Questions and answers: Commission invites comments on draft Guidelines on collective agreements of self-employed people
-
-What is the scope of the draft Guidelines and who is covered by them?
The draft Guidelines are part of a 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. The draft Guidelines cover self-employed people who have little influence over their working conditions either because: a) they are in a situation comparable to workers; or b) because they are in an imbalanced negotiating position towards their counterparty. The draft Guidelines explain under which circumstances self-employed may be considered to fall into the first or the second category. Both categories cover only solo self-employed persons, namely, service providers who do not have any employees and who rely primarily on their own personal labour for the provision of the services. The undertakings/counterparties of these categories of solo self-employed persons are also covered when negotiating with the latter their working conditions.
The draft Guidelines cover all collective negotiations/agreements between the solo self-employed persons and their counterparty/-ies to the extent that such agreements concern the working conditions of the solo self-employed persons.
Negotiations or agreements concerning directly or indirectly the terms and conditions imposed on consumers are not covered by the draft Guidelines. Similarly, the draft Guidelines do not cover agreements that are not made with a counterparty. The draft Guidelines include relevant examples to illustrate the scope of the Guidelines.
-
-Which categories of solo self-employed persons are considered to be in an unbalanced negotiating position, according to the draft Guidelines?
The draft Guidelines identify two categories of such solo self-employed persons:
-
-solo self-employed persons facing an imbalance in bargaining power due to negotiation with counterparties of a certain economic strength. This is the case, in particular, when solo self-employed persons are providing their services to counterparties, which represent the whole sector or industry. The same stands for the cases where solo self-employed persons deal with counterparty/-ies whose annual aggregate turnover equals or exceeds €2 million or their staff headcount exceeds 10 workers (individually or jointly).
-
-solo self-employed persons entitled to bargain collectively pursuant to national or EU legislation. In certain cases, the national or EU legislator has identified situations where solo self-employed may need access to collective bargaining in order to address their unbalanced negotiating position. In particular, some national laws, in pursuit of social objectives, either explicitly grant the right to collective bargaining to certain professions or economically dependent self-employed or exclude them from the application of national competition law. The EU Copyright Directive also foresees the possibility of collective bargaining for authors and performers in order to ensure a fair and appropriate remuneration for the exploitation of their works.
-
-Which categories of solo self-employed persons are considered by the draft Guidelines as “comparable to workers”?
On the basis of the Albany and FNV Kunsten judgments, the draft Guidelines provide that the collective agreements regarding the working conditions of solo self-employed persons who are in a situation “comparable to that of workers” fall outside the scope of Article 101 TFEU. The draft Guidelines identify three categories of such solo self-employed persons:
-
-economically dependent solo self-employed persons, i.e. solo self-employed providing their services exclusively or predominantly to one counterparty. In order to facilitate this assessment, the draft Guidelines provide that solo self-employed who depend on one counterparty for at least 50% of their work-related income shall be considered as economically dependent.
-
-solo self-employed working “side-by-side” with workers, i.e. solo self-employed who provide the same or similar tasks “side-by-side” with workers working for the same counterparty.
-
-solo self-employed persons providing their services to or through a digital labour platform. This category mirrors the increasing trend of national jurisprudence and newly introduced laws recognising the economic dependence of these solo self-employed on digital labour platforms. The term “digital labour platform” is defined in the same way in the draft Guidelines and the Commission proposal for a Directive on improving working conditions in platform work.
-
-What is the difference between the categories excluded from Article 101 TFEU and those where the Commission commits not to intervene?
Certain collective agreements are considered to fall outside the scope of Article 101 TFEU in so far as certain conditions are fulfilled. These are the agreements on working conditions of solo self-employed who can be considered to be in a position comparable to workers (e.g. economically dependent self-employed).
Some solo self-employed may not be in a position comparable to workers, but may nevertheless have little influence over their working conditions (such as e.g. artists and performers negotiating a fair remuneration in line with the Copyright Directive). Collective agreements on the working conditions of such self-employed, could still fall under the scope of Article 101 TFEU, but the Commission here commits not to act against any such agreements.
-
-I am a musician and use my own instrument whenever I play for an orchestra as self-employed, can I use these Guidelines?
Solo self-employed who use certain goods or assets as an ancillary means for the provision of services fall under the scope of the draft Guidelines. For example, musicians who use their own musical instrument or cleaners who bring their own accessories (such as specific clothes or cleaning products) in order to provide their services would be covered by the scope of the draft Guidelines. However, sharing or exploitation of goods or assets (e.g. rental of housing) or the (re-)sale of goods/services (e.g. resale of automotive parts) do not fall under these draft Guidelines
-
-How do these draft Guidelines relate to the promotion of social policy?
The draft Guidelines do not introduce any social measures and they will not change the definitions of the terms “worker” or “self-employed person” under national law. Also, they do not affect the possibility for individuals, in particular false self-employed, to challenge the designation of their employment status through administrative or judicial procedures and be reclassified as workers by national authorities or courts.
The draft Guidelines only explain how the Commission will apply EU competition rules to collective agreements on the working conditions of some self-employed persons in a weak position. The prerogatives of the Member States in social policy or the autonomy of the social partners will not be affected.
For More Information
Press release: Draft Guidelines on the application of EU competition law
Questions and answers: improving working conditions in platform work
Press release: improving working conditions in platform work
Factsheet: improving working conditions in platform work
Proposal for a Directive on improving the working conditions in platform work