Introduction
On December 9, 2021, the Commission published its Draft Guidelines on the application of EU competition law to collective agreements regarding working conditions of solo self-employed people (the “Draft Guidelines”).[1] The Draft Guidelines, along with a proposal for a directive[2] and a communication,[3] form part of a broader package aimed at improving the working conditions of persons operating on digital labor platforms.[4]
Background
Self-employed persons risk infringing Article 101 TFEU if they engage in collective bargaining because they constitute “undertakings” under competition law, making unionization a form of collusion between independent businesses. While the Court of Justice has held that collective agreements by trade unions negotiating on behalf of self-employed members comparable to workers fall outside the scope of Article 101 TFEU, uncertainty as to the status of self-employed persons remains.[5] Recent developments, such as an increase in subcontracting and outsourcing, the digitization of the production process and the rise of online platform economies, have exacerbated the need for clarity on the application of Article 101 TFEU to self-employed persons.
Competition law no longer an excuse for (platform) employers’ reluctance to negotiate decent working conditions
The Draft Guidelines exclude collective agreements by and with solo self-employed persons regarding their working conditions from the application of competition law’s prohibition of restrictive agreements between undertakings.
The Draft Guidelines apply to all collective agreements and negotiations between certain categories of solo self-employed people and their counterparties, to the extent that they concern their working conditions, including remuneration. They extend to existing collective agreements and to necessary and proportionate coordination between parties on the negotiating side prior to concluding the collective agreement. However, collective agreements under which solo self- employed persons decide not to provide services require an individual assessment.
The Draft Guidelines clarify that, firstly, collective agreements by solo self-employed persons who are in a situation comparable to workers fall outside the scope of Article 101 TFEU. This relates mainly to three categories of solo self-employed persons that are in a situation comparable to workers, and—irrespective of their classification under national law—therefore fall outside the scope of Article 101 TFEU: solo self-employed persons who are (i) economically dependent on one counterparty; (ii) working “side by side” with workers performing same or similar tasks;[6] and (iii) working through digital labor platforms.[7]
Secondly, the Commission will not intervene against collective agreements regarding working conditions of solo self-employed persons, which potentially fall within the scope of Article 101 TFEU, where solo self-employed people are in a weak bargaining position and unable to influence their working conditions, despite not being in a situation comparable to workers. Agreements potentially falling within this category include circumstances where national law grants solo self-employed people the right to collectively bargain or excludes them from the scope of competition law.[8]
Conclusion
The Draft Guidelines are a necessary piece of the Commission’s broader measures aimed at improving working conditions in digital platform working relationships.[9] While the Commission’s initiative to provide legal certainty for collective bargaining to all solo self-employed persons targets no particular industry sector, its focus on online platform economies transpires from numerous hypothetical examples in the guidelines relating to online delivery services and ridesharing platforms.
Importantly, however, the guidelines reflect the Commission’s enforcement priorities and do not introduce harmonization in the social sector, where competences remain national to a large extent. The Commission aims to publish the final version of the guidelines in the second quarter of 2022.
Editors: Conor Opdebeeck-Wilson and Thorsten Schiffer
[1] Annex to the Communication from the Commission on Guidelines on the application of EU competition law to collective agreements regarding the working conditions of solo self-employed persons, COM/2021/8838 (“Draft Guideline”); Commission Press Release IP/21/6620, “Antitrust: Commission invites comments on Draft Guidelines about collective agreements regarding the working conditions of solo self-employed people,” December 9, 2021.
[2] Proposal for a Directive of the European Parliament and of the Council on improving working conditions in platform work, 2021/0414.
[3] Communication from the Commission on better working conditions for a stronger social Europe: harnessing the full benefits of digitalisation for the future of work, COM/2021/761.
[4] Commission Press Release IP/21/6605, “Commission proposals to improve the working conditions of people working through digital labour platforms,” December 9, 2021.
[5] FNV Kunsten Informatie en Media v. Staat der Nederlanden (Case C-413/13) EU:C:2014:2411; Albany International BV v. Stichting Bedrijfspensioenfonds Textielindustrie (Case C-67/96) EU:C:1999:430; Draft Guidelines, para. 5.
[6] Solo self-employed persons working “side by side” with workers are considered to be comparable to workers because they are under the direction of the same counterparty, and neither bear any commercial risk, nor enjoy any independence, in the performance of their services.
[7] Solo self-employed persons operating on digital labor platforms are comparable to workers because they are often dependent on the platform to operate and unable to negotiate their working conditions.
[8] Such as agreements regarding remuneration for authors and performers under Directive of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC, OJ L 130 of May 17, 2019, p. 92–125 (the Copyright Directive).
[9] Commission Press Release IP/21/6605, “Commission proposals to improve the working conditions of people working through digital labour platforms,” December 9, 2021.