Competition — Article 101 TFEU — Substantive scope —Collective labour agreement — Provision laying down minimum rates for independent serviceproviders — Definition of ‘undertaking’ — Definition of ‘employee’)
In FNV Kunsten the Court recognised the right to collective bargaining for “‘false self-employed’, that is to say, service providers in a situation comparable to that of employees” (§ 31). In other words, the situation does not have to be identical, but it suffices that the situation is comparable in order to fall outside the scope of Article 101. Furthermore, “the classification of a ‘self-employed person’ under national law does not prevent that person being classified as an employee within the meaning of EU law if his independence is merely notional, thereby disguising an employment relationship” (§ 35).
Advocate General Wahl in his Opinion in FNV Kunsten developed this reasoning further, stating that “the possibility for employers to replace workers with other individuals in respect of whom they [did] not have to apply the working conditions laid down in the relevant collective agreement [would] significantly weaken the negotiating position of workers” and the objective of collective bargaining, namely “[t]he elimination of wage competition between workers” (§ 76-77). In other words, the collective agreement at hand in the case had to be “regarded as improving directly their employment and working conditions, within the meaning of the Albany line of cases” (§ 83).
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