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Employers and clients may be thinking, ‘Here we go again...’, but the question of when someone is an employee and when a self-employed person continues to occupy minds. On 11 March this year, the Rotterdam District Court issued the ruling following the Uber judgment in this area - making it well worth dwelling on. 

At issue in this ruling was a manager of a pancake restaurant, who was working on the basis of an assignment contract. After this manager was accused of making a grab from the till, the cooperation between the two was terminated with immediate effect. The question presented to the court: does the cooperation between the parties qualify as an assignment contract or an employment contract? 

The judge applied the line from the Uber judgment one-to-one: all points of view from Deliveroo were assessed in relation to each other, without one factor being decisive. This therefore means that the actual performance of the cooperation was looked at and not just the paper agreements. The conclusion? This business manager was working under a contract of engagement. The factors involved included:

• that the business manager himself had insisted on a commission contract and had himself provided a contract for that purpose;
• that the business manager invoiced weekly at a fixed hourly rate, including VAT;
• that no payroll tax and contributions were withheld, no pay slips were provided and no leave or performance regulation was in place;
• that the business manager was registered as an entrepreneur, had previously worked as a self-employed person and had done so after this assignment;
• that the business manager had taken out liability insurance.

Although this manager received instructions and had a certain degree of embeddedness in the organisation, this did not outweigh the fact that he himself had chosen to work as a contractor and presented himself as such to the outside world. Consequently, the claims brought by the manager for compensation for wrongful termination, payment of the transitional compensation and fair compensation were dismissed.  

What does this mean? This ruling highlights that the contractual and factual interpretation of cooperation is crucial. Employers and Principals would do well not only to make clear agreements, but also to make them fit the intended form of cooperation in practice. Because when and court has to judge, it looks at the overall picture. 

Do you have doubts about using self-employed workers in your company? Or would you like to know more about the legal risks? If so, please contact Dennis Oud, Elke Hofman or Tim van Riel.

You can read the ruling here.

When your licence application is rejected and you, the applicant, object to this, you naturally expect to be an interested party. After all, you are the one who submitted the permit application and the one who received the rejection. In some cases, however, you are then deceived.

This was also the case in the ruling by the interim relief judge of the Overijssel District Court on 18 March 2025. In this case, the applicant wanted the dirt road alongside his plot to be paved. The road was owned by the municipality and therefore the municipality's cooperation was required. The municipality refused to cooperate. The applicant then paved the road as yet. The municipality then initiated enforcement proceedings and imposed an administrative order, to which the applicant appealed. He also submitted a permit application to legalise the paving of the dirt road (as yet). The applicant's objection was declared unfounded and therefore the applicant appealed and applied to the court for injunctive relief. This was because he believed that there was a concrete prospect of legalisation.

The interim relief judge did not follow this view and referred to established case law, which states that the applicant for a permit is in principle presumed to be an interested party in a decision on the application, unless it is made plausible that the activity cannot be realised.

According to the preliminary relief judge, it is likely that the paving of the dirt road cannot be legalised and the municipality is therefore going to reject the permit application. The applicant cannot therefore be considered an interested party; there is no admissible application and therefore no concrete prospect of legalisation. The judge added that there is no reason to make a distinction between an application for a permit for an activity that has yet to be performed and an application with a view to legalising an activity that has already been performed. 

Do you doubt whether you are an interested party in a decision and whether your objection or appeal will be admissible? If so, please contact Gerard van der Wende or with Fleur Huisman. 

You can read the ruling here.

It has often been the subject of litigation in various courts: the interpretation of definitions in zoning plans. What exactly is meant by a specific term and what uses does it cover? These are common questions. 

The ruling discussed in this blog again focused on a definition. Indeed, in its ruling of 12 March 2025, the Gelderland District Court had to rule, among other things, on the definition ‘recreational’. More specifically, it had to assess whether airsoft activities could qualify as ‘recreational’. The zoning plan and the explanation of the plan did not make this sufficiently clear. 

The court referred to established case law of the Division, which states that plan rules must be interpreted literally for the sake of legal certainty. Based on legal certainty, in principle, what is stipulated in the zoning plan must be assumed. For the meaning of a term, therefore, in the absence of points of reference in the zoning plan and the explanation of the plan, a connection must be sought to what is understood by it in general speech. The meaning from the ‘Van Dale Groot Woordenboek van de Nederlandse taal’ can be used. 

The Van Dale describes ‘recreational’ as ‘relating to recreation, from the point of view of recreation, recreational sports more for relaxation than for performance’. The court therefore ruled that airsoft activities should be considered recreational. In doing so, it also took into account that airsoft is a sport certified by the NOC NSF and the business is aimed at ‘team building’ and ‘relaxation’. 

When assessing the meaning of a definition from the zoning plan, therefore, in addition to the zoning plan and the explanation of the plan, the interpretation of that definition in ‘the Dikke van Dale’ is mainly important. 

You can read the ruling here.

You have worked on your business for years and built a competitive edge. Then an employee sends business emails to his private email address. Innocent on the face of it, but what if he goes to the competition with that information? Fortunately, you have a confidentiality clause. But is it foolproof?

A recent ruling by the Zeeland-West Brabant District Court shows that a faulty clause can put an employer at a disadvantage. In this case, an employer wanted to fine an employee for forwarding e-mails. However, the court ruled that the clause only spoke of ‘third parties’ and did not include a private mailbox. The IT Policy also offered no salvation, as it did not explicitly refer to the confidentiality clause. Consequence: the employee went free.

How do you prevent this?

1. Clear wording - Explicitly define what is covered by confidentiality and prohibit storing, copying or forwarding information to the private e-mail address of employee or other third parties not authorised to receive it.
2. Consistent policy - Make the confidentiality clause and IT Policy consistent and refer to each other.
3. Sanctions and enforcement - Include and strictly enforce penalty provisions.
4. Regular review - Review and update the clause periodically.

Conclusion

A confidentiality clause is a living document that should grow with your business. Make sure you have clear rules, a consistent policy and effective enforcement to avoid legal problems.

Do you have questions about whether your clause is watertight? If so, please contact Dennis Oud, Elke Hofman-Bijvank or Tim van Riel.

You can read the ruling for yourself here

Our sponsored martial artist Dave Kienz had a successful trip to New York. On Saturday, he took on an American champion in Rochester, NY, in a prestigious 3x3-minute ‘Super Fight’. Dave dominated the match from the start and managed to win within the first round by scoring a wazari twice with rakish kicks to his opponent's liver and head.

In addition to his impressive victory, Dave was awarded the award for most technical fighter at the end of the evening, a wonderful recognition of his fighting style and skills.

After a brief exploration of the city of New York, Dave is now back home and focusing on the next challenges. Two major tournaments are scheduled in the coming months:

📅 6 April - Western European Championships
📅 8-10 May - World Championships

Dave is training very hard to climb the podium here too. We will continue to follow him and wish him good luck in his preparation! 💪🥋

In its ruling of 5 March 2025, the Administrative Jurisdiction Division of the Council of State clarified the relationship between its jurisprudence on the principle duty of enforcement and its jurisprudence on the application of the principle of proportionality. 

First, a brief explanation of both definitions. The duty of principle to enforce means that, in principle, the administrative body must always enforce if it becomes aware of a violation. This duty of principle may be at odds with the principle of proportionality, which means that the consequences of a decision must not be disproportionate for interested parties in relation to the objective to be served. 

The Division has ruled on that ratio on several occasions. In its ruling of 3 March 2025, it clarified its line in doing so. It stated that, in determining whether enforcement action could be waived, it should be assessed whether enforcement action would be disproportionate. This should draw on the so-called Harderwijk ruling from 2022, which implies that the administrative judge must assess whether the decision is appropriate and necessary to serve desired purpose, and then determine whether the decision is balanced in the specific circumstances of the case. 

The Division does emphasise that enforcement serves the public interest and must therefore remain paramount. Enforcing the law is only disproportionate if the circumstances in the specific case are so significant that the public interest must prevail. Those circumstances then take precedence over the public interest. 

In short, enforcement is therefore the rule, but in the event that the decision is not suitable, necessary and balanced to serve the desired purpose and there are therefore circumstances that must outweigh serving the public interest, the principle of proportionality precludes enforcement. 

You can read the State Council ruling here.