The European Commission recently published Draft Guidelines on the application of competition law to collective agreements of self-employed persons.[1] These guidelines are part of a proposed package to improve working conditions of people doing platform work. The number of self-employed workers has risen considerably in recent years, owing partially to the introduction of the ‘platform work’ business model used by businesses such as Uber, Deliveroo, etc. These platform work agreements allow for flexible work arrangements, but they threaten already adopted collective labor agreements because they don’t have to adhere to their stricter conditions. The status of these platform workers has been deliberated in many national jurisdictions and their status of self-employed or employee is an ever-growing topic for litigation.[2] In some cases, the nature of self-employed work is in practice barely different from the work done by employed workers. This working arrangement raises concerns over the position of these self-employed workers; their bargaining power is significantly lower and their working conditions are often worse than those of their employed counterparts. They also face more uncertainty about their income due to the use of temporary contracts. According to studies, self-employed persons have significantly more risk of living in poverty.[3]
Usually, labor agreements fall outside the scope of EU competition law, but this is not the case for these platform workers. According to article 101 TFEU, self-employed persons (platform workers) are considered undertakings, so attempts to negotiate pay or working conditions would risk infringing competition law.[4] These draft guidelines aim to balance these issues by allowing self-employed people to conclude collective bargaining agreements. The Commission has identified circumstances in which such collective bargaining agreements could be exempt from article 101 TFEU.
What do the draft guidelines address?
The guidelines address self-employed people’s right to collective bargaining when they are in a comparable position to workers or when there is an imbalance in the bargaining position towards their ‘employer’ or counterpart. The exemption provided in these guidelines goes only as far as the regulation of working conditions. The guidelines provide an example: territory allocation for delivery services does not regulate working conditions and would constitute a market-sharing agreement, thus falling outside the exemption provided by the guidelines.[5]
The draft guidelines go into the circumstances that would determine whether a self-employed person is in a ‘comparable position to workers’ or in an ‘imbalanced negotiating position’. The circumstances of self-employed persons with ‘comparable position to workers’ can even be such that they cause them to be referred to as ‘false’ self-employed persons; people who work under the same conditions as regularly employed workers with a similar level of supervision and working under the same instructions as a regular employee.[6]
The guidelines outline three categories in which a worker can be considered to be in a comparable position to workers. These are self-employed people whose income depends at least 50% on another party and are therefore considered economically dependent; self-employed people working side-by-side with employed workers; and self-employed persons providing their labor through digital platforms. The latter category addresses concerns over the ever-growing number of gig-workers and the calls to regulate the market and offer adequate working conditions to these workers.
The second category of ‘self-employed in an unbalanced negotiating position’ includes self-employed people that are entitled by national or EU legislation to collective bargaining. For example, self-employed authors and artists under EU Copyrights Directive are entitled to collectively negotiate without the Commission’s interference.[7] Another category of self-employed in an unbalanced position is workers who are negotiating with counterparties of a certain economic strength. The draft guidelines outline a turnover threshold for a counterparty to be considered of a certain economic strength – their annual aggregate turnover exceeds €2 million or their staff exceeds 10 workers. This approach has been criticized by the European Trade Union Syndicat, who stated that “making the fundamental right to collective bargaining of self-employed workers conditional upon thresholds such as the size or turnover of the employer, as proposed in the guidelines, is unacceptable. Collective agreements establish a level playing field for both workers and businesses, which must not be undermined by allowing for exceptions for small enterprises” and that “competitiveness in the EU’s social market economy must never be based on driving down wages.”[8]
Other approaches to protect platform workers have been suggested. Some economists point out that the Commission should not be too quick to allow collective bargaining for self-employed persons because of the adverse anti-competitive effects these agreements could potentially have.[9] The benefits of self-employment, such as the flexibility that it offers, could be affected by the conclusion of collective labor agreements.[10] These agreements may further create barriers to entry for outsiders who rely on that flexibility.[11] However, these economists focus mainly on the economic anti-competitive effects, while the purpose of the guidelines is to expand protection for platform workers, specifically those in weaker bargaining positions.[12]
[1] COMMUNICATION FROM THE COMMISSION Draft Guidelines on the application of EU competition law to collective agreements regarding the working conditions of solo self-employed persons.
[2] ‘Appeals court finds Helpling cleaners are temporary workers’ (Dutch News, 21 September 2021) <https://www.dutchnews.nl/news/2021/09/appeals-court-finds-helpling-cleaners-are-temporary-workers/> accessed 13 December 2021; Rob Davies ‘Deliveroo riders suffer setback in court battle for right to unionise’ (The Guardian, 24 June 2021) <https://www.theguardian.com/business/2021/jun/24/deliveroo-riders-suffer-setback-in-court-battle-for-right-to-unionise> accessed 13 December 2021.
[3] CBS, ‘Statistical Trends – Risk of poverty increased’ (CBS, March 2019); Sahra Abdille Frsa, ‘Poverty while employed has effectively replaced unemployment as a result of the gig economy’ (RSA, 9 October 2019) <https://www.thersa.org/blog/2019/10/poverty-while-employed-has-effectively-replaced-unemployment-as-a-result-of-the-gig-economy> accessed 13 December 2021.
[4] Draft Guidelines (n 1), para 9.
[5] Draft Guidelines (n 1), p 6.
[6] Draft Guidelines (n 1), §2; Case C-413/13 FNV Kunsten [2014] ECLI:EU:C:2014:2411.
[7] Ibid., para 37.
[8] ETUC on competition law and collective agreements for self-employed (ETUC, 9 December 2021) <https://www.etuc.org/en/pressrelease/etuc-competition-law-and-collective-agreements-self-employed> accessed 13 December 2021.
[9] Stéphane Dewulf ‘Collective bargaining agreements for the self-employed’ (Oxera, 10 February 2021) <https://www.oxera.com/insights/agenda/articles/collective-bargaining-agreements-for-the-self-employed/> accessed 13 December 2021.
[10] Ibid.
[11] Ibid.
Corax Foundation 