The European Commission has published draft guidelines concerning the competition rules’ application to collective agreements for solo self-employed persons. With these guidelines, there will be clear rules as to solo self-employed peoples’ possibility of unionising and collectively negotiating working conditions in accordance with the competition rules. The draft guidelines have been submitted for consultation and are expected in a final version by the end of 2022.
Solo self-employed persons do not employ any other persons, and their situation may be compared to that of an employee because the solo self-employed person often only has one contracting party. In recent years, there has been a tendency to more previously employed persons becoming self-employed persons. An important factor in this respect is the digital development which provides new opportunities concerning trading and direct contact with the consumers, e.g. via digital platforms. More self-employed persons therefore perform work in a context which looks like an employment relationship but without the same protection as an employee.
New guidelines are to protect solo self-employed persons
Under the competition rules, companies may not cooperate and enter into agreements with their competitors on matters that may affect competition. Solo self-employed persons do therefore not enjoy the same wide limits concerning collective agreements as employees. To meet this problem, the Commission has made draft guidelines to clarify the application of the competition rules within the area. The purpose is that legislation is not to stand in the way of solo self-employed persons’ efforts to negotiate better working conditions.
The European Commission’s press release: Antitrust: Commission invites comments on draft Guidelines about collective agreements regarding the working conditions of solo self-employed people
Sole self-employed persons: Who is exempted from the competition rules?
The Commission’s draft guidelines define three types of solo self-employed persons covered by the guidelines:
- Financially dependent self-employed persons with no employees.
- Solo self-employed persons working side by side with employees.
- Solo self-employed persons working via digital platforms.
If a solo self-employed person is covered by the guidelines, he/she may lawfully unionise by way of a collective agreement on the same terms as a collective agreement concerning pay and working conditions entered into between an employer and an employee organisation.
Which agreements are exempted from the competition rules?
The guidelines are to apply to agreements negotiated or entered into collectively between solo self-employed persons covered by the guidelines and other businesses. It is furthermore a requirement that the agreements concern working conditions such as holiday, pay, absence, health, social security and termination of the cooperation between the solo self-employed person and the business to which the services are provided. Other agreements on working conditions between solo self-employed persons are assessed individually and may constitute a violation of the competition rules if they restrict competition.
Which agreements are still unlawful?
The Commission’s draft guidelines do not cover:
- Agreements between solo self-employed persons outside the framework of the collective negotiations.
- Agreements extending beyond the regulation of working conditions and laying down the conditions (especially the price) according to which solo self-employed persons or contracting parties offer services to the consumers.
- Agreements limiting the employers’ freedom to employ the labour they require.
These types of agreements may still be contrary to the competition rules due to their anti-competitive nature.
As an example, the Commission emphasises that a collective agreement between several digital platforms and self-employed delivery persons fixing a minimum consideration (pay) to the delivery persons will not be unlawful as the agreement concerns improvement of the working conditions of the self-employed delivery persons. However, it will be unlawful to discuss a minimum price per delivery service, which is to be paid by the consumers, as this does not concern the working conditions and lies outside the framework of the collective negotiations.