In light of the DBA Act, has anything changed for self-employed workers because of the Uber ruling?

A question that has occupied ZZP-end Nederland for some time now is how the enforcement of the DBA Act by the Tax Authorities will turn out. In that context, it is good to know how the courts view the qualification of the legal relationship between the client/employer and the contractor/employee.

The Deliveroo judgment: consequences for self-employed persons

In the Deliveroo judgment of March 24, 2023, with regard to the assessment of whether an employment contract had been concluded or a ZZP contract (contract for work), the entrepreneurship of the person in question was still considered: “- At present, civil law does not assign any significance to whether or not a person is an entrepreneur for the question of whether or not a contract should be regarded as an employment contract.”

That entrepreneurship as a criterion is not recognized is not good news for the ZZP-er, after all, there will certainly be outward characteristics of an employment contract in the case of a regular client, e.g. regular work at the client’s location.

Preliminary questions in the Uber case

On Feb. 21, 2025, the Supreme Court issued a judgment containing a preliminary ruling on an application by the Amsterdam Court of Appeal.

These preliminary questions had been asked by the Court of Appeal in a case between the FNV and Uber as well as some of the drivers working for Uber under a ZZP agreement.

In the case, the FNV had claimed to rule that the CAO for Taxi Transport applied to these agreements.

Supreme Court answers to the preliminary questions

The Supreme Court answered the preliminary questions as follows, according to the Supreme Court’s own website. In the Deliveroo ruling, the Supreme Court did not rank the circumstances mentioned in that ruling as important in assessing whether there is an employment contract.

Thus, the circumstance of “entrepreneurship” is no less important than the other circumstances. The Supreme Court sees no reason for such an order of precedence now either. It cannot be ruled out that for the answer to the question whether a contract is an employment contract, the decisive factor is whether the employee acts or can act as an entrepreneur in the course of business, even if other circumstances point to an employment contract.

It can therefore occur that the employment relationship with respect to the same work, performed for the same client, is not an employment contract for a worker with ‘entrepreneurship’ and is for a worker without ‘entrepreneurship’. ‘Entrepreneurship’ in the sense of the Deliveroo judgment relates to the general (entrepreneurial) situation of the worker and can therefore also refer to circumstances outside the specific relationship between the worker and his client.

Self-employment versus sham self-employment

By giving this ruling, a self-employed person can thus better demonstrate that the relationship contains more characteristics of self-employment than of an employment relationship. However, I do not share the euphoria here and there following the Uber ruling (.PDF). After all, the ZZP-er still has quite a job to prove that the criteria distinguished by the Supreme Court actually lead to the conclusion that there is self-employment and no false self-employment.

The nine criteria from the Uber judgment.

For those criteria, I reproduce paragraph 3.5 of the Uber judgment below:

“3.2.3 In order to assess whether an agreement is to be considered an employment contract, it is necessary to determine by interpretation using the Haviltex measure what rights and obligations the parties have agreed upon. If the agreed rights and obligations comply with the legal description of an employment contract, the contract must be qualified as such. For this qualification, it is not important whether the parties intended the agreement to fall under the legal regulation of the employment contract.

Whether an agreement should be classified as an employment contract depends on all the circumstances of the case considered together. Of importance may include, inter alia

[i] the nature and duration of the work,

[ii] the manner in which the work and working hours are determined,

[iii] the embedding of the work and the person performing the work in the organization and business operations of the person for whom the work is performed,

[iv] the existence or absence of an obligation to perform the work personally,

[v] the manner in which the contractual arrangement of the relationship of the parties was established,

[vi] the manner in which the remuneration is determined and paid,

[vii] the amount of such remuneration, and

[viii] whether the person performing the work is at commercial risk in doing so. Also relevant may be

[ix] whether the person performing the work behaves or can behave as an entrepreneur in the course of business, e.g. in terms of acquiring a reputation, in terms of acquisition, in terms of tax treatment, and in view of the number of clients for whom he works or has worked and the duration for which he usually commits himself to a particular client.

The weight to be given to a contractual clause in answering the question of whether an agreement should be regarded as an employment contract also depends on the extent to which that clause actually has meaning for the party performing the work.

In short: the working relationship must be interpreted entirely on the basis of what the parties could reasonably infer on both sides from each other’s statements, and then the nine criteria are involved in order to interpret that in the concrete situation.

The DBA Act and the Uber case

What was not further involved in the Uber case was the DBA Act itself. After all, the Uber case involved the applicability of the CAO for Taxi Transport. Of course, a CAO also has a protective purport for the employee, but the purport of the DBA Act is more on countering false self-employment. Perhaps the Supreme Court will interpret an occurring case in the same way as in the Uber ruling. But it cannot be ruled out that when assessing self-employment, even more attention will be paid to the industry, the level of the rates, etc., with the starting point being that there is an employment relationship, unless the person concerned is so well off and participates in economic traffic in such an equivalent way that the protection of the employment contract is not necessary. Entrepreneurship may then rise even further in importance.

Practical tips

So how to deal with this in concrete terms? In the Netherlands, there is an enormous amount of self-employment, there is little urge to employ people, and in various industries, such as healthcare, many have become accustomed to the flexible hours and pay that is often double the CLA salary for the same work. These people would rather not be salaried. The gaps in the rosters, while all this work needs to be done, are currently being filled with ZZP-ers, but towards 2026 this problem will return in full force.

Recommendations for freelancers

The ZPP-er is best advised to work for multiple clients, to have his or her own website, to make acquisitions, and above all not to be on the website of the client where he or she is ‘on the team’ almost full-time. And anything that smacks of an authority relationship will also have to be avoided. The ZZP-er must act as an independent professional. One can imagine the Tax Office using an AI-driven program to do an Internet search and large-scale initial analysis. A ZZP-er does not want to end up in that dragnet. And the client should not have the ZZP-ers working for him/her on the website. This list of low-hanging fruit that can be picked to prevent the working relationship from qualifying as an employment relationship is certainly not exhaustive and will certainly differ from one industry to another. One would do well to orient oneself in time to avoid problems.

Contact

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