While the EU Commission is supportive of the platform economy, in recent years it has repeatedly stated that it is keen for platform workers to be better protected. The previous Commission considered broadening the definition of what a worker is, so as to include platform workers within the scope of directives such as the 2019 directive on transparent and predictable working conditions. For a number of reasons, this proposal was not adopted and the self-employed remain side-lined. Commissioner Vestager gave us a hint as to what the current Commission’s approach could be during her speech on October 2019, when she stated that gig economy workers should be allowed to collectively bargain for their rights, and that collective agreements, even if negotiated by self-employed workers, would not constitute unlawful cartels.
What was then a mere statement of intent is now becoming a formal process. On 30 June, the Commission launched a public consultation “to ensure that EU competition rules do not stand in the way of collective bargaining for those who need it”. A section entitled “how to address challenges around the situation of self-employed individuals offering services through online platforms” forms part of the wider public consultation on the Digital Services Act, which runs until 8 September 2020. As the press release reminds us, collective bargaining with employees falls outside of the scope of application of the EU competition rules. Whether self-employed people could bargain collectively on topics such as compensation is a more controversial issue, both at EU and national level (and even beyond the EU, for example in the US). Through this formal process, the Commission wants to “assess whether it is necessary to adopt measures at EU level in order to address the issue and improve the working conditions of the platform workers”. The Commission further states that “the consultation is not intended to address the criteria by which persons providing services on such platforms are deemed to have one or the other legal status”. This indicates that the Commission is increasingly aligned with those amongst academics and policy makers who advocate for a more pragmatic approach to the issue of platform workers, moving away from the complex classification debate (i.e. are platform workers employees or self-employed? See here for our analysis of the latest case law on the issue) and favouring ways to give such workers more rights – or new tools to acquire these – irrespective of their legal status.
A June 2020 briefing to the European Parliament’s employment committee appears to support the Commission's view, calling for EU competition rules to be adjusted in order to expand the definition of worker.
What can we expect from the new EU process ?
Article 101 of the Treaty of the European Union (“TFEU”) prohibits anti-competitive agreements and decisions of associations of “undertakings” that restrict competition within the EU's Single Market. The Court of Justice of the European Union (“CJEU”) has consistently interpreted the term “undertaking” as including self-employed people, with the result that agreements that they enter into (such as in relation to collective bargaining) may be rendered void by the EU competition rules.
At this stage, it is unclear what form of legal instrument the Commission will use to address this issue. If the Commission issues a communication, this will only bind the Commission itself (i.e. such a communication would prevent the Commission from investigating collective bargaining agreements entered into by the “bogus” self-employed workers). However, if the EU Commission decides to address this issue through the introduction of EU legislation (i.e via a Regulation / Directive), this would have the effect of binding not only the Commission, but also the EU institutions and the national competition authorities in all of the member states. When launching this public consultation, the Commission noted that the biggest challenge relates to defining the scope of the self-employed who should be allowed to participate in collective bargaining: it highlights that self-employed activities are “very diverse” and “they can cover a wide range of activities and their situation varies during time.” However, we can expect more clarity in autumn 2020, when the Commission will publish its inception impact assessment setting out the initial options for future actions.
In any case, the CJEU will ultimately have the last word on whether it is appropriate to diverge from its established line of case law in order to provide enhanced protection to a specific category of self-employed individuals offering services through online platforms. However, a case dating from 2014 indicates that the CJEU may be open to a more nuanced interpretation of “undertaking”. In FNV Kunsten Informatie en Media v Staat der Nederlanden, the CJEU stated that a collective labour agreement involving service providers may be exempt from Article 101 TFEU regarded if such providers are “in fact ‘false self-employed’, that is to say, service providers in a situation comparable to that of employees.” Further, it noted that “the status of ‘worker’ within the meaning of EU law is not affected by the fact that a person has been hired as a self-employed person under national law, for tax, administrative or organisational reasons, as long as that persons acts under the direction of his employer as regards, in particular, his freedom to choose the time, place and content of his work… does not share in the employer’s commercial risks… and, for the duration of that relationship, forms an integral part of that employer’s undertaking, so forming an economic unit with that undertaking”. Arguably, these conditions are fulfilled in relation to certain platform workers.
It will be a long road
Whatever comes out of the process will only be a first step. Any changes in the Commission’s application of competition law will represent a significant initial shift in approach but many other steps will need to be taken before collective bargaining can become a reality for self-employed platform workers. At present, collective bargaining is regulated at local level across the EU, which often results in the enforcement of narrow definitions and strict conditions for their negotiation and conclusion. In Belgium for example, the local laws on collective bargaining agreements only apply to employers and to workers (defined by reference to “providing work under the authority of another person”, thus excluding the self-employed) and only some organisations have the right to enter into collective bargaining agreements. This means that platform workers would need to “find a home” with one of the existing and recognised trade unions – which may be a challenge for various reasons – or create their own organisation and get it registered, which could be equally challenging. Germany allows for self-employed workers to participate in a collective bargaining process, if they are economically dependent and socially comparable to employees, but the application of this provision to gig workers remains untested.
The issues raised above are of course only problematic if we consider collective bargaining agreements as agreements which produce legal effects for large groups of employees, without the need for each employee to be part to the agreement. There are many collective bargaining agreements which are signed outside of any legal framework. While these are not enforceable in the same way, they can still produce some (limited) legal effects (i.e. the so called “global framework agreements” which are concluded between multinational employers and global trade unions).
Some EU member states are already ahead of the Commission, having taken steps towards the acceptance of some form of collective bargaining for platform workers, irrespective of their individual legal status. In France for example, the 2016 El Khomri law confers a number of labour rights to self-employed platform workers (i.e. the right to strike, the right to collective organisation, protection against workplace accidents and the right to training). More recently, the 2019 “Loi d’Orientation des Mobilités” act introduces additional rights for drivers only and launches the concept of the “charter of rights” (not a collective bargaining agreement per se, but getting closer), which will contain further details on working conditions for drivers, how the above rights will effectively be implemented, quality control and additional benefits for drivers (See here and here for more background information on these laws).
ETUC and other trade unions are supportive of the proposal but dissatisfied with the process, as they claim that a consultation was not strictly required and is likely to result in delaying any concrete action by several years. It seems probable that political / business sensitivities led to the Commission choosing this pathway, instead of opting for a quicker change in policy. While many employer associations (i.e. Business Europe) are supportive of the collective bargaining route, it is unlikely to be welcomed by all parties – in particular certain online platforms. Beyond the EU, the ILO and the Council of Europe already indicated that self-employed workers should be entitled to collective bargaining.
This blog post was co-authored by Sarah Gallagher, Tommaso Ciorra and Laura LLangozi.
The Commission launched a public consultation “to ensure that EU competition rules do not stand in the way of collective bargaining for those who need it”