On 4 December 2014, the Court of Justice gave its ruling on whether fee conditions in collective agreements between employers and self-employed service providers, who are members of a trade union and perform the same activities as regular employees, fall outside the scope of Article 101 TFEU. The Court of Justice examined the characteristics of the self-employed persons and found that in this case they were "false self-employed" and accordingly ruled that the provisions fall outside of the scope of Article 101.
The case was brought by the FNV, a trade union representing the employees of orchestras and self-employed substitutes in the Netherlands. The FNV had started legal proceedings to obtain a declaratory judgment that fee conditions in collective agreements setting the minimum fees between employers and self-employed service providers are not contrary to Dutch and EU Competition law. After a negative judgment from the District Court, the question was on appeal referred to the Court of Justice.
In its analysis, the Court of Justice first recalled the established case law that collective agreements concluded between trade unions and employers relating to conditions of employment and working conditions fall outside the scope of Article 101 as they fulfil important social objectives.
The present case deals with a trade union representing regular employees and self-employed persons. The self-employed persons are in principle "undertakings" within the meaning of Article 101 and an organization representing them would then be an association of undertakings. The TFEU does not contain provisions for encouraging self-employed persons to conclude collective agreements with employers, like Articles 153 and 155 for regular employees. Therefore, in principle, provisions such as the one at issue would be within the scope of Article 101.
However, the applicability of Article 101 should be excluded for the "false self-employed," those service providers who find themselves in a situation comparable to that of employees. The Court of Justice recalled the criteria as established in earlier case law that a service provider may lose his status as an undertaking if he: (i) does not determine independently his own conduct on the market but is entirely dependent on the principal, (ii) does not bear any financial or commercial risks, and (iii) operates as an auxiliary within the principal's undertaking. The Court of Justice elaborated further adding that the "false self-employed" person also acts under the direction of his employer in regards to his freedom to choose the time, place and content of his work and forms an "integral part" of that employer's undertaking thereby forming an economic unit with that undertaking.
The Court of Justice also recalled that the fact that a person is classified as "self-employed" under national law does not prevent his classification as "employee" under EU law "if his independence is merely notional." The Court of Justice stated that the national courts will make that determination.