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Recently, the Dutch Supreme Court confirmed in a case related to Uber taxi drivers that for the assessment of the existence of an employment or contractor relationship all relevant circumstances must be taken into account. This also includes the entrepreneurship of the worker. There is no hierarchy between the circumstances to be taken into account as they must be assessed in conjunction with each other. What constitutes relevant circumstances has previously been established by the Dutch Supreme Court in the Deliveroo ruling:

1. Nature and duration of the work;
2. The way the work and working hours are determined;
3. The embedding of the work and the person doing the work in the organisation and the operations of the organisation for which the work is performed;
4. Whether or not there is an obligation to perform the work personally;
5. How the contractual arrangement of the parties’ relationship was established;
6. How the remuneration is determined and how it is paid;
7. The level of the remuneration;
8. Does the person doing the work incurs a commercial risk;
9. Whether the person carrying out the work behaves or can behave as an entrepreneur in economic life, e.g. in gaining a reputation, in acquisition, in terms of tax treatment, and considering the number of clients for whom he works or has worked and the duration for which he usually commits to a particular client.

Therefore, part of the assessment of the type of working relationship includes entrepreneurship. Please note this may include aspects of entrepreneurship outside the organization for which the specific work is performed. You may consider, for example, the number of clients a worker has and the existence of entrepreneurial risks. For instance, if two workers are performing the same duties for an organization, one of them could be considered self-employed while the other is deemed a regular employee, for instance when there is less entrepreneurship in that situation. It therefore comes down to a case-by-case assessment of all the circumstances.

Now that the Tax Authorities have lifted the enforcement moratorium per 2025 and subsequently can again impose correction obligations and additional income tax assessments, it is even more important to have a policy around working with self-employed persons. To the extent this has not yet been done, we recommend therefore reviewing not only the contractor contracts but also the actual performance of services in practice by the self-employed who are deployed for your organisation.