Opinion of the Advocate General — ECLI:EU:C:2014:2215
Date: 2014-09-11
Language of the case: Dutch
Subject matter: Competition
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary — Judgment of the Court (First Chamber), 4 December 2014 1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Interpretation requested by reason of the applicability to an internal situation of a provision of EU law made applicable by national law — Jurisdiction to provide that interpretation (Art. 267 TFEU) 2. Competition — EU rules — Substantive scope — Collective labour agreement — Provision laying down minimum rates for independent service providers — Concept of ‘false self-employed’ — Substitute musicians in a situation comparable to that of workers — Provision not within the scope of Article 101(1) TFEU (Art. 101(1) TFEU) 3. Competition — EU rules — Undertaking — Concept — Self-employed service providers — Included — Conditions — Offer of services for remuneration and no relationship of subordination (Art. 101(1) TFEU) 1. See the text of the decision. (see paras 17-20) 2. EU law must be interpreted as meaning that a provision of a collective labour agreement which sets minimum fees for self-employed service providers who are members of contracting employees’ organisations and perform for an employer, under a works or service contract, the same activity as that employer’s employed workers, falls within the scope of Article 101(1) TFEU only if those service providers are ‘false self-employed’, in other words, they are in a situation comparable to that of those workers. It is for the national court to ascertain whether that is so. (see paras 22, 23, 30, 41, 42, operative part) 3. Service providers such as musicians substituting for members of an orchestra, are, in principle, ‘undertakings’ within the meaning of Article 101(1) TFEU, for they offer their services for remuneration on a given market and perform their activities as independent economic operators in relation to their principal. That finding cannot, however, prevent such a provision of a collective labour agreement from being regarded also as the result of dialogue between management and labour if the service providers, in the name and on behalf of whom the trade union negotiated, are in fact ‘false self-employed’, that is to say, service providers in a situation comparable to that of employees. A service provider can lose his status of an independent trader, and hence of an undertaking, if he does not determine independently his own conduct on the market, but is entirely dependent on his principal, because he does not bear any of the financial or commercial risks arising out of the latter’s activity and operates as an auxiliary within the principal’s undertaking. Moreover, the term ‘employee’ for the purpose of EU law must itself be defined according to objective criteria that characterise the employment relationship, taking into consideration the rights and responsibilities of the persons concerned. With that in mind, the classification of a ‘self-employed person’ under national law does not prevent that person being classified as an employee within the meaning of EU law if his independence is merely notional, thereby disguising an employment relationship. It follows 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, 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. (see paras 27, 31, 33-36)