In an earlier blog we addressed the broadening of the possibilities for collective agreements among self-employed persons by ACM. That subject is still topical and is now also on the agenda of the European Commission (the “Commission”): on 9 December 2021, the Commission published draft guidelines on the application of EU competition law to collective agreements regarding the working conditions of solo self-employed workers (the “Draft Guidelines”). In this blog we address the latest developments in the field of collective agreements among self-employed persons and provide an overview of the main points of the Commission’s Draft Guidelines.
Self-employed persons and the cartel prohibition
Collective bargaining and agreements are an important instrument for self-employed persons to enforce good working conditions. In principle, however, self-employed persons are regarded as “independent economic operators” in competition law, because they determine their products, prices and services independently. In collective bargaining, self-employed persons therefore run the risk of violating the cartel prohibition of Article 6 of the Mededingingswet (Competition Act).
But there are situations in which competition law does not apply to collective bargaining by self-employed persons, and cases in which ACM will not impose fines on self-employed persons. ACM has therefore published the Guidelines on Price Arrangements among Self-Employed Persons (the “Guidelines”). Those situations are explained in more details in those Guidelines. The competition rules do not apply, for instance, to self-employed persons who actually work “side-by-side” with workers. In that case self-employed persons may collectively bargain and make agreements with their clients. This policy of ACM has been confirmed in European and Dutch case law.
Developments in collective agreements among self-employed persons
The discussion about cartel prohibitions and the possibilities for self-employed persons to make collective agreements did not come to an end on the publication of ACM’s Guidelines. In 2019, a statutory minimum rate of €16 per hour for self-employed persons was announced by the then Minister of Social Affairs and Employment. That legislative proposal ran aground in mid-2020, however.
The position of self-employed persons within competition law is in the spotlight not only in the Netherlands. The special position of self-employed persons is already recognised in a number of national laws of EU Member States. In Germany, for instance, Article 12a of the Tarifvertragsgesetz (Collective Bargaining Act) provides that self-employed persons have the right to negotiate collectively. Also in Spain, self-employed persons may make collective agreements if the requirements of Article 11 of the Ley 20/2007, de 11 de julio, del Estatuto del trabajo autónomo (the Act 20/2007) are met.
An increasing number of developments can also be identified at a European level in the field of collective agreements for self-employed persons. The European labour market has changed fundamentally in recent years under the influence of (i) the trend towards subcontracting and outsourcing of business activities and personal services; and (ii) the digitisation of production processes and the rise of the online platform economy. In the European Union, more than 28 million people currently work on digital work platforms, 5.5 million of whom are self-employed. The European Commission therefore recently proposed various measures to better regulate the rights of workers in the platform economy.
As part of its plans to regulate the platform economy, the Commission has drawn up a package of guidelines, including the Draft Guidelines. In those guidelines, the Commission proposes to exclude collective agreements entered into by self-employed persons from the scope of competition law, specifically Article 101 TFEU, in a number of cases.
Draft Guidelines on the application of EU competition law to collective agreements
The draft guidelines relate to self-employed persons who find themselves in a situation that is comparable to that of workers. The Committee identifies two specific groups in this respect:
- persons who are “comparable to workers”; and
- persons who “may be unable to significantly influence their working conditions because they are in a weak bargaining position”.
In light of the evolution of both online and offline labour markets, some self-employed persons do not benefit from the independence that customarily accompanies the status of a self-employed person. Moreover, as the weaker party, self-employed persons are in a weaker bargaining position. In that light, collective agreements may be an important tool to improve working conditions.
The Draft Guidelines govern all forms of collective bargaining (from bargaining via the social partners or other associations, to direct bargaining among self-employed persons and counterparties or associations of such counterparties). It should be noted that the Draft Guidelines do not alter the Member States’ discretion themselves to take measures in the field of collective representation channels for self-employed persons.
Collective agreements for self-employed persons are covered by the Draft Guidelines only if they are the result of collective negotiations and if they regulate the working conditions (fees, health and safety conditions) under which solo self-employed persons provide their services to a platform. If an agreement is involved that serves another purpose as well, such as market sharing, that part of the agreement is not exempt from competition law.
The Commission will not intervene if a self-employed person finds himself in a situation that is not comparable to that of a worker, but is nevertheless in a weak negotiating position in relation to a counterparty and is therefore unable to significantly influence his working conditions. This applies insofar as the collective agreements aim to correct a clear imbalance in the bargaining power of solo self-employed persons relative to their counterparties. The nature and purpose of the agreement must relate to the improvement of the working conditions. The Commission refers to the following two categories in this context.
Collective agreements entered into by solo self-employed persons with counterparties of a certain economic strength
The Commission will not take action against collective agreements entered into by solo self-employed persons with their counterparties:
- where self-employed persons negotiate or enter into collective agreements with one or more counterparties that represent the whole sector or industry;
- where self-employed persons negotiate or enter into collective agreements with a counterparty whose annual aggregate turnover exceeds EUR 2 million; or
- where self-employed persons negotiate or enter into collective agreements with a party that employs at least 10 persons.
Collective agreements of self-employed persons under national or EU law
In a number of cases, the legislature has independently strengthened the bargaining position of self-employed persons in pursuit of social objectives. In such situations, the Commission will of course not intervene if the national legislature:
- has expressly granted certain persons the right to collective bargaining; or
- has excluded certain categories of collective agreements from the scope of national competition law.
Interested parties have until 24 February 2022 to submit comments on the Draft Guidelines to the Commission. The Commission will publish the final Guidelines in the second quarter of 2022.
Information on dawn raids by ACM and the European Commission can be found at invalacm.nl.
