European Commission Vice-President Margrethe Vestager sought on Monday 28 March to reassure MEPs in the Committee on Employment and Social Affairs (EMPL) of the European Commission’s objectives with regard to the draft guidelines on the application of EU competition law to collective agreements concerning the working conditions of self-employed service providers without employees.
In early December 2021, the European Commission opened a public consultation in conjunction with the presentation of the Directive on working conditions on digital platforms to clarify the interaction between competition rules under Article 101 of the TFEU and collective bargaining for the self-employed (see EUROPE 12850/14).
During the exchanges with MEPs, many concerns were expressed. The question of balance between competition rights and the necessary protection of workers was raised, including by Dennis Radtke (EPP, Germany), among others.
The risk of interference with national law in the field of labour was also of concern, as Nikolaj Villumsen (The Left, Denmark) pointed out. Above all, the fear of creating a special status - a third statute - came up several times in the speeches, notably in that of Agnes Jongerius (S&D, Netherlands) and Kim van Sparrentak (Greens/EFA, Netherlands), in addition to the risk of provoking chains of subcontracting to circumvent possible collective bargaining.
Mrs Vestager sought to clarify the European Commission’s intentions. “This initiative is not regulating working conditions, nor is it changing how social dialogue and collective bargaining are regulated by Member States”, the Vice-President said up front. She added: “The guidelines do not mandate anything. They aim to clarify when competition law does not apply to collective bargaining and when the Commission will not be intervening although it does apply”.
The Vice-President reported on two main categories of self-employed. The first concerns bogus self-employed persons: people who derive their income mainly or predominantly from a company and who work “side by side” with employees in the same company where they perform similar or identical tasks to those of employees, Mrs Vestager said. Here, the competition rules do not apply, she made clear. The second category concerns the self-employed who are in a weak bargaining position; for example, against much more powerful companies.
Mrs Vestager went further. Collective agreements of self-employed workers without employees, which do not fall within the scope of the Guidelines, do not automatically infringe EU competition rules. “They will be assessed on a case-by-case basis under the conditions of Article 101 of the Treaty, like any other type of agreement”, the Vice-President said. This last remark raised many concerns and perplexity among MEPs.
Responding to Mrs van Sparrentak, Mrs Vestager explained that each situation had to be analysed, citing the case of companies with fewer than 10 employees or with a “modest“ turnover of less than €2 million. There, the balance of power is more equitable, she says.
She repeatedly stressed that the guidelines do not grant positive rights. The guidelines remove a competition law, “a perceived barrier”, and that is also why it is not for these guidelines to say who should or should not negotiate, she insisted. (Original version in French by Pascal Hansens)