EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

providers and therefore such protests are not too exceptional, some are not in this position. They are freelancers (self-employed persons), objectively independent of each other, thus not cooperating colleagues as employees. Therefore, regarding the competition rules, they should compete, not cooperate with each other in order to negotiate the same advantages against the platform providers. The question is, what do the protesting freelancers risk? As they are not in the position of employees with an explicit right to collective bargaining, they run the risk of infringing the competition rules, in particular the prohibition of horizontal agreements (agreements between undertakings that may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market according to Art. 101 of the Treaty on the Functioning of the European Union). However, they could also be a weaker party that deserves protection or some instruments that improve their low bargaining power. Considering the fact that the platform providers play a role of market organizers who enable the business users to connect and contract with other users (consumers) and the fact that such a role is difficult to replace for the usual website nowadays in the global and digital economy, the freelancers cannot leave them easily. They are economically dependent on the platforms and in order to be in contact with other users (customers), they have to tolerate the unfavourable conditions. Is it therefore necessary to change the legislation in order to enable the collective negotiation and collective action (protests) to the business users of the platforms? Or is it sufficient to interpret the existing competition law and exemptions from the prohibited agreements between competitors? 5.2.1 Case law on collective labour agreement of self-employed persons Current development of case law and decisions of committees show that the essential change of legislation is perhaps not necessary. In the case of Pavel Pavlov and Others v. Stichting Pensioenfonds Medische Specialisten , the Court of Justice emphasized that collective agreement concluded by an association of self-employed medical specialists and insurance companies in order to guarantee a certain level of pension to all the members of a profession is not excluded from the scope of Art. 85(1) of the Treaty (Art. 101(1) of the Treaty). According to the Court, the Treaty does not enable the members of the liberal professions to conclude collective agreements in order to improve their working conditions (Joined cases C-180/98 to C-184/98, para 68). However, the Court of Justice of the European Union in the case of FNV Kunsten Informatie en Media v. Staat der Nederlanden , C-413/13 concluded that the collective labour agreement that sets minimum fees for “false self-employed service providers” (service providers in a situation comparable to that of workers)

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