EN
C 123/8
Official Journal of the European Union
18.3.2022
Example 4 Situation: Company X organises orchestra concerts and other classical music events.
Multiple musicians work for Company X either as workers or as self-employed persons, on the basis of annual contracts.
These musicians, independently of their status, are instructed by the cultural director of Company X as to the works they must perform, the timing and place of rehearsals and the events in which they must participate.
Company X has concluded a collective agreement with all the musicians.
This establishes a maximum cap of 45 working hours per week and grants the musicians a special leave of 1 day after the performance of 3 concerts within the same week.
Analysis: The solo self-employed musicians are in a situation comparable to that of Company X’s workers in terms of subordination and similarity of tasks.
They perform the same tasks as the employed musicians (i.e. performing music for events), they are subject to the same instructions of Company X regarding the content, place and timing of the performances and they are engaged for a similar duration as the employed musicians.
Under these circumstances, the collective agreement regulating the musicians’ working conditions falls outside the scope of Article 101 TFEU.
(c)
Solo self-employed persons working through digital labour platforms
(28) The emergence of the online platform economy and the provision of labour through digital labour platforms has created a new reality for certain solo self-employed persons, who find themselves in a situation comparable to that of workers vis-à-vis the digital labour platforms through or to which they provide their labour.
Solo self-employed persons may be dependent on digital platforms, especially in terms of their customer outreach, and may often face “take it or leave it” work offers, with little or no scope to negotiate their working conditions, including their remuneration.
Digital labour platforms are usually able to unilaterally impose the terms and conditions of their relationship, without prior information or consultation of the solo self-employed persons.
(29) Recent jurisprudence and legislative developments at national level provide further indications of the comparability of such self-employed persons with workers.
In the context of reclassification cases, national courts are increasingly recognizing the dependence of service providers on certain types of platforms, or even the existence of an employment relationship (26).In the same vein, some Member States have adopted legislation (27) establishing a presumption of employment relationship or the right to collective bargaining for service providers to or through digital platforms.
(30) For the purposes of these Guidelines, the term digital labour platform means any natural or legal person providing a commercial service which meets all of the following requirements: (i) it is provided, at least in part, at a distance through electronic means, such as a website or a mobile application; (ii) it is provided at the request of a recipient of the service; and (iii) it involves, as a necessary and essential component, the organisation of work performed by individuals, irrespective of whether that work is performed online or in a certain location.
Platforms which do not organise the work of individuals but simply provide a means through which the solo self-employed persons can reach end-users do not constitute digital labour platforms.
For example, a platform that merely aggregates and displays the available service providers (e.g. plumbers) in a specific area, thereby allowing customers to use their services on demand is not considered a digital labour platform, as it does not organise the work of the service providers.
(31) In light of these considerations, collective agreements between solo self-employed persons and digital labour platforms that by their nature and purpose aim at improving working conditions fall outside the scope of Article 101 TFEU, even if the self-employed persons in question have not been reclassified as workers by national authorities/courts.
(26) For a detailed overview of the case law in nine EU Member States, Switzerland and the United Kingdom see Hießl, C., ‘Case Law on the Classification of Platform Workers: Cross-European Comparative Analysis and Tentative Conclusions’, Comparative Labour Law & Policy Journal, 02.05.2021, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3839603.
(27) See for instance Spain, with the Royal Decree-Law 9/2021, of 11 May, amending the recast text of the Workers’ Statute, approved by Royal Legislative Decree 2/2015, of 23 October, to guarantee the labour rights of persons engaged in distribution in the field of digital platforms, Official State Gazette No 113 of 12 May 2021, pages 56733 to 56738; or Greece with the Hellenic Republic, Law 4808/2021 for the Protection of Labour – Establishment of an Independent Authority "Labour Inspection" – Ratification of Convention no 190 of the International Labour Organization to eliminate violence and harassment in the world of work – Ratification of Convention no 187 of the International Labour Organization for the Promotional Framework for Occupational Safety and Health at Work – Implementation of the Directive (EU) 2019/1158 of the European Parliament and of the Council of 20 June 2019 on work-life balance, and other provisions of the Ministry of Labour and Social Affairs and other urgent arrangements, Official Gazette Α' 101/19-06-2021.