Uber decision
The Dutch Supreme Court recently issued the “Uber decision” (Dutch Supreme Court, February 21, 2025, ECLI:NL:HR:2025:319). Put briefly, this case focused on how the ninth Deliveroo criterion should be interpreted.
The ninth Deliveroo criterion (for determining whether a worker qualifies as an employee) is that it may also be relevant whether the person carrying out the work acts or may act like an entrepreneur in the course of business, for example in acquiring a reputation, in terms of acquisition and tax treatment, and having regard to the number of clients for whom he works or has worked and the length of time he usually commits to a particular client. This is also called “external entrepreneurship” because it has nothing to do with the relationship between the work provider and the worker, but with a variety of external factors. There is also “internal entrepreneurship”, which exists where the worker acts like an entrepreneur in his dealings with the work provider (for example, by negotiating rates, etc.).
The Appellate Court was faced with the following dilemma (my practical translation): all Uber drivers work on the basis of the same affiliation agreement, but one group of Uber drivers works exclusively for Uber and the other group of Uber drivers also has a number of other clients and sources of income. In that situation, should all Uber drivers be considered employees, or only those who work exclusively for Uber?
The Dutch Supreme Court has now answered this question by stating that “external entrepreneurship” has to be fully taken account of in the assessment. This means that two people can do exactly the same work on exactly the same terms for the same work provider, but one person qualifies as an employee and the other qualifies as a self-employed worker (for example, because that self-employed worker has other clients in addition to working for the work provider).
Is Uber a game changer?
The Uber decision benefits the Dutch business community, self-employed workers and intermediaries for self-employed workers, as the Dutch Supreme Court opted for the broader full review of external entrepreneurship. If a self-employed worker actually acts like a self-employed worker in commerce (e.g., he has his own business assets and his own website and is treated as a self-employed worker for tax purposes) and also has multiple clients (i.e. he is not financially dependent on one work provider), that will be a factor when assessing whether he is actually a self-employed worker. This also makes it more difficult for the Dutch Tax Administration, trade unions and other regulators to argue that all self-employed workers of a particular work provider qualify as employees. After all, each worker’s external entrepreneurship will be different. The Dutch Tax Administration will also have to adjust its enforcement policy.
In my view, the Uber decision is not a game changer, as eight other Deliveroo criteria have to be considered in addition to criterion nine (external entrepreneurship). A worker who is entirely dependent on one work provider, works for it for a long period of time and also shows few other entrepreneurial characteristics will still qualify as an employee.
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