External entrepreneurship as a perspective
By the end of this month, the Dutch Supreme Court might issue a ruling in response to the preliminary questions submitted by the Amsterdam Court of Appeal in the Uber case.
On September 30 of last year, Advocate General (A-G) De Bock issued her opinion on the preliminary questions. Her answers to the first three questions regarding the role of external entrepreneurship as a perspective in the assessment framework of the Deliveroo judgment, to determine whether an agreement qualifies as an employment agreement, are crucial for legal practice. This ruling is also eagerly anticipated in political circles.
Commentary on A-G De Bock’s opinion
According to A-G De Bock, external entrepreneurship (Perspective 9 in the catalog of perspectives from the Deliveroo judgment) holds limited significance within the assessment framework and plays a subsidiary role in line with the WVBAR. If the Supreme Court follows the A-G’s reasoning, it could lead to a situation akin to the WVBAR already being in effect.
A-G De Bock’s opinion has received little commentary, despite its significant societal and legal implications. For this reason, I have written a commentary, which has been published today alongside an interview on ZiPconomy.
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In my commentary, I conclude that the A-G pays insufficient attention to the civil nature of employment agreements, specifically the principle of party autonomy embedded in general contract law. This includes the scope of the Groen/Schoevers ruling and the Participatieplaats ruling, particularly regarding the interpretation phase of the two-step methodology. In this phase, party-specific circumstances, such as “external entrepreneurship,” may also be relevant. While labor law has a unique character, its distinctiveness does not place it above the interpretative rules of Books 3 and 6 of the Dutch Civil Code.
