Entrepreneurship as a full-fledged criterion in employment relationships: Dutch Supreme Court clarifies position

Entrepreneurship as a relevant factor

The Supreme Court clarified that the assessment of an employment relationship does not follow a fixed hierarchy of factors. Whether an Uber driver operates under an employment contract depends partly on whether the driver presents themselves as an entrepreneur in the economic sphere. This ruling follows the Deliveroo case, where the court had already acknowledged external entrepreneurship as a relevant factor. However, the new decision confirms that entrepreneurship must be considered independently, even if other elements suggest an employment contract.

Deviation from Advocate General’s advice

The ruling deviates from the advice of Advocate General, Ruth De Bock, who argued that personal entrepreneurial criteria should play only a limited role. According to Mrs De Bock, the qualification should primarily depend on the working relationship rather than the worker’s entrepreneurial characteristics. The Supreme Court, however, asserts that entrepreneurship can independently affect the legal qualification, potentially leading to different outcomes for similar work under varying entrepreneurial circumstances.

Impact on legislation

The decision holds significant implications for the legislative proposal, which previously prioritised the nature of the work and the organisational structure over entrepreneurship. The court’s clarification may prompt adjustments to the legal framework, placing more weight on entrepreneurial aspects in future legislation.

Conclusion

By recognising entrepreneurship as an independent factor in employment qualification, the Dutch Supreme Court has set a new precedent. This decision may lead to a more nuanced approach in assessing employment relationships, and could influence upcoming legislative changes. The Dutch Ministry of Social Affairs and Employment is expected to integrate this ruling into the ongoing legislative process, potentially reshaping the legal landscape for self-employed workers.

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Maaike Koot is a lawyer at TK and part of the international corporate employment law team. Maaike advises on reorganisation and dismissal, (collective change of) employment conditions, sickness and reintegration, temporary employment law and management agreements.