On 4 December 2014, the Court of Justice of the European Union (the "ECJ") handed down a judgment regarding the application of Article 101 of the Treaty on the Functioning of the European Union ("TFEU") to collective labour agreements for self-employed service providers (Case C-413/13 - FNV Kunsten Informatie en Media ("FNV") v. Staat der Nederlanden). Independent service providers in the Netherlands have the right to join a trade union or employers' or professional association. Therefore, according to the Dutch Law on collective labour agreements, employers' federations and organisations representing employees may conclude a collective labour agreement in the name and on behalf of not only the employees, but also of the independent service providers who are members of those organisations.
In the case before the ECJ, the FNV and the "Nederlandse Toonkunstenaarsbond" (Dutch Musicians' Union), an employees' association, and "Vereniging van Stichtingen Remplaçanten Nederlandse Orkesten" (Association of Foundations for Substitutes in Dutch Orchestras), an employers' association, had entered into a collective labour agreement relating to musicians substituting for members of an orchestra (the "substitutes"). The collective labour agreement laid down minimum fees not only for substitutes hired under an employment contract (the "employed substitutes"), but also for substitutes who carry out their activities under a contract for professional services. The latter do not qualify as ‘employees' for the purposes of the agreement ("self-employed substitutes").
According to the Nederlandse Mededingings-autoriteit (Netherlands Competition Authority; the "NMa"), a collective labour agreement setting minimum fees for the supply of independent services is not excluded from the scope of Article 101(1) TFEU.
In light of the position of the NMa, the employers' association, the "Vereniging van Stichtingen Remplaçanten Nederlandse Orkesten" and the employees' association "Nederlandse Toonkunstenaarsbond" terminated the collective labour agreement and refused to enter into a new agreement containing minimum fees for self-employed substitutes.
The FNV brought an action before the District Court of The Hague for: (i) a declaratory judgment that it is not contrary to Dutch or EU competition law for a provision of a collective labour agreement to require the employer to adhere to minimum fees not only for employed substitutes, but also for self-employed substitutes; and (ii) an order to be imposed on the Dutch State to rectify the position adopted by the NMa.
On appeal, the Appeals Court of The Hague decided to stay the proceedings and request from the ECJ a preliminary ruling concerning the question whether the prohibition of agreements restricting competition laid down in Article 101(1) TFEU applies to a provision of a collective labour agreement setting minimum fees for self-employed service providers performing the same activity for an employer as that employer's employed workers.
The ECJ held that a provision of a collective labour agreement, in so far as it has been entered into by an employees' organisation in the name and on behalf of the self-employed services providers who are its members, does not result from a collective negotiation between employers and employees, and, as a result, cannot be excluded from the scope of Article 101(1) of the TFEU. The self-employed workers are "undertakings" and the employees' organisation is acting as an "association of undertakings" for the purposes of Article 101 (1) TFEU.
However, the ECJ added that it must be established by the national court whether the "self-employed" are not in fact "fake self-employed" service providers such that they are actually in a situation comparable to employees. This will depend on factors such as whether they act under the same authority of the employer as regards their freedom to choose the time, place and content of their work; whether they share the employer's commercial risks; and whether, for the duration of the relationship, they form an integral part of the employer's undertaking. If the service providers are actually "fake self-employed", then a collective labour agreement does not fall under the scope of Article 101(1) TFEU.
