EU competition law and collective agreements in the age of the platform economy – a new equilibrium?

On 9 December 2021, the Commission launched a public consultation on the draft Guidelines on the application of EU competition law to collective agreements regarding the working conditions of “solo” self-employed persons (i.e. people who are not in an employment relationship and who rely primarily on their own personal labour). Margrethe Vestager, Executive Vice-President for a Europe Fit for the Digital Age and in charge of competition policy, has stated that the draft Guidelines “aim to bring legal certainty by making clear when competition law does not stand in the way of these people's efforts to negotiate collectively for a better deal” with their counterparties (“collective agreements”).

The issue of access to collective bargaining for solo self-employed workers has become a hot topic within the competition law community due to the rise of the platform economy. Albeit not limited to this sphere, the draft Guidelines form part of a broader Commission package aimed at improving the working conditions in platform work and reflect (as for the issue of sustainability) the Commission’s interest in applying competition law in a way which is consistent with wider societal objectives.

The package should be seen in the context of the novel question posed by the sharing economy, namely whether service platforms should be considered as mere intermediaries between self-employed persons and customers (in which case participating individuals offering services may be considered as undertakings and collective agreements may fall within the scope of Art. 101 TFEU) or single economic entities which encompass their “employees” (in which case collective agreements negotiated by these individuals may not be subject to competition laws).

Background

The draft Guidelines highlight that self-employment has grown substantially in the EU in recent years mainly in the online platform economy and that improved working conditions and proper social protection “constitute core principles of the European Pillar of Social Rights”. However, according to well-established ECJ case-law, solo self-employed persons are engaged independently in an economic activity and, therefore, collective agreements with their counterparties are considered as agreements between “undertakings”, i.e. agreements between competitors that may be prohibited under Article 101 TFEU.

The agreements concerned

The Guidelines apply to all collective agreements concluded by certain categories of solo self-employed persons (see below) to the extent that they concern “by their nature and purpose” the working conditions of such persons. The Commission excludes from the scope of the Guidelines agreements that might bear anti-competitive risks (i.e., refusal to supply certain counterparties, market sharing, exchange of sensitive information not related to working conditions).

The persons covered 

The Guidelines distinguish between collective agreements: (i) falling outside the scope of Article 101 TFEU and (ii) those falling within the scope of Article 101 TFEU, but in respect of which the Commission will not intervene.  

Based on the ECJ case law (Albany, FNV Kunsten), collective agreements involving solo self-employed persons in a situation “comparable to those of workers” (referred to as “false self-employed” by the ECJ) fall outside the scope of Article 101 TFEU. The Commission has identified as solo self-employed persons fulfilling this criterion those:

• economically dependent on a single counterparty for at least 50% of their total annual work-related income; or
• performing tasks “side-by-side” with workers employed by the same counterparty; or
• working through “digital labour platforms” organising the work of individuals (however, platforms merely aggregating and displaying the available service providers in a given area, e.g. doctors, do not fall outside of the scope of Art. 101 TFEU)

While not involving solo self-employed persons in a situation comparable to those of workers, the Commission will not intervene as an enforcement priority against collective agreements falling within the scope of Art. 101 TFEU where solo self-employed persons:

• face an imbalance in bargaining power due to negotiation with counterparties of a certain economic strength, i.e. collective agreements concluded by solo self-employed persons with one or more counterparties which: (i) represent the whole sector or industry; or (ii) have an aggregate turnover that exceeds EUR 2 million or whose staff headcount is equal or more than 10 persons; or
• are entitled to bargain collectively pursuant to national or EU legislation in consideration of social objectives (e.g. collective agreements concluded by solo self-employed authors or performers pursuant to the Copyright Directive).

What’s next?

Interested parties can submit comments on the Guidelines until 24 February 2022. The Commission will assess the input of the stakeholders and plans to publish the final version of the Guidelines in the second quarter of 2022.

If adopted, the Guidelines will be binding for the Commission in its enforcement activities. However, given that such Guidelines cannot bind the EU Courts, the likely outcome of legal challenges to such agreements remains uncertain. Furthermore, these Guidelines would not prevent national competition authorities from taking enforcement actions in this sphere.