands

In the Netherlands, the long-term disability scheme (Wet werk en inkomen naar arbeidsvermogen, WIA) is primarily designed for employees, but extends to some self-employed individuals under specific conditions outlined in Articles 8 and 9 WIA. Until 2004, the Invalidity Insurance for Self-Employed Persons Act (Wet arbeidsongeschiktheidsverzekering zelfstandigen, WAZ) provided benefits to self-employed individuals experiencing long-term incapacity to work, offering 70% of their profit based on the previous year or the average of the past three tax years, capped at 70% of the statutory minimum wage. However, the WAZ was abolished in 2004, leaving self-employed individuals to rely on private disability insurance (Arbeidsongeschiktheidsverzekering, AOV), which is voluntary. The abolition of the Act was motivated by the high premiums paid by the self-employed and the government's belief that private insurance companies could offer a more attractive alternative. ²⁹

Recognising the need for better protection for self-employed workers, the Dutch government is preparing to (re-)introduce mandatory disability insurance. The proposed Basic Insurance against Incapacity for Work for the Self-employed Act (Wet Basisverzekering Arbeidsongeschiktheid Zelfstandigen, BAZ) aims to address these gaps. Under the BAZ, self-employed individuals will be entitled to disability benefits if they can no longer earn the minimum wage due to long-term illness. ³⁰

Current system: WIA

The WIA, which refers to the personal scope of the Sickness Benefits Act (Ziektewet, ZW), mainly focuses on employees, ³¹ but Articles 4 and 5 ZW and Articles 8 and 9 WIA broaden its personal scope to include certain types of workers who do not have an employment contract but should be considered as such, like mediators, home workers or artists. ³²

Additionally, Articles 18–21a WIA regulate voluntary insurance, allowing those whose compulsory insurance has ended to continue coverage if the interruption is short or they are available for the labour market. This provision also extends to individuals transitioning from employment to full-time self-employment after at least one year of compulsory insurance, which excludes (newly) self-employed persons without previous insurance, as well as those who combine part-time employment with self-employment.

Under the Dutch WIA, the level of invalidity benefits depends on the degree and permanence of incapacity. The Return-to-Work Scheme for the Partially Disabled (Werkhervatting Gedeeltelijk Arbeidsgeschikten, WGA) applies to individuals who are at least 35% incapacitated, including those who are 80% to 100% incapacitated with the prospect of recovery. The key condition is that the incapacity is not permanent. The WGA wage-related benefit equals 75% of the worker’s previous wage for the first two months and 70% thereafter, payable for three to 24 months. Those who are fully and permanently incapacitated receive benefits under the Income Provision Scheme for Fully Disabled Persons (Inkomensvoorziening Volledig Arbeidsongeschikten, IVA), amounting to 75% of their previous wage (up to the statutory cap under the Social Insurance Financing Act, Wfsv).

In the Netherlands, there is no specific scheme for income risks associated with accidents at work and occupational diseases, neither for employees nor for self-employed individuals. These risks are covered by general sickness insurance (benefits in kind), insurance against incapacity to work (invalidity). Employees are further protected by the employer's civil liability under Article 7:658 BW. Dependent self-employed workers can, under Article 7:658(4) BW, claim compensation if they work under conditions comparable to those of employees, as confirmed in the Davelaar/Allspan ³³ case. The Supreme Court held that this protection applies if the person performs work on the principal's premises and depends on the principal for workplace safety. If these conditions are not met, Article 7:406(2) BW may still provide protection if the work involves exceptional risks beyond normal business hazards. ³⁴

Future Scheme for Self-Employed? Basic Insurance against Incapacity for Work for the Self-employed Act (Wet Basisverzekering Arbeidsongeschiktheid Zelfstandigen)

A first draft of the bill to introduce compulsory disability insurance for the self-employed was presented in 2024 and, following criticism from individuals, companies and public administration, an amended version was submitted to the Council of State for review in September 2025. ³⁵ The mandatory insurance (until retirement) should better protect self-employed entrepreneurs in the case of illness and disability. ³⁶ Once this bill becomes a statutory law, the Dutch disability scheme will become labour-neutral, as all workers will have to obtain insurance. The BAZ aims to provide a robust, transparent and sustainable disability insurance framework for self-employed individuals, ensuring both financial protection and flexibility through the option to maintain or choose private insurance.

All self-employed individuals who report ‘profits from business’ for income tax purposes will have to participate in the new insurance scheme. Self-employed individuals will become eligible for disability benefits after a two-year waiting period due to illness. This rule, following the latest proposed amendment, aligns with the waiting period for employees, who, during this period, continue to receive wage payments from their employers. Eligibility for the benefit is determined by the individual's inability to earn the minimum wage due to illness. The benefit amount is set at 70% of the profit before the onset of incapacity, capped at the minimum wage. The benefit continues until the recipient reaches the state pension age. Self-employed individuals will pay approximately 5.4% of their business profits as premiums. The maximum premium is about €171 per month; with a lower profit, the premium to be paid per month will also be less. These premiums are tax-deductible. ³⁷

Self-employed individuals have the option to choose private insurance, provided it meets specific conditions, namely, that the benefit amount is not lower than that of the public insurance, the premium must be at least equal to that of the public insurance and the coverage must extend until the state pension age. This constitutes a labour-specific feature, as it is not available to employees.

For the moment, private disability insurance (AOV) exists, but it requires the self-employed to go through a medical acceptance procedure. Depending on the outcome, the insurer decides if the person is eligible and, if so, under what conditions. ³⁸ However, around three-quarters of self-employed workers do not take out private insurance because the premiums are too high, or because pre-existing medical conditions, medical history or age lead to rejection by insurers. ³⁹

Spain

The contributory long-term incapacity pension scheme in Spain, governed by Articles 193–200 General Social Security Act (Ley General de Seguridad Social, LGSS), covers self-employed individuals for total and absolute incapacity (including accidents at work and occupational diseases), but not for partial incapacity unless it results from accidents at work or occupational diseases (Article 318(c) LGSS). Since 2019, self-employed workers in Spain have been compulsorily covered against accidents at work and occupational diseases under Articles 316 and 317 LGSS. Before 2019, this coverage was voluntary. ⁴⁰ Voluntary coverage for partial permanent incapacity remains available under Article 316 LGSS, but this is limited to compensation for the loss of wages due to permanent incapacity resulting from accidents at work and occupational diseases, as detailed in Article 193 LGSS.

The assessment of incapacity is carried out by the National Institute of Social Security (Article 200 LGSS), which is responsible for determining permanent disability status and granting the corresponding financial benefits. This process ensures an objective evaluation while safeguarding against fraud. Article 316(2) LGSS defines occupational accidents as those occurring directly and immediately as a consequence of work. For economically dependent self-employed workers (TRADE), occupational accidents include all physical injuries suffered during or resulting from work (Article 317 LGSS). Unlike salaried employees and TRADE, who benefit from a presumption of work-related injuries occurring during working hours and at the workplace (Article 156.3 LGSS and Article 317 LGSS), self-employed workers must provide evidence of the causal relationship between their injuries and their work (argumentum a contrario Article 156. 3 LGSS and Article 3.2. Royal decree 1273/2003). ⁴¹

Benefits are calculated on the regulatory base (RB) ⁴² —the average of contribution bases over a specified reference period. ⁴³ For total permanent disability, the benefit equals 55% of the RB or, alternatively, an indemnity of 40 monthly payments. Absolute permanent disability entitles beneficiaries to 100% of the RB, while those with severe disability also get 100% of the RB. In cases of occupational accidents or diseases, benefits are payable at 75% of the RB ⁴⁴ from the day following start of the medical leave (Article 11(b) Royal Decree 1273/2003).

Comparison and Analysis

In the Netherlands, the current system for invalidity is primarily designed for employees and grants only limited access to self-employed individuals. A voluntary opt-in is possible, but only for those who were previously insured under the employee scheme, thereby excluding (newly) self-employed persons who were not previously insured. Consequently, most self-employed workers must rely on private disability insurance, which is voluntary and expensive. This restricted personal scope raises questions about the rationale for excluding large groups of self-employed individuals, and as to whether the existing entitlement conditions and benefit calculations adequately address the risks specifically affecting them, particularly income volatility and irregular contribution capacity. Accidents at work and occupational diseases are not covered by a separate scheme, but are included in the invalidity scheme. For dependent solo self-employed workers, limited protection may also be derived from Article 7:658(4) BW, which extends employer-like liability to principals who engage individuals to perform work for them without an employment contract, provided these individuals work under similar conditions of dependency. The proposed legislation will extend compulsory coverage to all self-employed workers, thus making the Dutch invalidity system formally labour-neutral after the initial period, which only covers employees (thus labour categorical). As such, whereas the new bill establishes a labour-neutral scheme, the existence of the initial two-year waiting period during which self-employed persons are not covered by any compulsory sickness benefit ⁴⁵ still indicates that there is a gap in the Netherlands compared with Spain, where self-employed workers receive compulsory protection during the sickness period preceding invalidity.

In contrast, Spain already offers a more labour-neutral approach. Self-employed workers are mandatorily included in the contributory scheme for total and absolute incapacity and have access to voluntary coverage for partial incapacity. Since 2019, insurance against occupational accidents and diseases has been compulsory for self-employed workers, integrating them more fully into the same framework as employees. Nonetheless, some distinctions persist: partial incapacity is only covered when resulting from occupational causes, and the definition of a work accident is stricter for self-employed persons, who must prove a direct and immediate causal link between the injury and their professional activity. Still, the self-employed enjoy a robust safety net in respect of invalidity and occupational accidents and illnesses.

The benefit structure in Spain is generally less generous at the lower end, but more consistent overall, based on the regulatory base (RB) and capped by statutory limits: 55% of the RB for total incapacity, 100% for absolute incapacity, 100% for severe disability, and 75% of the RB for occupational accidents or disease. In the Netherlands, the benefit replacement rate is around 70% to 75% of previous earnings, and the proposed bill foresees a benefit amounting to 70% of the profits earned before incapacity.

There is little reason to exclude the self-employed from accessing invalidity benefits, as these benefits can be structured similarly to those of employees and they entail a loss of income for both. After all, determining when a working individual, whether self-employed or not, is incapacitated is rather straightforward. Should specificity be necessary in this case, one could take inspiration from the Dutch government's proposed condition, namely, that the self-employed are unable to earn more than the statutory minimum wage in order to access invalidity benefits. This condition would serve to ensure that if the business can operate successfully without the direct involvement of the incapacitated self-employed, the invalidity benefit will not be accessed.

This comparison illustrates how the Netherlands has been reluctant to introduce a mandatory invalidity scheme for the self-employed, partly linked to cost considerations, the risk of excessively high premiums and the important role that private entities play in the organisation of the protection of self-employed workers. This was also reflected during the public consultation on the new bill. In contrast, little resistance was encountered in Spain when extending coverage to self-employed workers, as they are already compulsorily insured under all income replacement schemes and pay contributions for each of them based on their income.

Unemployment

In some countries the belief exists that the self-employed should not be insured against unemployment since they inherently accept this entrepreneurial risk when becoming self-employed. Accordingly, if the market declines, they bear the loss, not society. In addition, it might be difficult for the self-employed to prove when exactly the lack of work is not due to an unwillingness to work, particularly in situations of partial unemployment.

However, some nations provide unemployment insurance to the self-employed to prevent excessive claims on social assistance, and to offer protection if their businesses fail. This encourages entrepreneurial risk-taking by guaranteeing some protection if businesses must close due to uncontrollable factors. Despite this, such schemes may need to be tailored to particular situations (labour specificity), since current rules are based on employer-employee dynamics, such as prior work, wages as a basis for benefit calculation, and involuntary dismissal criteria. ⁴⁶

The Netherlands

Obtaining unemployment benefits is particularly challenging for self-employed workers in the Netherlands. The Unemployment Benefits Act (werkloosheidswet, WW) governs the unemployment scheme, primarily designed for employees. However, specific extensions in the law provide limited eligibility for certain types of self-employed individuals under Articles 4, 5, and 8 WW. The personal scope of these Articles is almost identical to the WIA (see 3.1.1.). Additionally, Article 8(3) WW extends the personal scope by allowing previously employed individuals who become self-employed to regain their employee status if they cease their self-employed activity within the first 1.5 years. Finally, Article 77a sub. 1 WW supports unemployed individuals who wish to start their own businesses as self-employed. ⁴⁷ During this six-month start-up phase, such individuals continue to receive benefits and are legally considered to be and remain employees. ⁴⁸

Beyond the WW, there is no specific statutory scheme for self-employed workers facing unemployment. Even private insurance options do not cover this risk. For individuals insured under Articles 4, 5 and 8 WW, the same entitlement conditions apply as for employees. Accordingly, an individual must be unemployed, available for work, satisfy the conditions on work history, and there must be no grounds for exclusion. ⁴⁹ During the first two months of full unemployment, the benefit level is 75% of the daily wage, which then decreases to 70%.

As a last safety net, self-employed workers can either benefit from the non-contributory income scheme under the Decree on Social Assistance for the Self-Employed (Besluit bijstandverlening zelfstandigen, Bbz) and for older self-employed, the Income Support Act for Older and Partially Disabled Former Self-Employed Persons (Inkomensvoorziening oudere en gedeeltelijk arbeidsongeschikte gewezen zelfstandigen, IOAZ), which are universal, residence-based and tax-financed schemes. The Bbz provides a legal basis for supporting self-employed individuals in financial distress, aiming to secure a minimum standard of living while enabling business continuity through income support or loans. It applies to residents of the Netherlands aged 18 and above who have not yet reached retirement age and who work at least 1,225 hours annually in a viable business or profession. Assistance is subject to a means test, excluding business-related assets, and is unavailable if personal equity exceeds €243,892. The level and form of the benefit vary depending on the applicant's situation and the viability of the business. Benefits are usually granted as interest-free loans or income supplements up to the social assistance level for a period of up to 12 months, extendable to 24 months in cases of temporary, external hardship.

The IOAZ scheme applies to elderly former self-employed individuals who are at least 55 years old but have not yet reached the statutory retirement age. This legal framework is designed to provide income support to those who have discontinued their business activities due to insufficient earnings and who no longer have adequate resources to sustain themselves at the social minimum level. This scheme is specifically designed for self-employed workers. ⁵⁰

Spain

In Spain, a contributory unemployment protection scheme specifically for self-employed workers was introduced in 2010 and became compulsory in January 2019. Governed by Articles 327 to 350 of Royal Decree 8/2015, the scheme provides coverage for the cessation of activity, whether final or temporary, partial or total, as defined in Article 327(1) of the LGSS. ⁵¹

According to Article 330 LGSS, to qualify for the cessation of activity benefit, a claimant must meet several labour-specific conditions. Firstly, the claimant must be registered in the RETA. This ensures that the individual is formally recognised as self-employed within the social security system. Secondly, the claimant must have made at least 12 months of contributions within the last 48 months. Thirdly, the claimant must be in a situation of cessation of activity. Fourthly, the claimant must be below the retirement age. Finally, the claimant must have paid their social security contributions, including those for any employees they might have.

The reasons justifying the cessation of activity are clearly defined within Article 311 (1) LGSS. These include economic, technical, productive or organisational reasons (a); force majeure (b); loss of the administrative licence (c); gender-based or sexual violence (d); divorce or marital separation (e). The first two merit further discussion. If a self-employed person cannot continue their activity for economic, technical, productive, or organisational reasons, several conditions under Article 331(1)(a) LGSS must be met. These include: income losses exceeding 10%, debt executions covering at least 30% of annual revenue, bankruptcy, or a 60% reduction in employee hours combined with a 75% reduction in income below the minimum wage. For those without employees, cessation is also justified if debts exceed 150% of income and revenue has dropped by 75%, without requiring business closure. Additionally, Article 331(1)(b) LGSS also recognises force majeure as a valid reason for cessation when external events, such as emergencies, cause a 75% drop in activity and income below the legal minimum. Article 331(2) LGSS excludes voluntary cessation of activity as a valid reason for benefits. The same can be said for the self-employed who resume work with the same client within a year of the date the benefit ended, and who must also repay any benefits received, see Article 331(2)(b) LGSS.

The benefits for cessation of activity are calculated based on the claimant's monthly contributions. The regulatory base is the average of the contribution bases for the 12 months preceding the cessation of activity, as outlined in Article 339(1) LGSS. The amount of the benefit, throughout the period of entitlement, shall be determined by applying 70% to the regulatory base, except in the cases provided for in sections 4 and 5 of Article 331(1.a) LGSS and in cases of partial temporary suspension due to force majeure, where the amount of the benefit shall be 50% (see Article 339 (2) LGSS). The maximum benefit amount is capped at 175% of the public indicator of multiple effects income (IPREM, Spanish benchmark index), with higher caps for individuals with dependent children. The minimum benefit amount is set at 107% or 80% of the IPREM, depending on whether the claimant has dependent children (see Article 339(3) LGSS).

The duration of the financial benefit is based on the contribution periods within the 48 months before the cessation of activity, with at least 12 months within the 24 months immediately preceding the cessation. Article 338 LGSS sets a scale linking longer contribution histories to longer benefit periods. ⁵²

Comparison and Analysis

In the Netherlands, unemployment benefits are governed by the WW, which primarily covers employees, making access for self-employed workers very limited. Self-employed persons fall largely outside the scope of the statutory unemployment insurance system, with only a few exceptions. Unfortunately, the Dutch government has no plans to reform the unemployment scheme for self-employed workers as planned for the invalidity benefit. In the absence of contributory protection, self-employed individuals must rely on tax-financed social assistance schemes, notably the Bbz and the IOAZ. Both are residence-based, non-contributory schemes aimed at preventing poverty rather than maintaining previous living standards. Under the Bbz, benefits are granted either as interest-free loans or as income supplements to reach the general social assistance norm. The IOAZ targets older self-employed persons aged 55 or above who have ceased their business activities due to insufficient income. It provides an income top-up to the same subsistence level as the general social assistance scheme until the recipient reaches the statutory retirement age. Both schemes thus function as safety nets, not as genuine unemployment insurance, and their benefits are flat-rate and not earnings-related.

Spain exemplifies a contrasting approach to unemployment benefits for self-employed workers. Since 2019, self-employed workers have been compulsorily covered against the cessation of activity, reflecting a broader inclusion within the social security framework. Spain is one of the few countries ⁵³ in the EU that has introduced such a scheme for self-employed workers. This demonstrates that while the scheme requires specific adaptations for the self-employed, a more universal approach is feasible and can be effectively developed. The particularity of the cessation of activity benefit for the self-employed in Spain lies in its tailored approach (labour specificity) to the needs and way of working of self-employed workers. Unlike traditional unemployment schemes that primarily address the end of the employee-employer relationships, this benefit considers the specific economic circumstances of the self-employed, as well as the economic volatility within a particular sector.

From a comparative perspective, the Spanish scheme provides significantly higher and more predictable income protection, reflecting an insurance-based design that links entitlement to prior contributions. In contrast, the Dutch Bbz and IOAZ ensure only minimum income protection, detached from previous earnings and subject to strict means testing. While the Netherlands relies on a social assistance model rooted in residual welfare principles, Spain's system represents a more labour-neutral and inclusive approach, integrating self-employed workers into the general framework of contributory unemployment protection.

Reflection

A comparison of the two countries in some of the more contentious areas of social security protection for the self-employed shows that they adopt largely opposing approaches to this group of workers.

On the one hand, in the Netherlands the self-employed seldom have formal access to benefits concerning invalidity, occupational disease and accidents or unemployment. Only a limited few self-employed may gain limited access to some of these benefits, often based on their economic dependency. In this vein, it is clear that the Netherlands takes a rather cautious approach to protecting the self-employed in their social security schemes. Part of this rationale lies with the idea that becoming self-employed is a free choice, which is questionable in itself, and that part of this free choice is assuming certain entrepreneurial risks, including the risk of becoming ill or losing business. On the other side of the same coin is the argument that the nature of self-employment does not allow for the identification of when these contingencies occur, and that as such, this creates the threat of the self-employed misreporting such contingencies when they do not occur in reality. While one can understand the risk-based approach, this fails to recognise that such an approach places the burden elsewhere. Accordingly, the result of excluding the self-employed is that in the case of the risks discussed in this article, they are left unprotected, relying on their private arrangements or on non-contributory benefits (such as IOAZ and BBZ). The IOAZ and BBZ schemes are specifically designed for self-employed workers, but only secure a minimum level of social protection. In addition, tax advantages for the self-employed may help bear certain entrepreneurial risks. Although these efforts may empower the self-employed (partly explaining the comparatively low in-work poverty levels), they place the burden on the public finances. However, recent developments suggest that the Netherlands is beginning to acknowledge these shortcomings—at least in the area of invalidity benefits. The introduction of the BAZ signals an initial move toward a more labour-neutral/labour-specific approach.

On the other hand, Spain has almost entirely incorporated the self-employed into their social security system. This is also the case, for the most part, in respect of the contingencies discussed above. Although with some restrictive entitlement conditions, the self-employed enjoy almost full access to social security benefits. In this sense, Spain can be said to have adopted a far more universal approach, increasingly implementing the idea of labour neutrality in its different schemes. Now, this is not to say that in Spain there is no differentiation on the basis of status. In fact, a whole section in the LGSS, the RETA, is dedicated to tailoring the schemes to the self-employed. In this section, we find various elements of labour specificity that facilitate both the tailoring of benefits to the realities and needs of the self-employed and the reduction of the risk of abuses happening as a consequence of fraud. In this sense, while the self-employed have, in most cases, access to the benefit, additional or specific requirements apply to them. This is the case, for example, as regards the requirement for the self-employed to provide proof of causation between an illness or accident and work, whereas in the case of employees there is a clear presumption in this respect, or setting specific income thresholds below which the earnings/working hours of a self-employed worker must be in order to claim unemployment benefits.

Yet, while their approaches are radically different, both countries share a minimum understanding that at least some, if not all, of the self-employed deserve a higher level of protection: the dependent or solo self-employed. This is illustrative of the fact that even the more cautious systems recognise that not all the self-employed have the capacity to absorb all risks and deal with the loss of income by themselves. While this may currently only be a limited to a small group of self-employed workers, it may act as a catalyst for the implementation of more labour-neutral systems in the future, which can still incorporate a more risk-based approach by tailoring schemes to the essence of self-employment through labour specificity in respect of access to benefits.

The introduction of a contributory social security system for self-employed workers for invalidity - including accidents at work and occupational diseases - and unemployment is feasible, thereby granting them formal access to these protections. However, the specific nature of self-employment requires tailored conditions (labour specificity). In turn, what labour specificity requires is a degree of objective externality to contain the risks. We see this, for instance, in administrative and judicial Acts that list objective reasons for force majeure or provide for threshold limits in respect of the minimum wage.

In the two contingencies discussed, we find concrete examples of this tailoring from which systems moving toward a more neutral approach could learn. Regarding invalidity benefits, a waiting period could help prevent abuse. However, the two-year waiting period in the Netherlands (which is labour-neutral) appears excessive, particularly in the absence of sickness benefit coverage in the interim (which employees do enjoy). Additionally, it is essential to provide an objective assessment to determine an individual's genuine inability to work, as it could be a minimum income threshold (such as a minimum wage), along with the evaluation of incapacity by an independent public authority. The evaluation may also bring some externality to benefits for accidents at work and occupational diseases. On top of an independent authority, what may also limit risks in this contingency is the requirement of a causal link or at least correlation between work and the accident or illness. This could limit misreporting emanating from the greater control that the self-employed have over their working hours compared to traditional workers. Lastly, regarding unemployment schemes, arguably the more contentious contingency, eligibility criteria for the self-employed could reflect on the realities of self-employment and limit access to such benefits to objectively measurable situations such as economic distress (evidence by a drop in income or working hours) or bankruptcy. This could also be externalised by involving an independent body that could audit the status of a business. Other elements, such contracts for services, may also provide objectivity in proving the occurrence of a risk, by showcasing a significant reduction of the working time in comparison to previous periods. Finally, for all income-replacement schemes, the level of benefits could be linked to a defined percentage of the contributions paid over a fixed reference period based on annual income, ensuring stability and avoiding distortions from fluctuating monthly earnings.

All in all, this article, particularly the Spanish example, shows that a more universal, labour-neutral approach is possible and, how labour specificity may allow for the human rights approach to meet the risk-based approach by tailoring the benefits to the specific conditions of the self-employed. This facilitates the controlling, to a large extent, of even the ‘riskiest’ of contingencies while not depriving part of the workforce from their right to social security. Labour neutrality and labour specificity could thus be a way of including the self-employed.