FNV Kunsten Informatie en Media v Staat der Nederlanden.
Date: 2014-12-04
18. In that connection, the Court has repeatedly held that it has jurisdiction to give preliminary rulings on questions concerning EU law in situations in which the facts in the main proceedings fell outside the direct scope of that law, provided always that those provisions had been rendered applicable by the national law, which adopted, for solutions applied to purely internal situations, the same approach as that for solutions provided for under EU law. In such cases, according to settled case-law, it is clearly in the interest of the European Union that, in order to forestall future differences of interpretation, provisions or concepts taken from EU law should be interpreted uniformly, irrespective of the circumstances in which they are to apply (judgment in Allianz Hungária Biztosító and Others , C‑32/11, EU:C:2013:160, paragraph 20).
22. In that connection, it is to be recalled that, according to settled case-law, although certain restrictions of competition are inherent in collective agreements between organisations representing employers and employees, the social policy objectives pursued by such agreements would be seriously compromised if management and labour were subject to Article 101(1) TFEU when seeking jointly to adopt measures to improve conditions of work and employment (see judgments in Albany , EU:C:1999:430, paragraph 59; International Transport Workers’ Federation and Finnish Seamen’s Union , C‑438/05, EU:C:2007:772, paragraph 49 and 3F v Commission , C‑319/07 P, EU:C:2009:435, paragraph 50).
23. Thus, the Court has held that agreements entered into within the framework of collective bargaining between employers and employees and intended to improve employment and working conditions must, by virtue of their nature and purpose, be regarded as not falling within the scope of Article 101(1) TFEU (see, to that effect, judgments in Albany , EU:C:1999:430, paragraph 60; Brentjens’ , EU:C:1999:434, paragraph 57; Drijvende Bokken , EU:C:1999:437, paragraph 47; Pavlov and Others , C‑180/98 to C‑184/98, EU:C:2000:428, paragraph 67; van der Woude , EU:C:2000:475, paragraph 22; and AG2R Prévoyance , C‑437/09, EU:C:2011:112, paragraph 29).
27. It must be held in that regard that, although they perform the same activities as employees, service providers such as the substitutes at issue in the main proceedings, are, in principle, ‘undertakings’ within the meaning of Article 101(1) TFEU, for they offer their services for remuneration on a given market (judgment in Ordem dos Técnicos Oficiais de Contas , C‑1/12, EU:C:2013:127, paragraphs 36 and 37) and perform their activities as independent economic oper ators in relation to their principal (see judgment in Confederación Española de Empresarios de Estaciones de Servicio , C‑217/05, EU:C:2006:784, paragraph 45).
29. It should also be added that, although the Treaty encourages dialogue between management and labour, it does not, however, contain provisions, like Articles 153 TFEU and 155 TFEU or Articles 1 and 4 of the Agreement on social policy (OJ 1992 C 191, p. 91), encouraging self-employed service providers to open a dialogue with the employers to which they provide services under a works or service contract and, therefore, to conclude collective agreements with a view to improving their terms of employment and working conditions (see, by analogy, judgment in Pavlov and Others , EU:C:2000:428, paragraph 69).
33. As far as concerns the case in the main proceedings, it must be recalled that, according to settled case-law, on the one hand, 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 (see, to that effect, judgment in Confederación Española de Empresarios de Estaciones de Servicio , EU:C:2006:784, paragraphs 43 and 44).
34. On the other hand, 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. In that connection, it is settled case-law that the essential feature of that relationship is that for a certain period of time one person performs services for and under the direction of another person in return for which he receives remuneration (see judgments in N ., C‑46/12, EU:C:2013:97, paragraph 40 and the case-law cited, and Haralambidis , C‑270/13, EU:C:2014:2185, paragraph 28).
35. From that point of view, the Court has previously held that 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 (see, to that effect, judgment in Allonby , C‑256/01, EU:C:2004:18, paragraph 71).
36. 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, 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 (see judgment in Allonby , EU:C:2004:18, paragraph 72), does not share in the employer’s commercial risks (judgment in Agegate , C‑3/87, EU:C:1989:650, paragraph 36), 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 judgment in Becu and Others , C‑22/98, EU:C:1999:419, paragraph 26).