10 July 2025
Is a freelancer an employee or a contractor? The distinction carries major implications for legal protection, as well as financial and tax consequences.
In 2023, the Dutch Supreme Court (Hoge Raad) provided further guidance in the Deliveroo judgment on how to assess whether a working relationship qualifies as an employment contract or a contract for services. In 2024, unrest followed when the Dutch Tax Authority announced renewed enforcement on false self-employment of freelancers, dating back to 2015. Now, during the spring of 2025, the Supreme Court has clarified the use of the criterion of ‘entrepreneurship’ in the Uber ruling. For your organisation, this means that individuals performing the same work side-by-side may be classified differently: one as an employee, the other as a genuine self-employed professional. So what does this Uber ruling mean for employers?
The Supreme Court confirms what was already known from Deliveroo and the Tax Authority’s guidance on enforcement as of 2025: all circumstances of the case are relevant in determining whether a working relationship qualifies as an employment agreement, for both tax and employment law purposes. This means the non-exhaustive list of nine criteria from the Deliveroo judgment are all equally important. Specifically, the Supreme Court stated on 21 February 2025 that the “external entrepreneurship” criterion holds just as much weight as the others and should not be viewed as a secondary or final factor.
What exactly is this criterion? It asks whether the person performing the work acts or is able to act as an entrepreneur in the economic marketplace. Indicators include reputation building, marketing efforts, tax treatment, number of clients worked for, and the typical duration of assignments. Consider whether the individual has their own website, invests in professional development, makes business investments, participates in acquisition activities, or maintains a client portfolio.
The Supreme Court confirms that factors outside the specific relationship with one hiring entity, such as how the individual operates with other clients or in broader society may influence the assessment of whether or not there is an employment agreement. So, if one worker meets the criteria for external entrepreneurship and another does not, this may lead to one being a true freelancer and the other being classified as an employee, even if they work side-by-side.
In practical terms for the Uber case: even though two Uber drivers may have the same service contract with Uber, one could qualify as a genuine self-employed entrepreneur while the other is deemed an employee partly based on this entrepreneurship criterion. This distinction can carry serious implications, possibly retroactively, such as claims under the Taxi Transport collective labour agreement, holiday pay, accrued leave, pension contributions to the Transport Pension Fund, employment protection, and tax assessments.
This ruling highlights that even if other circumstances indicate an employment relationship, the presence of external entrepreneurship may tip the scale the other way meaning there is no employment agreement. It is therefore crucial for hiring entities to ask workers who present themselves as freelancers for documentation or clarification about their entrepreneurial activities.
In that earlier article, we pointed out that lower courts already applied the external entrepreneurship test when classifying working relationships. The Supreme Court now confirms that how a worker behaves in the broader economic context is fully part of the assessment. This means that within one business, different workers could legally perform the same work under different types of contracts. We are happy to help you assess the implications for your organisation to avoid tax and employment-related claims.
Do you have questions about this blog? Please feel free to contact us.
