Antitrust: “Dear employment law, do you copy?”

Author: Andrej Poruban, Alexander Dubček University of Trenčín

The issue of solo self-employed workers enjoying labour rights has recently become a hot topic within competition law, which is usually unrelated to employment. On 9 December 2021, the European Commission published draft “Guidelines on the application of EU competition law to collective agreements on the working conditions of solo self-employed people providing services". The draft Guidelines are part of a broader package also including a proposal for a Directive on improving working conditions in platform work and a Communication on harnessing the full benefits of digitalisation for the future of work. Margrethe Vestager, Executive Vice-President for a Europe Fit for the Digital Age and in charge of competition policy stated that “some solo self-employed people struggle to have a say on their working conditions” and that the draft Guidelines “aim to bring legal certainty by making clear when competition law does not stand in the way of these people‘s efforts to negotiate collectively for a better deal.”

Self-employed persons are in principle considered as ‘undertakings‘ and risk infringing Article 101 TFEU if they negotiate collectively about their fees and other trading conditions. Therefore, they are often uncertain whether they can bargain collectively. However, The Court of Justice of the European Union has already recognised (judgments C-67/96, Albany, and C‑413/13, FNV KIEM) that collective bargaining agreements between employers and their workers (including false self-employed workers) that intend to improve working conditions, including pay, fall outside the scope of EU competition law. Based on the previously case law the draft Guidelines identify three categories of such solo self-employed persons who are in a situation “comparable to that of workers”:

1. economically dependent solo self-employed persons, i.e. solo self-employed providing their services exclusively or predominantly to one counterparty for at least 50% of their work-related income,
2. solo self-employed working “side-by-side” with workers working for the same counterparty in the online and offline world,
3. solo self-employed persons providing their services to or through a digital labour platform – this term is defined in the same way in the draft Guidelines and the Commission proposal for a Directive on improving working conditions in platform work.

All citizens, organisations and public authorities were welcome to contribute to this consultation. Interested parties could submit their comments until 24 February 2022. The European Commission now assesses the input of the stakeholders with the aim to publish the final version of the Guidelines with the impact assessment report in the second quarter of 2022.

The final Guidelines, if adopted, cannot bind the EU Courts but will be binding for the European Commission in its subsequent interpretation and enforcement of EU competition rules.

In the meantime, it should be closely followed the decision of the European Committee of Social Rights in Irish Congress of Trade Unions (ICTU) v. Ireland (Complaint No. 123/2016). In principle, the Council of Europe clarified that competition law is not meant to restrict the rights to freedom of association. This approach is relied on wording of the Article 6(2) of the Revised European Social Charter of 1996:

“With a view to ensuring the effective exercise of the right to bargain collectively, the Parties undertake to promote, where necessary and appropriate, machinery for voluntary negotiations between employers or employers’ organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements.”

Freedom of association and collective bargaining are part of the fundamental rights of working people without regard to the formal definition of dependent work(er). Restrictions based on competition law should not be regarded as legitimate or necessary in a democratic society.