Qualification of employment relationship: Supreme Court made nuance regarding entrepreneurship

On Feb. 21, 2025, the Supreme Court ruled in the case between FNV and Uber involving the status of Uber drivers. FNV argues that the drivers are employees. Uber believes they are independent contractors. The case builds on the Deliveroo ruling of March 24, 2023, which articulated several viewpoints that are currently leading in the qualification of employment relationships. One of those points is about the degree of entrepreneurship of the worker. The court had asked the Supreme Court how the aspect of entrepreneurship weighs in the so-called holistic test. That is, all the circumstances of the case must be considered.

The main considerations of the Supreme Court are as follows:

No ranking of circumstances: The Supreme Court emphasizes that there is no fixed order of precedence between the various points of view in the Deliveroo ruling. The aspect of entrepreneurship is as important as other factors in this regard and can be equally decisive.

Relevance of external entrepreneurship: Entrepreneurship need not only be assessed within the direct relationship between the worker and the client, but how the worker presents himself to third parties is also important.

Individual assessment possible: This has the effect, and the Supreme Court explicitly confirms it, that it is therefore possible for two workers, performing the same work for the same client, to be qualified differently on the basis of their entrepreneurship. This means that one worker can be considered an entrepreneur and the other an employee, depending on the degree of entrepreneurship.

Although it seems as if the Supreme Court is not actually saying anything new and is staying neatly within the framework of the Deliveroo ruling, there is indeed a nuance that can be particularly important in practice. After all, in practice, the Tax Court seems to test by the standards of the draft VBAR bill [https://www.flib.nl/handhaving-belastingdienst-komt-op-gang], where a certain order of precedence has been applied to the various points of view. In that bill, entrepreneurship may only be taken into account if no unambiguous answer emerges from the other employee criteria. Thus, the Tax Administration may have to take a different position which gives room for the self-employed.

Conclusion

Another committee debate on the labor market is scheduled for early March. Naturally, we will keep you informed. Are you working on the qualification of your labor relations and do you need advice? Please contact one of our  attorneys by email, phone or fill out the contact form for a free initial consultation. We are happy to think along with you.