Supreme Court: entrepreneurship is relevant when qualifying the employment relationship

On 21 February 2025, the Dutch Supreme Court rendered an important judgment about the criteria to determine whether an employment agreement exists. The Supreme Court clarified to what extent ‘entrepreneurship’ of the worker plays a role here.

The trade union FNV and Uber have been debating for a long time whether Uber’s taxi drivers – who work under a contract for services – should be designated as self-employed persons or as employees (so-called ‘false self-employed persons’). In these proceedings FNV sued Uber for non-compliance with the CAO for taxi transport. 

In 2021, the Court of Amsterdam held that Uber’s drivers work under an employment agreement and that Uber consequently has to comply with the CAO [collective labour agreement]. In the ensuing appeal proceedings, the Amsterdam Court of Appeal asked preliminary questions to the Supreme Court about the role of the viewpoint ‘entrepreneurship’ in the assessment of the working relationship. The Supreme Court answered those questions on 21 February.

Previously, the Supreme Court considered in the Deliveroo judgment that it depends on all circumstances of a case whether an agreement must be designated as a contract for services or as an employment agreement. One of those circumstances, according to the Supreme Court, is whether the party performing the work acts or can act as an entrepreneur in the course of trade. Other circumstances that play a role are, for example, the nature and duration of the work, the embedding of the work in the client’s organisation, and the question whether the worker runs a commercial risk. 

In the judgment of 21 February, the Supreme Court clarified the viewpoint ‘entrepreneurship’. The Court of Appeal had asked the Supreme Court, among other things, whether the specific relationship between the worker and the client (‘intrapreneurship’) should be the only thing to consider, or whether circumstances relating to the situation of the worker outside this relationship should also be taken into account (‘extrapreneurship’). Examples of the latter could be the number of clients of the worker, or whether the worker is registered in the Chamber of Commerce register, invests in his own company, has his own website, etc.

First of all, the Supreme Court held that ‘entrepreneurship’ does not differ from the other circumstances mentioned in the Deliveroo judgment in terms of importance. There is no ranking order between these circumstances. According to the Supreme Court, it cannot be excluded that the agreement will be qualified differently if the entrepreneurship of the worker is taken into account. As a result, it may differ per worker whether they have an employment agreement, even if they do the same work for the same client. The Supreme Court also considers circumstances to be relevant to the assessment of entrepreneurship that occur beyond the working relationship to be assessed. 

The Supreme Court not only expressed an opinion on the matter of qualification, but also on a more technical aspect of the FNV’s claim. According to the Supreme Court, a general opinion on the qualification of agreements of workers with the same client/employer may be given in the context of a claim of a trade union based on the Collective Agreements Declaration of Universally Binding and Non-Binding Status Act (‘AVV Act’). Therefore, proceedings based on a class action are not required. 

The Supreme Court sees no reason for a ranking order in the circumstances that play a role in the qualification of the working relationship, but observes also that new legislation is being prepared in this field (the ‘VBAR Act’). Under this legislative proposal, the indications signalling entrepreneurship outside the working relationship should only be involved in the qualification if the other circumstances are not decisive. We will have to wait and see whether the legislator will be prompted by the Supreme Court’s judgment to adjust this legislative proposal. 

• There is no ranking order between the viewpoints from the Deliveroo judgment, or other circumstances, in the qualification of an agreement. In principle, the factor of a worker acting as an entrepreneur or not carries as much weight as the other factors.
• Aspects outside the working relationship concerned (extrapreneurship) should also be taken into account in the assessment of entrepreneurship. For example, whether the worker has several clients, has a registration with the Chamber of Commerce, has a website of his own, invests in his business, etc.
• A legislative proposal has been submitted that gives ‘extrapreneurship’ a lighter role, but this proposal has not yet been debated in the two Houses of Parliament. Until this proposal is adopted, the worker’s entrepreneurship must be regarded as an important factor in the assessment of a working relationship.