I. Consequences for International Businesses with Activities in Switzerland

The Swiss Federal Supreme Court has clarified in its recent decisions various legal issues related to the activities of Uber and its drivers in Switzerland which had been long disputed in legal doctrine and practice. Beyond Uber, these decisions are of far-reaching significance for many international businesses with activities in Switzerland:

• Persons who are employed via a platform are engaged in dependent gainful employment pursuant to the Old Age and Survivor’s Insurance Act (OASI Act) if they are not given any significant actual decision-making power concerning their activity and are therefore at least indirectly subordinated and bound by instructions.
• International businesses with activities in the «platform economy», even if only with a coincidental «physical» presence in Switzerland, risk to become liable for OASI contributions. According to the new Federal Supreme Court case law, it already suffices that certain accompanying or supporting actions take place in Switzerland. In particular, it is irrelevant whether these actions are quantitatively or qualitatively significant.

Thus, it is worthwhile for businesses domiciled abroad with activities in Switzerland to have the above mentioned assessed carefully, since they may face potential consequences under social security law.

II. Summary of Facts and Procedural History

The decisions of the Federal Supreme Court (9C_70/2022, 9C_76/2022 of February 16, 2023, and 9C_71/2022, 9C_75/2022 of February 16, 2023) are based on a decision of the Compensation Office of the Canton of Zurich, which determined that UberX, UberBlack, UberVan, UberGreen, and UberPop drivers in Switzerland were carrying out a dependent gainful activity for the Dutch companies Uber B.V. and Rasier Operations B.V., respectively, and that the Swiss company Uber Switzerland GmbH was their permanent establishment in Switzerland liable to pay OASI contributions. The Compensation Office held that Uber B.V. and Rasier Operations B.V., as the respective employers of the drivers, and Uber Switzerland GmbH are liable to pay social security contributions (including ancillary costs) in the amount of CHF 4,283,763.75 plus interest of CHF 991,215.35 for the year 2014.

Upon opposition by the three Uber companies, the Compensation Office initially reduced the OASI contributions owed. In the respective appeals filed with the Social Security Court of the Canton of Zurich, the three Uber companies requested that the decision of the Compensation Office shall be revoked entirely. The Social Security Court upheld Uber Switzerland GmbH’s appeals, denying its obligation to pay contributions, as Uber Switzerland GmbH is not a permanent establishment of Uber B.V. and Rasier Operations B.V. These decisions were appealed by the Compensation Office to the Federal Supreme Court.

The Social Security Court also upheld the appeals of Uber B.V. and Rasier Operations B.V. and remitted the matter to the Compensation Office. The Compensation Office had to reassess the contributions of Uber B.V. and Rasier Operations B.V. for the year 2014 after determining the relevant salaries and carrying out an individual examination of each individual relationship between Uber B.V. or Rasier Operations B.V. and their respective drivers, taking into account the finding that the activity of the drivers in 2014 qualified as employment in the sense of the OASI Act.

Both the Compensation Office on the one hand and Uber B.V. and Rasier Operations B.V. on the other hand filed appeals against these decisions with the Federal Supreme Court.

III. Findings of the Federal Supreme Court

A. Uber Drivers Are Engaged in a Dependent Gainful Activity

First, the Federal Supreme Court dealt with the question whether Uber drivers who do not employ their own drivers and do not conduct the Uber business via a legal entity are engaged in a dependent gainful activity within the meaning of the OASI Act (in other words, as employee). After a reference to its case law, the Federal Supreme Court pointed out that the qualification of new work forms, such as the so-called platform business, as independent or dependent gainful activity has been disputed among legal scholars. After an examination of the criteria developed by the Federal Supreme Court, it came to the conclusion that, in view of the far-reaching instructions issued by Uber B.V. and Rasier Operations B.V., compliance with which was controlled via the app, the subordination relationship existing in essential areas and resulting from the connection to the app, and the practically non-existent economic risk for the Uber drivers, it had to be assumed that Uber drivers were engaged in a dependent gainful activity. The Federal Supreme Court rejected Uber B.V.’s and Rasier Operations B.V.’s argument according to which a qualification of their drivers’ activity as a dependent gainful activity would infringe the principle of equal treatment of competitors, the principle of equality before the law, and economic freedom, pointing out that the decisions referred to by Uber B.V. and Rasier Operations B.V. related to different situations which were not comparable to the present case.

B. No Individual Examination Required

In a next step, the Federal Supreme Court assessed the question whether the Compensation Office indeed had to carry out an individual examination of each single relationship between Uber B.V. or Rasier Operations B.V. and their respective drivers. It answered this question in the negative, reasoning that a large number of insured persons was affected and all contractual relationships between the drivers and Uber B.V. or Rasier Operations B.V. are governed by the virtually identical documents. For this reason, the Compensation Office did not have to carry out an individual examination of each driver’s activity.

C. Uber B.V. And Rasier Operations B.V. Are Employers

Furthermore, the Federal Supreme Court addressed who should be considered as the employer of UberX, UberBlack, UberVan, UberGreen, and UberPop drivers. It stated that Uber B.V. and Rasier Operations B.V. had such extensive rights to issue instructions based on the agreed contractual provisions that the drivers appeared to significantly depend on it in terms of business management and organization. In addition, Uber B.V. is also the company which pays the salaries to the drivers. It is therefore an employer within the meaning of the OASI Act. The same applies to Rasier Operations B.V. Although the salaries of UberPop drivers were also paid by Uber B.V., the payment was made on behalf of Rasier Operations B.V., which is why the latter is considered the employer of its respective drivers.

D. Uber B.V. And Rasier Operations B.V. Have a Permanent Establishment in Switzerland

The Federal Supreme Court did not answer the question whether it had already been legally decided if Uber Switzerland GmbH, as a legal entity, is not a permanent establishment of Uber B.V. and Rasier Operations B.V., and therefore is not subject to contributions according to the OASI Act. However, the Federal Supreme Court held that it was at least reasonable to assume that the Swiss Uber company was not a permanent establishment within the meaning of Art. 12(2) OASI Act. After a detailed description of the concept of permanent establishment under social security and tax law, the Federal Supreme Court examined whether Uber B.V. and Rasier Operations B.V. have or already had a permanent establishment in 2014 (without its own legal personality) at the address of Uber Switzerland GmbH in Zurich, where a so-called «Greenlight Center» has existed for years. The Federal Supreme Court held that both Dutch companies have a permanent establishment at this address provided that (1) Uber B.V. or Rasier Operations B.V. could dispose over the permanent facilities and equipment there and (2) at least partially, its business activities took place there.

With a view to the first requirement, the Federal Supreme Court considered that, since 2014, Uber Switzerland GmbH has permanently provided office space and personnel to the Dutch Uber B.V. at its domicile in Zurich. Although Uber B.V. is neither the owner nor the tenant of these premises, it has always been able to freely dispose of the space. According to the Federal Supreme Court, considering the contractual rights granted to Uber B.V. by Uber Switzerland GmbH, the position of Uber B.V. is not different from that of a tenant. Uber B.V.’s power even goes so far that it could grant Rasier Operations B.V. the right to use these premises. Even if joint power of disposal over the business premises with Uber Switzerland GmbH were to be assumed, this would be sufficient analog to the prevailing doctrine in international tax law. As for Rasier Operations B.V., due to the mentioned contractual rights, the same considerations apply.

With regard to the second requirement, the Federal Supreme Court held that, according to the information available on the website of Uber, before starting their activity, each potential driver had to visit the Greenlight Center, where he or she received the necessary support from experts «on the way to becoming a professional». For the completion of the registration process, drivers had to attend an information session, which also took place in Uber’s premises; in addition, the contract was signed there. The Greenlight Center is available to the drivers as a permanent contact point to which they can turn for all questions, concerns, complaints, etc. in connection with their activities. This includes personal advice, selective assistance, etc. for the drivers, whereby employees of Uber Switzerland GmbH exclusively explain the procedures established by Uber B.V. and Rasier Operations B.V., implement the decisions made by them and carry out the instructions issued by them. To assume such a business activity, according to the Federal Supreme Court, it is already sufficient «that arrangements are made there which are related to the main activity, enabling or accompanying it and subordinate in this sense, such as […] contract signings, registrations, trainings, meetings, etc., for which the drivers go to these premises» (free translation). It follows from this that the business activities of Uber B.V. and Rasier Operations B.V. take place at least in a part at the Greenlight Center in Zurich. The fact that these are not quantitatively or qualitatively significant, but incidental activities, is irrelevant, which is why the second requirement is also met according to the Federal Supreme Court.

As a result, the appeals of Uber B.V. and Rasier Operations B.V. were dismissed. The appeals of the Compensation Office were partially upheld by the Federal Supreme Court, with the matter being remitted to the administration for a new ruling regarding the year 2014 (contributions, ancillary costs, and interest).