Opinion of Advocate General De Bock: limited significance of entrepreneurial criteria in assessing employment relationship

In September 2024, De Bock issued an important opinion issued to the Supreme Court on the assessment of labor relations. This opinion may play an important role in the case between Uber and FNV. The opinion relates to the application of the so-called personal entrepreneurial criteria when assessing whether an employment relationship should be considered an employment contract. With the opinion that the AG gives is in line with the draft bill Verduidelijking Beoordeling Arbeidsrelaties en Rechtsvermoeden (VBAR), which is currently with the Council of State for advice. De Bock advises that the entrepreneurial criteria outside the employment relationship - such as the number of clients the worker has and actively making acquisitions to acquire orders - should should play only a limited role in qualifying a labor relationship. According to her, the key question should remain whether there is an employment relationship and therefore criteria within the employment relationship, such as a relationship of authority between the worker and the worker. The opinion of De Bock underlines that a formal reliance on self-employment may not be decisive if the actual working conditions point to an employer-employee relationship, after all, labor law is mandatory. Important to note: the AG's opinion is not binding and the Supreme Court therefore does not have to adopt it. In the judgment on Deliveroo the Supreme Court did not follow the advice of the AG either.