Who is a “worker”?
The scope of recently enacted/proposed EU labour directives contains specific reference to the case-law of the European Court of Justice (ECJ):
“This Directive applies to all workers, men and women, who have an employment contract or employment relationship as defined by the law, collective agreements or practice in force in each Member State, taking into account the case-law of the Court of Justice” (see to that extent Article 2 Directive 2019/1158 on work-life balance for parents and carers, Article 1.2 Directive 2019/1152 on transparent and predictable working conditions in the European Union, Article 2 Proposal for a Directive on adequate minimum wages in the European Union, Article 1.2 Proposal for a Directive on improving working conditions in platform work-emphasis added).
The concepts of “worker” and “employment relationship” are given various interpretations by Member States national laws and jurisprudence.
The ECJ case-law has established criteria for determining the status of worker, and the existence of an employment relationship.
The wording “taking into account the case-law of the Court of Justice”, is likely to give rise to an interpretation that is different from the following existing ECJ interpretations:
- EU directives that refer to the concepts of worker and employment relationship “as defined by the law, collective agreements or practice in force in each Member State”- the ECJ applies the principle of effectiveness: Member States are given discretion to define these concepts, however, in transposing directives, the objective pursued by the said directives must be achieved (on the contrary, directives would be deprived of their effectiveness)
- EU directives that do not contain reference to national law, collective agreements, or practice: the concept of worker is given an autonomous interpretation throughout the EU
It must be noted that the wording “taking into account the case-law of the Court of Justice”, is the compromise reached following the EU Commission proposal to codify the relevant ECJ case law (rather than only refer to ECJ case-law).
It introduces an obligation for Member States, to apply related ECJ case-law, in view of determining the categories of workers that fall under the scope of laws transposing such directives, even though there is no aim to achieve an autonomous interpretation throughout the EU.
A more precise determination of the principle of effectiveness (?).
By giving an additional weight to ECJ case-law, two main objectives are pursued:
- to tackle exclusion of certain categories of working persons from the scope of national laws transposing EU labour directives (i.e., individuals not qualified as “workers” under national law, although in accordance with the ratio decidendi of relevant ECJ case-law, should qualify)
- to tackle bogus self-employment
As regards bogus self-employment, the Proposal for a Directive on improving working conditions in platform work, represents a significant step forward: “between 1.72 million and 4.1 million people are expected to be reclassified as workers.”
Beyond platform work, “exercise of employer's authority”, and “transfer of employer's authority”, are concepts that raise a great deal of legal uncertainty.
The concept of “authority” is intrinsic to the determination of whether an individual is a worker, and where relevant, of the undertaking(s) that genuinely employ that worker.
As regards the existence of an employment relationship, it is widely admitted that “The determination of the existence of an employment relationship should be guided by the facts relating to the actual performance of the work and not by the parties’ description of the relationship.” (see inter alia Recital 8 Directive 2019/1152).
The legal presumption of employment relationship exists in different Member States (existence or non-existence of an employment relationship).
The national law in certain Member States provides for an additional status: “economically dependent self-employed”.
It looks not too bad. Nonetheless, an overview of national jurisprudence shows that the stakeholders in employment relationships’ practices are not evolving.
In simple words, beyond further achievements on improving working conditions in platform work, show will go on.
Triangular employment relationships
Article 1.5 Directive 2019/1152 reads as follows: “Member States may determine which persons are responsible for the execution of the obligations for employers laid down by this Directive as long as all those obligations are fulfilled. They may also decide that all or part of those obligations are to be assigned to a natural or legal person who is not party to the employment relationship. This paragraph is without prejudice to Directive 2008/104/EC of the European Parliament and of the Council.”
That article must be read in conjunction with Recital 13: “Several different natural or legal persons or other entities may in practice assume the functions and responsibilities of an employer. Member States should remain free to determine more precisely the persons who are considered to be wholly or partly responsible for the execution of the obligations that this Directive lays down for employers, as long as all those obligations are fulfilled. Member States should also be able to decide that some or all of those obligations are to be assigned to a natural or legal person who is not party to the employment relationship.”
Where concepts such as “authority”, “transfer of authority”, and “employment relationship” are not given an autonomous interpretation, the EU legislator may only take note of the existence of triangular employment relationship (beyond and without prejudice to the concept of temporary agency work): “other entities may in practice assume the functions and responsibilities of an employer.”
Member States are encouraged to give legitimation to Professional Employer Organisations (beyond existing national practices).
Why to maintain grey areas in which certain scenarios are not unlawful (although not provided for by national law), and other scenarios must be merely banned?
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