On January 6, 2021, the Commission published an inception impact assessment[1] on its latest policy initiative: allowing for more collective bargaining under EU antitrust rules to improve working conditions for self-employed individuals, in particular in relation to digital platform workers (e.g., food delivery services).[2] On March 5, 2021, the Commission launched a public consultation inviting all interested parties to submit feedback on the initiative until May 28, 2021.[3] The proposed policies, which may be implemented through a legislative or non-legislative instrument, are set to be adopted in the fourth quarter of 2021.[4]
The self-employed and antitrust rules
The Court of Justice has long recognized that collective bargaining between employees and employers is not caught by EU competition rules because employees are not considered “undertakings” under EU law.[5] By contrast, self-employed individuals may be considered “undertakings” such that agreements between them on working conditions, including fee arrangements, risk violating Article 101 TFEU.[6]
The Commission’s initiative notes that this distinction between employees and self-employed has become “increasingly blurred” as a result of digitalization and the demand for greater flexibility in the labor market. Individuals engaging in both platform work and those using individual commercial service contracts in the offline economy face challenges ensuring representation, fair earnings, and access to social protections. The Commission considers that self-employed workers, like traditional employees, are increasingly dependent on the counterparty economically. In the absence of EU intervention, the lack of clarity surrounding self-employed individuals’ legal status under antitrust rules may have a “chilling effect” preventing them from bargaining collectively.
Four policy options to help support the self-employed
The initiative explores four policy options depending on the type of self-employed persons covered. The first (and narrowest) option exempts only those self-employed workers providing their own labor (online and on-location) through digital platforms. The second option also includes those providing their own labor to “professional customers,” e.g., independent contractors and freelancers operating in the offline economy. This option sets a minimum size threshold for the counterparty with whom the self-employed may bargain collectively—to prevent the balance of negotiation power tilting in favor of the self-employed. The third option excludes self- employed individuals in “regulated/liberal” professions. The fourth (and widest) option covers both types of self-employed person (as per Option 2 and 3) but without a minimum size threshold or excluded professions.[7]
| Option 1 | Option 2 | Option 3 | Option 4 | |
| Type of self- employed individual | Limited to self- employed platform workers. |
Platform workers (as in Option 1) and individuals serving “professional customers.” |
Same as Option 2, but excludes “regulated/ liberal professions.” | Same as Option 2. |
| Counterparty Size | No size threshold. | Minimum size threshold. | No size threshold. | No size threshold. |
Implications for platform workers
All four policy options seek to provide self-employed workers with the assurance that they can form unions to negotiate their earnings, social protection, and other labor conditions with digital labor platforms (e.g., Uber and Deliveroo), without the risk of breaching EU competition law. Despite the ambiguity around collective bargaining rules, platform workers are already joining unions across Europe for this purpose—some of whom have already managed to negotiate agreements with digital labor platforms (e.g., in Norway[8] and Italy[9]). Some Member States have actually clarified that platform workers can collectively negotiate without breaching national competition laws.[10]
Conclusions
The initiative is reflective of the general trend of the Commission seeking to address broader policy objectives through competition law, for instance to achieve environmental objectives.[11] While it is subject to debate whether designated labor regulations are not a more effective tool to improve the welfare of self-employed individuals, providing further guidance on the application of EU antitrust rules is a welcome development.
[1] Commission Inception Impact Assessment, “Collective bargaining agreements for self-employed – scope of application of EU competition rules,” available at: www.ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12483-Collective-bargaining-agreements-for-self-employed-scope-of- application-EU-competition-rules. An inception impact assessment sets out the Commission’s plans for new policy initiatives.
[2] This initiative forms part of the Commission’s wider public consultation on the adoption of the Digital Services Act package, which aims to strengthen user protection and facilitate competition in the EEA through further rules and obligations for digital platforms. See, Communication from the Commission, “Shaping Europe’s Digital Future,” February 19, 2020, available at: www.ec.europa.eu/info/sites/info/files/communication-shaping-europes-digital- future-feb2020_en_4.pdf.
[3] Commission Press Release IP/21/988, “Competition: Commission invites stakeholders to provide comments on the application of EU competition law to collective bargaining agreements for self-employed” March 5, 2021, available at: https://ec.europa.eu/commission/presscorner/detail/en/ip_21_988.
[4] The Commission envisions implementing the proposed policies through a Council Regulation or Commission Communication.
[5] Jean Claude Becu (Case C-22/98) EU:C:1999:419 (the Court of Justice held that workers are incorporated into the undertaking that employs them for the duration of their work contract, thus, they do not independently constitute undertakings within the meaning of EU competition law); and Albany International BV v. Stichting Bedrijfspensioenfonds Textielindustrie (Case C-67/96) EU:C:1999:430 (the Court of Justice held that collective bargaining between workers and employees falls outside the scope of EU competition law as the social objectives pursued by these agreements would be seriously undermined otherwise).
[6] Indeed, collective agreements between self-employed persons to obtain better fees or working conditions from their counterparty may reduce competition, and amount to fixing the price or other conditions of labor.
[7] The initiative does not specify a number of details, including the scope of the terms “professional customer,” “regulated/liberal profession,” and “digital labor platform,” as well as the possible minimum size thresholds.
[8] On September 27, 2019, delivery couriers on the app Foodora (the food delivery platform) in Norway reached the first ever collective bargaining agreement between a food delivery platform and a union. The agreement guarantees couriers a minimum wage, equipment allowance, and a pension scheme. See, “Norway: Latest developments in working life Q3 2019,” November 25, 2019, available at: www.eurofound.europa.eu/ga/publications/article/2019/norway- latest-developments-in-working-life-q3-2019.
[9] On September 16, 2020, a coalition of food delivery companies (Uber, Deliveroo, Glovo, Just Eat, and others) reached an agreement with a union in Italy that would provide platform workers with a minimum wage and bonuses. This agreement was denounced by other unions for failing to improve the working conditions of couriers which led to Just Eat announcing its withdrawal from the coalition and its intention to hire couriers as employees in 2021. See, “Collective voice for platform workers: riders’ union struggles in Italy,” December 10, 2020, available at: www.socialeurope.eu/collective-voice-for- platform-workers-riders-union-struggles-in-italy.
[10] The Dutch competition authority published guidance on lawful pricing arrangements between self-employed workers in November 2019. See, “Guidelines on price arrangements between self-employed workers,” November 26, 2019, available at: www.acm.nl/en/publications/guidelines-price-arrangements- between-self-employed-workers.
[11] See, the Commission’s call for contributions on the “Competition Policy Supporting the Green Deal,” October 13, 2020, available at: www.ec.europa.eu/ competition/information/green_deal/call_for_contributions_en.pdf (we reported on this development in an Alert Memorandum of October 19, 2020).