The political discussion about the VBAR, the Uber/FNV case and the future of the zzp file. What does all this have to do with each other?

Attorney General (AG) Ruth de Bock will issue an opinion in late September 2024 in response to the preliminary questions raised. In hhe opinion the AG states that the viewpoint 'personal entrepreneurship' has only limited significance when assessing employment relationships. This point of view only comes into play when a review of the previous eight points of view from Deliveroo is inconclusive as to whether an employment relationship should be classified as an employment contract. The focus should be on the concrete working relationship as it is in the workplace. Behaviors of the worker in the economic sphere cannot therefore "tip the balance. According to the AG, that the personal entrepreneurship of the worker is of limited significance is in line with the draft VBAR bill and with the assessment framework developed by the CJEU for the demarcation between entrepreneurs and employees. The AG also confirms that the AVV Act is suitable for collective actions such as those of the FNV.

The Supreme Court is free to follow the AG's advice or not. In the Deliveroo judgment, the AG's conclusion was not followed and the Supreme Court came to the conclusion that all circumstances of the case weigh in when assessing the employment relationship. Joost van Ladesteijn, employment law attorney at Vertex Legal, came up with a critical reaction to AG De Bock's opinion.

The Supreme Court's answers to the submitted preliminary questions are of great importance for the political discussion about the zzp dossier, the VBAR bill and assessing whether or not there is an employment contract. Thus, this has significance not only for cab drivers working through Uber, but for the broader discussion about self-employed workers and the flexible labor market.

If the Supreme Court goes along with AG De Bock's opinion, this will mean that an agreement will more quickly be regarded as an employment contract. Less importance will be attached to the point of view of 'personal entrepreneurship' when assessing an employment relationship. This is not in line with the Deliveroo judgment, where precisely "all circumstances of the case must be considered in connection with each other".

Should the Supreme Court not follow AG De Bock's advice, the "personal entrepreneurship" of the worker will weigh more heavily in assessing whether there is an employment contract. This will then be in line with the Deliveroo judgment, where the ninth point of view is a contraindication of employee status. This then has implications for the VBAR bill, because the so-called OP criteria (entrepreneurial criteria that look at the person himself) are secondary to the criteria that test for Employeehood (W) and Self-Employment (Z) which only look within the employment relationship.

The Supreme Court's answers to the preliminary questions are eagerly awaited by legal experts, policymakers, social partners and politicians. It will undoubtedly provide another chapter in the increasingly complex discussion of when an employment contract exists. In all likelihood, the Supreme Court will come out with answers in late January/early February.