Dutch law and the human being of the twenty-first century
1. The assumption underlying our law
The safest profession of the past two decades is now the most exposed. Anyone who became a developer ten years ago was buying existential security with that choice. That same profession has meanwhile become the first large-scale example of cognitive work being taken over by machines. That is striking, but it is not the most interesting part. The most interesting part is what it exposes about the architecture of our law.
Dutch law, after all, barely recognises persons. It recognises functions. The legal position of a human being — as employee, as foreign national, as benefit claimant — almost always hangs on the function he performs, on the labour he supplies, on the wage that labour earns. That is defensible as long as functions are stable enough to build a life on. It is precisely that assumption that is now in question.
This contribution explores four questions that follow from this and that will shape Dutch practice over the coming decade. What happens, legally, when the function evaporates? What legal position does the person hold who assembles his own career rather than practising a profession? Is there such a thing as income without a function? And does our law protect, alongside the human being’s body and data, also his capacity to think for himself?
2. How deeply the function is embedded in the law
Employment law. Article 7:610 BW ties three elements together: labour, wage and “in the service of”. The object of the contract is the labour, not the person; the relationship of authority presupposes that someone else determines what you do.
Dismissal law. In the case of dismissal on business-economic grounds (art. 7:669(3)(a) BW), the reflection principle (afspiegelingsbeginsel) counts per age group within a category of interchangeable functions (art. 11 Dismissal Regulation). When two people are interchangeable is set out in article 13 of the Dismissal Regulation: if their functions are comparable in content, required knowledge, skills and competencies and in nature, and equivalent in level and remuneration. The Supreme Court has held that enumeration to be exhaustive. The law therefore counts people as specimens of a job class — not as persons who are comparable.
Migration law. Here the codification is at its sharpest. The highly skilled migrant (kennismigrant, art. 3.30a Vb 2000) is admitted because — and for as long as — the function yields a certain amount: as of 1 January 2026, €5,942 gross per month for the highly skilled migrant aged 30 and over, €4,357 under 30, and €3,122 under the reduced criterion (art. 2.1(1)(a) Implementation Decree Wav 2022). Salary is the statutory proxy for the value of the person. If the function falls away, article 19 in conjunction with article 18(1)(f) Vw 2000 provides the ground for withdrawal; in IND practice a search period of three months remains to find a new recognised sponsor. Elsewhere in the Foreign Nationals (Employment) Act the mirror image appears: the work permit is refused if priority-enjoying supply is available on the labour market (art. 8 Wav). The foreign national is admitted as a residual function.
Social security. Unemployment benefit (WW) builds on employment history; the Participation Act imposes work and reintegration obligations.
The human being as function is therefore neither an accident nor a cultural decline. It is a legislative choice, made in an era in which the profession was a lifelong constant.
3. The function evaporates — and the law lags behind
(a) The reassignment requirement
Article 7:669(1) BW requires reassignment “whether or not with the aid of training” into “another suitable function”. The Supreme Court has called this not an obligation of result, but a matter of what can reasonably be demanded of the employer in the given circumstances (Supreme Court, 18 January 2019, ECLI:NL:HR:2019:64; earlier Supreme Court, 16 February 2018, ECLI:NL:HR:2018:182, Decor). The reasonable period equals the notice period (art. 10 Dismissal Regulation). That framework presupposes two things: that there is still a function somewhere else in the organisation, and that a few months of training can bridge the gap. Both assumptions collapse when an entire function family disappears at once. Expect litigation over the scope of “training”, over reflection when the category of interchangeable functions itself evaporates, and over the h-ground as a way out.
(b) The training obligation
Article 7:611a(1) BW contains a striking clause: the employer must enable training that is necessary for the function and, insofar as this can reasonably be required, for continuation of the employment contract if the function ceases to exist. Since 1 August 2022 (implementation of Directive (EU) 2019/1152), compulsory training is free of charge, counts as working time, and any study-costs clause covering it is void (art. 7:611a(2)–(4) BW). But the anchor point remains the function. Nothing obliges an employer to train a person out of the vanishing function toward a future that lies outside the company. And the state? The STAP budget was abolished as of 1 January 2024; what remains is the lifelong-learning credit and the sectoral training-and-development funds. At precisely the moment when an individual right to development became existential, the government withdrew it. That is perhaps the most underexposed legal fact of this decade.
(c) The AI Act — and the gap in time
Annex III to Regulation (EU) 2024/1689 classifies AI for recruitment, task allocation, monitoring, evaluation, promotion and termination as high risk (point 4), as well as AI in education and examination (point 3) and in migration, asylum and border control (point 7). Those obligations were to apply from 2 August 2026. Via the Digital Omnibus on AI (proposal of 19 November 2025; provisional agreement May 2026; the European Parliament assented on 16 June 2026) they shift to 2 December 2027 for stand-alone high-risk systems and 2 August 2028 for systems integrated into products. Moreover, grandfathering has been broadened: existing systems remain out of scope as long as they are not substantially modified. The EDPB and the EDPS warned sharply against this in their joint opinion. The practical consequence: precisely the years in which the AI-driven reorganisation is carried out are the years without a high-risk regime.
What does apply: Article 5 (prohibited practices, since 2 February 2025), including the ban on emotion recognition in the workplace and in education (art. 5(1)(f)) and on manipulative techniques and exploitation of vulnerabilities; Article 4 (AI literacy); and the transparency obligations of Article 50 from August 2026.
And above all: the GDPR remains fully applicable. Article 22 GDPR after SCHUFA (CJEU, 7 December 2023, C-634/21): the score itself is the decision when it determines the outcome in practice. And Article 15(1)(h) GDPR after Dun & Bradstreet (CJEU, 27 February 2025, C-203/22): the data subject is entitled to meaningful information about the underlying logic, and a trade secret is not an absolute shield — the court assesses for itself. For dismissal practice this means: the employer who lets an AI system determine who is redundant is bound today already — through the GDPR, not through the AI Act. And the “human in the loop” who merely signs off offers no cover after SCHUFA.
(d) The Platform Work Act
Chapter III of Directive (EU) 2024/2831 (algorithmic management) is the first EU instrument that grants the worker rights against the algorithm as such: transparency, restrictions on processing (emotional state, private conversations, biometrics), human oversight, human review of significant decisions and a right to explanation — and those rights apply also to the genuine self-employed platform worker. The Dutch draft Platform Work Act went into public consultation on 29 June 2026 (responses accepted through 24 August 2026); the government acknowledges that the implementation deadline of 2 December 2026 will not be met and that the legal presumption will only start to run upon entry into force of the Dutch act. In the meantime, directive-conforming interpretation remains and, against the State, possibly Francovich liability.
4. Whoever assembles himself holds nothing legally
The modern worker is increasingly expected to assemble his own trajectory: combining modules, experiences and practices into a profile that no existing profession covers. Employers ask for it, training providers advertise it, the market rewards it. Legally, that person is invisible. Dutch law recognises diplomas, not trajectories.
- The NVAO accredits programmes (Chapter 5a WHW); civil effect attaches to the certificate and the degree (art. 7.10a WHW). A self-assembled trajectory of five modules at three institutions yields no degree, and therefore no civil effect.
- Microcredentials exist in the Netherlands as a pilot (edubadges) and at European level as a recommendation (Council Recommendation of 16 June 2022, 2022/C 243/02). NLQF classification is a matter of private law. A statutory equivalent does not exist.
- The tension is greatest where the interests are greatest: in the regulated professions (Advocates Act, Individual Healthcare Professions Act (Wet BIG), Notaries Act (Wna) — via Directive 2005/36/EC and the General Act on the Recognition of EU Professional Qualifications) the diploma monopoly is absolute. It is precisely there that the self-assembler is powerless.
- And in migration law: the reduced salary criterion presupposes a diploma from a designated institution (top 200 of recognised rankings), the orientation year is diploma-bound, and diploma evaluation runs via Nuffic/IDW. Whoever has assembled himself does not even enter the country.
What awaits us is a choice between two roads: modularisation of qualification law (statutory anchoring of microcredentials, validation of informal learning, a learning account), or a growing group of highly capable people without a legal position. The second road is for now the more likely, because the first requires the state to relinquish control over what counts as knowledge.
5. The basic income does not exist; what exists is conditionality
The popular answer to disappearing work is the basic income: whoever no longer has a function receives a floor. That idea deserves legal contradiction.
The Netherlands has no basic income. The Netherlands has social assistance (bijstand): with an assets and means test, with a cost-sharing norm, with work and reintegration obligations and a quid pro quo. Article 20(3) of the Constitution grants “a right to social assistance to be regulated by law” — a social fundamental right, an instruction to the legislature, not a directly enforceable claim; article 120 of the Constitution excludes review of the Act against the Constitution. Internationally, articles 12 and 13 ESC and article 9 ICESCR offer little direct purchase.
As of 1 January 2026, the first phase of the “Participation Act in balance” entered into force: some twenty measures, more tailoring, less sanctioning, phased through to 2027, with parts awaiting the Social Security Enforcement Act. A real improvement. But the architecture does not change: income remains a reward for the willingness to become a function again.
The legal answer to the disappearance of work in the Netherlands is therefore not liberation, but verification. That is the lesson of the childcare-benefits affair and of SyRI (District Court of The Hague, 5 February 2020, ECLI:NL:RBDHA:2020:865), in which the risk model was held to be contrary to article 8 ECHR. The larger the group without a function, the greater the state’s need to check whether that is really the case. Whoever expects a basic income must first explain how our legal order takes leave of conditionality. Nothing on the current legislative agenda points in that direction.
6. The invisible dependency: the next fundamental right?
The twentieth century emancipated the human being in law. The formal dependencies — on estate, on lord, on church, on employer — have been dismantled or regulated. But a dependency has taken their place that the law barely sees, because it is not formal: on ways of thinking, on behaviour, on emotional response. No one compels; the offering is voluntary and the system is comfortable. That is precisely why the classical safeguards get no grip on it.
Here lies the gap in our system of fundamental rights. Article 11 of the Constitution protects the inviolability of the body. Article 10 of the Constitution and article 8 ECHR protect private life, into which the ECtHR reads personal autonomy (Pretty v. UK, 29 April 2002, no. 2346/02). The GDPR protects data about you. But nothing in the Constitution protects the formation of your own worldview — the capacity that precedes all other fundamental rights, for without one’s own judgment a freedom of expression is an empty shell.
The first legal shoots are visible, but they are consumer and platform law, not constitutional law:
- AI Act art. 5(1)(a) and (b): a ban on manipulative techniques and on exploitation of vulnerabilities that materially distort behaviour and cause significant harm. The threshold is high.
- DSA (Regulation (EU) 2022/2065): art. 25 (dark patterns), art. 27 (transparency of recommender systems), art. 38 (an option without profiling on very large platforms).
- The Digital Fairness Act: a proposal expected in the fourth quarter of 2026, as an elaboration of the Consumer Agenda 2030, aimed at dark patterns, addictive design, influencer marketing and manipulative personalisation.
- Internationally: the rise of neurorights (UNESCO, Chile, various US states).
What awaits us is presumably the constitutional debate of the 2030s: is there a right to mental integrity or cognitive freedom, and if so — against whom? The classical fundamental right operates vertically; this dependency is horizontal and commercial. That is why the answer comes first from consumer and product law, and only later — if it comes at all — from the Constitution.
7. Six expectations for Dutch practice
- Waves of dismissal on the a-ground, with a reassignment doctrine under pressure. The core question becomes whether “training” in art. 7:669(1) BW also encompasses retraining toward another function family. The current answer (reasonable effort, within the notice period) is not built for this scale.
- A shift in qualification law — with a paradox. The more the algorithm allocates, prices and evaluates work, the more authority and embedding, and therefore the sooner employee status (Deliveroo, Supreme Court, 24 March 2023, ECLI:NL:HR:2023:443; Uber, Supreme Court, 21 February 2025, ECLI:NL:HR:2025:319, in which the Supreme Court expressly left legal development to the legislature). Add to that the VBAR legal presumption — after the memorandum of amendment of 10 March 2026, only the legal presumption for rates below roughly €38 per hour remains — plus the Platform Work Act, and the picture is complete: the law answers the call for autonomy with the offer of protection. That is not a contradiction, but it is a tension over which we will litigate for ten years.
- Migration law becomes the sharpest laboratory. Salary criteria index upward while the functions that met them erode; the highly skilled migrant who loses his job has three months. And the assessment itself is increasingly automated, while the high-risk regime for Annex III point 7 (migration and asylum) has just been postponed to December 2027. Nowhere is the gap between technology and safeguard as large as at the border. For practice this means: articles 22 and 15 GDPR, articles 3:2 and 3:46 Awb and the principles of proper administration are the instruments — not the AI Act.
- Education and qualification law: statutory pressure on the diploma monopoly, with microcredentials and validation at stake.
- Social security: no basic income, but a further densification of the verification state, held in check by article 8 ECHR and the GDPR.
- Fundamental rights: mental integrity as an agenda item, first via Brussels, only then via The Hague.
8. Conclusion
The debate about the human being of the twenty-first century is usually conducted existentially: shape yourself, or be pushed aside. Legally, the question is sharper. It is not whether we shall be person or function, but whether the law learns to recognise the person before the function has evaporated. For as long as the function is the legal foundation of the person, the legal position disappears together with the function.
That is not a philosophical problem. It is a legislative task — and in parts a litigation risk that is already on the table with clients today.
