Employee or self-employed? When is someone an entrepreneur?

With the Dutch Tax and Customs Administration again enforcing the Deregulation of Assessment of Employment Relationships Act (DBA Act), these questions have become even more important. In a recent ruling on Uber drivers, the Supreme Court provided additional guidance on how to determine whether someone is a self-employed person.

Since 1 January 2025, the Tax and Customs Administration has been enforcing the DBA Act. This means that the Tax Authority assesses by default whether self-employed persons may be employees and therefore payroll tax must be paid.

Difference between employees and self-employed workers

In the Deliveroo ruling of 2023, the Supreme Court ruled that the actual performance of the contract should be considered when determining whether there is an employment contract. In that ruling, the Supreme Court listed points of view that may be relevant in determining whether there is an employment contract or a contract for services:

1. The nature and duration of the work;
2. The manner in which the work and working hours are determined;
3. The embedding of the work and of the person performing the work in the organisation and business operations of the person for whom the work is performed;
4. The existence or absence of an obligation to perform the work in person;
5. The manner in which the contractual arrangement and the relationship of the parties was established;
6. The manner in which remuneration is determined and paid;
7. The amount of such remuneration;
8. Whether the person doing the work thereby incurs commercial risk;
9. Whether the person performing the work acts or can act as an entrepreneur (‘entrepreneurship’). This could include activities such as looking for assignments and building up a business profile.

Characteristics of entrepreneurship

In the recent Uber ruling, the Supreme Court clarifies when there can be entrepreneurship:

• There is no ranking between the points of view as mentioned in the Deliveroo ruling. Thus, entrepreneurship is no more or less important than the other points of view.
• Not only the relationship of the self-employed worker with the client is important: circumstances outside the relationship between the worker and the client/employer also count. An example of this is working for multiple clients.
• It is therefore possible for an employee and a self-employed worker to perform exactly the same work for the same employer/client.

It follows that among the Uber drivers could be both employees and self-employed workers. The Supreme Court thus comes to a different conclusion from the Amsterdam court, which held that Uber drivers are employees and not self-employed. The Amsterdam Court of Appeal will continue the case and take the Supreme Court’s opinion into account in its ruling.

VBAR bill

The Uber ruling is also important for the Bill on Improving Assessment of Employment Relationships and Legal Assumptions (VBAR). This bill aims to provide more clarity on when someone is considered an employee or a self-employed person. In the first version of the bill, someone was considered an employee if there was ‘work-related steering’ and ‘organisational embedding’, unless there were more facts pointing to self-employment.

The embedding criterion attracted a lot of criticism as it was seen as vague and difficult to implement. In the amended version of the bill, this criterion has been replaced by the element ‘work-related and organisational steering’. In essence, ‘work-related steering’ and ‘organisational embedding’ have been merged. This means that embedding in the organisation remains of great importance. The question of whether there is ‘entrepreneurship’ still only arises when there is evidence of both employment and self-employment. This was at odds with the Supreme Court’s opinion, as the bill applied an order of precedence between points of view. The government therefore will amend the bill again.

Employment law and dismissal lawyer

Would you like to know how the contract on the basis of which you perform work or have work performed should be qualified? We will be happy to advise you on this. You can also contact us for other questions about employment law. Please contact us: