New Guidelines on collective agreements for self-employed persons and competition law

The Commission has recently published new Guidelines on the application of competition law to collective agreements for self-employed persons (the “Guidelines”), seeking to provide them with greater protection in a context of economic and social uncertainty.

 Collective agreements for self-employed persons and their compatibility with article 101 TFEU

 The new Guidelines shed more light on the compatibility of collective agreements with the prohibition of anticompetitive agreements, first established by the CJEU in Albany.

 In that case, the CJEU ruled that agreements concluded in the context of collective bargaining between employers and workers fall outside the scope of article 101 TFEU, when by their nature and purpose they aim to improve working conditions.

 This judgement covered collective agreements for employees but not for the self-employed (considered undertakings for competition law purposes). That is why the CJEU had to rule again on this matter (FNV Kunsten). The CJEU extended the Albany doctrine to collective agreements involving the “false self-employed,” who were considered to be in a situation comparable to that of employees. However, there were still many self-employed persons whose involvement in collective agreements raised numerous questions from the perspective of competition law. Also, classifying a worker as “false self-employed” required a court judgement, which conditioned the application of competition rules and increased legal uncertainty.

 These problems have been compounded by the recent trend towards subcontracting and outsourcing business and personal services, as well as the increasing demand for personal services and work through online platforms. In view of this situation, the Commission decided to publish new Guidelines to clarify two aspects. On the one hand, which collective agreements fall outside the scope of article 101 TFEU and, on the other hand, in which cases the Commission will not intervene even if they do fall within the scope of article 101 TFEU.

 General scope of the Guidelines

 According to the new Guidelines, collective agreements regarding the working conditions of solo self-employed persons fall outside the scope of article 101 TFEU.

 For these purposes, solo self-employed persons are those who do not have an employment contract or who are not in an employment relationship, and who rely primarily on their own personal labor for the provision of the services concerned. Those engaged in asset exploitation and the resale of goods and services are excluded from this category.

 The Guidelines cover agreements resulting from collective negotiations between solo self-employed persons and their counterparties aimed at improving the working conditions of the former. In this sense, working conditions include remuneration, working time and working patterns, holiday, leave, workplace, health and safety, insurance and social security, and conditions under which solo self-employed persons are entitled to cease providing their services. Collective agreements or clauses going beyond these matters will be subject to competition law.

 Collective agreements outside the scope of article 101 TFEU

 Based on the case law of the CJEU and national courts, the Guidelines identify three categories of self-employed persons considered to be in a situation comparable to that of workers. Collective agreements concluded by the following persons are thus excluded from the scope of article 101 TFEU:

•  Economically dependent solo self-employed persons.

 These are those who earn at least 50% of total work-related income from a single counterparty. Their collective agreements are covered by the exemption because they do not determine their conduct independently on the market and are largely dependent on their counterparty, forming an integral part of its business.

•  Solo self-employed persons working “side-by-side” with workers.

 These are self-employed persons who work in close collaboration with workers of the same counterparty and who perform the same or similar tasks. They provide their services under the direction of their counterparty and do not bear the commercial risks of the counterparty’s activity. Nor do they enjoy independence as regards the performance of the economic activity concerned. This somewhat alleviates the legal uncertainty mentioned above and allows these self-employed persons to participate in collective agreements without the need for a court to reclassify them as “false self-employed persons.”

•  Solo self-employed persons working through digital labor platforms.

 They are dependent on digital platforms to reach customers and often face “take it or leave it” work offers, with little or no scope to negotiate their working conditions, including their remuneration.

 Collective agreements against which the Commission will not intervene even if they fall within the scope of article 101 TFEU

The Commission also seeks to protect collective agreements concluded by certain self-employed persons whose situation is not comparable to that of workers but are nonetheless in a weak negotiating position vis-à-vis their counterparties. That is why the Commission will not intervene against the collective agreements concluded by:

• Solo self-employed persons with counterparties of a certain economic strength.

Where the counterparty exceeds certain thresholds (representing the whole sector or industry or turnovers exceeding EUR 2 million), it is understood that there is an imbalance in bargaining power that can be remedied through collective agreements.

• Self-employed persons pursuant to national or EU legislation.

Finally, the Commission will not intervene against collective agreements concluded by self-employed persons recognized as such under national legislation.

Conclusions

These Guidelines seek to remove competition law barriers to improving the working conditions of a large number of workers in the EU. The rapidly changing labor market and the economic uncertainty required the Commission’s intervention.

The major problem now lies in the practical implementation of these Guidelines. On the one hand, this soft law instrument is not binding for the courts of the Member States. On the other hand, self-employment is characterized by great heterogeneity. This may result in a certain mismatch between the abovementioned categories and real-life cases, leaving some situations uncovered.