The European Court of Justice has delivered a judgement on the false self-employed. The case concerns a collective agreement signed between social partners in the Netherlands covering substitute members of an orchestra. This document set the minimum fees not only for the substitute musicians it employs, but also for those substitutes who exercise their activity on the basis of a works or service contract. One of its terms provided for the self-employed substitutes to be paid at least the fees negotiated for the employed substitutes, plus 16%. However, the competition authority in the Netherlands stated that this provision governing "undertakings", that is to say self-employed substitutes, did not qualify for the derogation granted to collective agreements, excluding them from the prohibition of "cartels" envisaged by the laws on competition. The Court of Justice in fact held that a trade union which negotiates on behalf of service providers who are its members "does not act as a trade union association and therefore as a social partner, but, in reality, acts as an association of undertakings". However, and this is the point at which the judgement becomes interesting, the exclusion granted to collective agreements may be upheld "if the service providers (...) are in fact ‘false self-employed’, that is to say, service providers in a situation comparable to that of employees". The Court invites the national courts to ascertain whether, apart from the legal nature of their works or service contract, self-employed workers are not "in a relationship of subordination (...) during the contractual relationship, so that they enjoy more independence and flexibility than employees who perform the same activity, as regards the determination of the working hours, the place and manner of performing the tasks assigned (...)". The court concludes that "a provision of a collective labour agreement, in so far as it sets minimum fees for service providers who are ‘false self-employed’, cannot, by reason of its nature and purpose, be subject to the scope of Article 101(1) TFEU " (prohibiting cartels).
CJEU: case C‑413/13, FNV Kunsten Informatie en Media, 4 December 2014
Date of publication
4 December 2014
Available language
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Country/countries concerned
European Union | Netherlands
Categories
Case Law
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