Market Access as an Instrument of Labour Market Regulation
1. Introduction
With the Act on the Authorization of the Provision of Labour (Wet toelating terbeschikkingstelling van arbeidskrachten – Wtta), the legislator opts for a fundamental restructuring of the regulation of the Dutch labour lending sector. Whereas the combating of malpractice in the past largely took place through civil liability constructions, fiscal safeguards, and private certification systems, the legislator now introduces a public-law authorization regime. The intended entry into force on 1 January 2027 therefore marks not merely a new statutory obligation, but a systemic change in the manner in which the government structures the market for the provision of labour.
The core of the new legislation is that labour lenders may no longer provide workers without prior authorization. Market access thus becomes dependent on a prior administrative decision. This shifts the emphasis from repressive enforcement after the fact to preventive regulation beforehand. In this respect, the regime resembles licensing systems in highly regulated markets, such as the financial sector or the gambling market, where market integrity is safeguarded through entry assessments.
2. The Normative Background of the Authorization Regime
The implementation report emphasizes that the Wtta is intended to put an end to fraudulent practices, particularly where vulnerable labour migrants are confronted with underpayment, poor housing conditions, and arrangements designed to circumvent social security and tax obligations. The legislator explicitly positions the authorization regime as a means of putting an end to a “race to the bottom” and of restoring competition based primarily on quality rather than price.
This normative objective is legally relevant. The authorization regime constitutes a restriction on the freedom of enterprise and on the free movement of services. Such restrictions are justified only if they pursue a legitimate objective and are proportionate. In this context, the emphasis on the protection of workers, fair competition, and market transparency forms the legal justification for the new regime.
3. The Dutch Labour Market Authority for Labour Lending as Market Regulator
For the implementation of the Wtta, a new department will be established within the Ministry of Social Affairs and Employment: the Dutch Labour Market Authority for Labour Lending (Nederlandse Autoriteit Uitleenmarkt – NAU). The NAU will be responsible for taking decisions on authorizations and exemptions, designating inspection bodies, maintaining a public register, and analysing signals from the market. In addition, it will have a reflective and advisory role with regard to the functioning of the system.
Although the NAU will formally remain part of the Ministry, it is positioned as an authority exercising its tasks independently. The implementation report stresses that independence, expertise, and reliability are essential, particularly because authorization decisions may have far-reaching consequences for labour lenders, workers, and hirers. In practice, the NAU will therefore function as a market regulator: a body that not only assesses individual applications but also oversees the integrity and development of the entire sector.
From a legal perspective, authorization and designation decisions qualify as administrative decisions within the meaning of the General Administrative Law Act (Algemene wet bestuursrecht – Awb). This implies that labour lenders may file objections and appeals, and that the NAU is bound by the general principles of proper administration, including the principles of due care, adequate reasoning, and proportionality. Given the economic significance of authorization, it is likely that administrative courts will develop guiding case law in the coming years concerning the scope of the NAU’s discretionary powers.
4. The Public–Private Dimension: Inspection Bodies
A notable element of the regime is the central role of private inspection bodies. An inspection report issued by a body designated by the NAU will, in principle, constitute a prerequisite for authorization. These bodies must first be accredited by the Dutch Accreditation Council (Raad voor Accreditatie) and are subsequently designated by the NAU.
This creates a layered structure in which private actors play an essential role within a public-law authorization regime. The quality and independence of inspection bodies will therefore partly determine the legal position of labour lenders. At the same time, the NAU retains its own responsibility for the final decision-making. The question to what extent the NAU may deviate from a positive inspection report — for example on the basis of additional signals — will likely become the subject of legal debate.
5. Fees Financing and Proportionality
The NAU will be financed through cost-covering administrative fees. Labour lenders must pay a fee for the authorization or exemption procedure and subsequently an annual contribution for as long as they remain listed in the register. The fee for the authorization procedure is statutorily capped at €3,611.
These fees must comply with the cost-recovery principle and are based on estimated implementation costs spread over several years. A distinction is made between a start-up phase and a structural phase. The legislator has also committed to providing full transparency regarding the calculation and use of these fees.
This financing system raises questions in light of the principle of proportionality. For smaller labour lenders in particular, the financial threshold may be substantial. Differentiation based on company size, for example according to turnover, could enhance proportionality, but such differentiation would need to be legally substantiated. It is foreseeable that administrative law proceedings will also arise regarding the imposition of fees.
6. Transitional Law and Temporary Vulnerabilities
A distinctive element of the Wtta is its transitional regime. Labour lenders who register in time and submit an application before 1 July 2027 may continue providing labour during the build-up phase, even without an inspection report. This means that in the initial phase the public register may also contain labour lenders who have not yet been fully inspected.
This arrangement is pragmatic but not without legal tension. On the one hand, it prevents market disruption due to insufficient inspection capacity. On the other hand, it may lead to uncertainty for hirers and reputational damage for labour lenders if an application is later rejected. The NAU emphasizes that signals during this phase may carry significant weight and may even lead to rejection or withdrawal without an inspection report. This underscores the importance of careful and transparent reasoning.
7. Governance and Implementability
The implementation report refers to a Gateway review concluding that timely implementation is possible, but that the planning is ambitious and carries risks. In particular, the development of ICT systems, the recruitment of personnel, and the timely designation of a sufficient number of inspection bodies constitute critical factors.
The planning provides for the opening of the registration portal at the end of 2026, the start of application assessments in 2027, and the actual enforcement of the authorization requirement from 1 January 2028. The full practical functioning of the system will therefore only become visible in the years following 2028. The first years will to a large extent have an experimental character, with practical experience shaping further policy development.
8. Conclusion
The Wtta introduces a fundamentally new approach to labour market regulation in which market access becomes the primary instrument for safeguarding integrity and protecting workers. The establishment of the NAU marks the institutional anchoring of this policy shift. As a result, the labour lending sector becomes subject to a form of public-law market supervision that previously did not exist to this extent.
The legal significance of the regime will largely depend on how the NAU exercises its discretionary powers, how carefully it handles market signals and inspection reports, and how proportionately the financial burdens are distributed. The coming years will reveal whether the authorization regime effectively contributes to the elimination of fraudulent practices or whether new avoidance strategies will emerge. In any event, for legal practice a new and dynamic field is emerging in which administrative law, labour law, and market regulation will increasingly intersect.
