Dutch companies with a permanent establishment in Switzerland are liable to pay AHV for Uber drivers.
The Federal Supreme Court dealt in detail with the question of whether UberX, UberBlack, UberVan and UberGreen drivers are employed by Uber B.V. and are therefore liable to AHV. In addition, the Federal Supreme Court had to decide whether Uber Switzerland GmbH was a Swiss branch of the Dutch Uber B.V..
The Federal Supreme Court confirmed the lower court's finding that the Uber drivers were engaged in gainful employment. It dealt in detail with the distinction between self-employment and employment (see E. 6.3 on the general requirements). First and foremost, the economic circumstances between the parties were decisive for the assessment, taking into account the overall assessment of the circumstances.
Thus, the lower court was entitled to assume that the relationship between the Uber drivers and the company was one of dependent gainful employment on the basis of various features. These characteristics include the issuing of far-reaching instructions, compliance with which is monitored by the company via the app (GPS tracking option), the subordinate relationship of the drivers in essential areas and the practically non-existent economic risk for the drivers. Furthermore, a case-by-case examination of the relationship with Uber B.V. only has to be carried out for drivers who employ their own salaried drivers or handle the Uber business through a legal entity.
Thus, against this background, according to the Federal Supreme Court, Uber B.V. is the employer of the "typical" UberX, UberBlack, UberVan and UberGreen drivers. Furthermore, the Federal Supreme Court considered that the conditions for the assumption of a permanent establishment of Uber B.V. in Switzerland (at the address of Uber Switzerland GmbH) were met. This was because the Dutch company had at least partially performed activities there and had had de facto power of disposal over the permanent installations and facilities there since 2014.
For the Federal Supreme Court, this means that the company, as an employer with a permanent establishment in Switzerland, is obliged to pay AHV contributions, irrespective of the nationality of the drivers.
(cf. judgment 9C_70/2022 of 16 February 2023)