On 21 February 2025, in a long-awaited ruling in preliminary proceedings, the Dutch Supreme Court delivered answers to the ongoing issue of how to assess the employment status of workers (in this case, Uber drivers). In its ruling, the Supreme Court confirmed once more that no hierarchy exists among the factors relevant in determining if a legal relationship qualifies as an employment agreement existing under article 7:610 Dutch Civil Code. These factors are set out in the Deliveroo ruling.

More specifically, the Supreme Court ruled that one of the factors – "external entrepreneurship" – is not of lesser or secondary importance in determining whether an employment agreement exists. This ruling also means that two workers performing the same work for the same contracting party could have a different legal status – one as an employee and the other as a self-employed contractor – depending on their "entrepreneurial" position. The Supreme Court clarified that "entrepreneurship" in this context extends beyond the specific worker-contracting party relationship (also referred to as "internal entrepreneurship") and includes broader economic activities. Therefore, the legal relationship between a company and its workers could qualify as there being an employment agreement for one worker, and an agreement for services for another, depending among other things on how the workers act or are able to act as an entrepreneur participating in economic activities.

Background of the case

In 2020, trade union FNV started legal proceedings before the Amsterdam District Court against Uber and demanded that Uber apply the collective bargaining agreement for the taxi industry (CAO Taxivervoer). In its defence, Uber argued that there was no obligation to do so, among other things, because the workers were self-employed contractors, not employees. Since the collective bargaining agreement is only binding for employers and employees, Uber argued that it was not required to apply it. The Amsterdam District Court disagreed with Uber's position and ruled that Uber had to uphold the collective bargaining agreement. Uber decided to bring the case before the Amsterdam Court of Appeal. A group of drivers joined Uber in this appeal, stating they are self-employed contractors.

In an interim decision, the Court of Appeal held that in order to rule on the matter, the Supreme Court needed to clarify the "entrepreneurship" factor as mentioned in the Deliveroo ruling. The Court of Appeal also raised the question whether the legal ground on which FNV based their case (article 3(2) of the "AVV Act") was suitable for requesting and receiving a decision on qualifying the legal status of a group of workers if individuals are not part of the proceedings. In addition, certain procedural guarantees included in a class action under the Dutch Civil Code, such as the possibility to "opt out", are not provided by article 3(2) AVV Act. The Court of Appeal therefore decided to start a preliminary procedure and formulated four questions for the Supreme Court.

In asking the first three questions, the Court of Appeal sought clarification of the meaning and weight of the Deliveroo criterion about whether a person performing the work is acting or is able to act as an "entrepreneur" when participating in economic activities and whether this means that workers performing the same work could have a different legal status. The Court of Appeal of Amsterdam asked if the aspect of "entrepreneurship" should be extended to outside the specific worker-contracting party relationship, referred to as "external entrepreneurship". For example, by building a reputation for oneself, acquiring clients or receiving certain tax treatment. Could these external circumstances also affect the classification of the working relationship?

The fourth question addressed whether a general classification judgment about an employment agreement could be based on article 3(2) AVV Act.

Advocate General opinion

On 30 September 2024, Advocate General De Bock issued an advisory opinion outlining the "external entrepreneurship" factor and the issue of hierarchy. The AG supported a minor role for the "entrepreneurship" factor in assessing whether an employment agreement exists. This factor only comes into play when the other factors have not produced an outcome in the assessment. Based on the law, courts should consider the legal relationship between contracting parties, not the way the worker behaves outside of that relationship. The secondary role for "entrepreneurship" in the assessment is in line with the newly proposed VBAR Act. The AG did, however, see a full role for the "entrepreneurship" factor within the relationship between the contracting parties (also referred to as "internal entrepreneurship" or "personal entrepreneurship"). She also argued that the assessment of employment agreements can be based on article 3(2) AVV Act, under the condition that the court – if necessary – states that the ruling does not imply that all workers have the same legal relationship with the contracting party.

Supreme Court ruling

The Supreme Court, in delivering its long-awaited clarification on this issue, decided not to follow the opinion of the Advocate General. It ruled that no hierarchy exists between the different factors as set out in the Deliveroo ruling and that all circumstances should be weighed equally. Consequently, the "external entrepreneurship" factor can be decisive in assessing whether an employment agreement exists. This also means that two workers performing the same work for the same contracting party could have a different legal status – one could be employed based on an employment agreement and the other could be engaged based on an agreement for services – depending on their "entrepreneurial" position.

As to the fourth preliminary question, the Supreme Court held that a claim regarding the assessment of an employment agreement with respect to a group of individuals can be based on article 3(2) AVV Act and not just on article 3:305a Dutch Civil Code if the individual circumstances do no differ too much. If it appears that the individual circumstances of the workers/groups of workers differ too much, the court may not be able to give a general classification judgment based on article 3 AVV Act. If the judge can make determinations for certain (groups of) workers/groups of workers, this can be expressed in the court's decision. The Supreme Court further made clear that any classification judgment issued on the basis of article 3 AVV Act has no binding force in later proceedings between the worker and the contracting party. Consequently, follow-up proceedings might be required to establish whether an agreement qualifies as employment.

Practical implications

This outcome again clarifies that classifying a legal relationship as an employment agreement requires a holistic approach whereby all relevant facts and circumstances are taken into account, as was ruled in Deliveroo. There is no hierarchy between the different factors, and workers doing the same work for the same contracting party can have a different legal relationship with this contracting party, if the circumstances relating to the "external entrepreneurship" factor differ. As was held in the Deliveroo ruling, it is up to the legislature to amend article 7:610 DCC regarding the classification of the employment agreement. The legislature is currently working on the VBAR Act, which is expected to enter into force as of 1 January 2026 at the earliest.