EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

does not fall within the scope of Art. 101(1) TFEU. The Court emphasised also its settled case-law findings and the loss of status of undertakings, if the service provider is dependent on their principal, does not bear any financial or commercial risks from their own activity and operates as an auxiliary within the principal’s undertaking (The Court of Justice of the European Union, 2013, point 33, 42) The European Committee of Social Rights went one step further in the case of the Irish Congress of Trade Unions (ICTU) v. Ireland . Firstly, the Committee dealt with the decision of the Irish Competition Authority that considered collective agreement between the trade union (representing actors) and another entity as breaching the Irish Competition Act 2002 because of agreed fixed prices for the sale of their services (European Committee of Social Rights, 2018, para 97). The Committee considered such prohibition of collective bargaining concerning remuneration for certain self-employed workers as an excessive restriction breaching the right to bargain collectively guaranteed by Article 6(2) of the European social charter (European Committee of Social Rights, 2018, para 98, 101). Secondly, the Committee dealt with the Irish Competition (Amendment) Act 2017 that stated that is not applied to collective bargaining and agreements of certain categories of workers – also “false self-employed” person and fully dependent self-employed persons specified in an Order made by the Minister. The Committee acknowledged that such rules do not breach the Charter (European Committee of Social Rights, 2018, para 104, 111, 116). According to the Committee the key parameter of right to collectively bargain is not the distinctions between worker and self-employed but the bargaining power – when it is low and the self-employed workers have no chance to influence the contractual conditions, they should have a chance to bargain collectively and improve such imbalance. The Committee found out that the Art. 101 TFEU has no effect on the right of the workers to collective bargain and enables exceptions for certain category of self-employed persons (European Committee of Social Rights, 2018, paras 36, 38, 115). Considering above mentioned case law, the Court of Justice has not acknowledged any general right to bargain collectively to all self-employedpersons so far.However, the concept of exception for “false self-employed persons” from competition rules is hardly sufficient in the digital era and the Committee considerations on imbalance in bargaining power could be an inspiration. As Biasi described “the limitation of the antitrust exemption for collective bargaining to employees has turned into a vehicle of social injustice and it has to be thus rethought” (Biasi, 2018, p. 372). The possible stricto sensu interpretation of “undertakings” made by the Court and its exceptions for other self-employed persons (especially economically dependent) could be a way. The European Commission has meanwhile taken steps and

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