Examining recent initiatives to ensure labour rights for platform workers in the European Union to tackle the problem of domination

Abstract

This article discusses how recent European Commission and European Parliament initiatives have taken two paths to protect platform workers from the domination of platforms and norms: clarifying who should have access to labour rights and removing the applicability of EU competition law. It will become clear that all the initiatives of both kinds face significant challenges, hampering their effectiveness in ensuring freedom from domination for platform workers. This article concludes by arguing that the best way to tackle domination of platform workers in the EU would be to put the idea of inequality of bargaining power at the centre of the analysis, making policy initiatives less dependent on elusive definitions and expanding the reach of labour law.

Introduction

The European Commission (Commission) and the European Parliament (Parliament) have acknowledged the emergence of the platform economy and the problems of platform work in the EU (European Commission, 2021a; European Parliament, 2021). One of the main problems concerning platform work is the exclusion of platform workers from access to labour rights (International Labour Organization, 2021: 90–95, 230–234; Pesole et al., 2018). This article argues that such exclusion occurs because of the intertwined operation of two kinds of power: platforms’ power to dictate terms and conditions of work unilaterally and the capacity of EU competition law to sanction platform workers’ collective agreements.

The power of platforms unilaterally to dictate terms and conditions of work is related to their capacity to determine unilaterally the content of contracts to be signed by platform workers and to manage working conditions without constraint once the working relationship has started (International Labour Organization, 2021: 98–100). In this context, platforms can create conditions to prevent platform workers from meeting the EU definition of ‘worker’, a key gateway for accessing labour rights in the EU (Kountouris, 2018; Risak and Dullinger, 2018). The implications of excluding platform workers from meeting the EU definition of worker can be seen in Yodel. ¹ Here, the Court of Justice of the European Union (CJEU) rejected the claim of a platform worker to be considered a worker subject to EU social policy directives so as to bring claims against the employing platform. For the CJEU, the fact that the platform worker could hire substitutes or subcontractors, reject or limit assigned tasks or establish their own schedule was evidence of independent self-employment, regardless of who wrote the terms and conditions of work and the actual power relationship between the parties (Buendia, 2020).

Another significant implication of platforms’ power to prevent platform workers from being considered ‘workers’ can be observed in how EU competition law sanctions platform workers’ collective agreements. If platform workers are deemed workers, their collective agreements would probably be covered by an exemption from the operation of EU competition law (Jones and Sufrin, 2019; McCrystal and Syrpis, 2014). By contrast, if platform workers are not considered workers, they would be regarded as self-employed undertakings and their collective agreements would be subject to EU competition law through Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU) (European Commission, 2021b). In short, Articles 101 and 102 TFEU punish agreements and concerted practices of undertakings that affect free competition (Whish and Bailey, 2018). Self-employed people have traditionally been subject to competition laws because it has been assumed that they have more market power than workers and thus there is no need to exempt their collective agreements from the operation of competition law (Posner, 2021: 40–41). The problem for platform workers deemed to be self-employed is that they do not have more market power than traditional workers.

The problems of excluding platform workers from accessing labour rights and the operation of EU competition law as discussed can be framed as a problem with the understanding of freedom. Platforms can unilaterally dictate terms and conditions of work because the parties freely agreed to it in a contract. In turn, EU competition law sanctions the free agreements of undertakings (including platform workers deemed self-employed undertakings) to manipulate markets. Both kinds of power against platform workers rely on a negative account of freedom (Berlin, 1958). On this account, people are free if their choices are not interfered with by other agents (Lovett and Pettit, 2009; Pettit, 1999). As in the rationale behind the Yodel ruling, platform workers are ‘free’ (or, in principle, not interfered with by others) to enter into and determine the content of a contract, and what the parties agree upon shall legitimise their obligations (Pettit, 1999: 62). By the same token, platform workers are free to organise, provided they do not compromise the operation of free markets. The main problem with this notion of freedom is that it ignores most power asymmetries between platform workers and platforms.

Against this background of exclusion, republicanism – a contemporary political doctrine focused on freedom and power (Lovett and Pettit, 2009) – offers an alternative vision of freedom, freedom as non-domination. Under the republican account of freedom, people are free if they are not dominated. In turn, people are dominated if others enjoy arbitrary interference over their choices at any time, and there is a shared awareness of the capacity to exercise such power. In other words, domination is a moral wrong that happens when people are subject to the will of others (Lovett, 2010; Pettit, 1999).

Within the framework of a republican account of freedom as non-domination, platforms dominate platform workers when the latter accept unilateral terms and conditions of work, enabling platforms to manage platform workers without significant formal channels to challenge such power (Aloisi, 2015; De Stefano, 2016; International Labour Organization, 2021). The unchecked power of platforms to dictate terms and conditions of work enables them to set the conditions to classify platform workers not as workers but as self-employed. As outlined above, if platform workers are not considered workers, they are regarded as self-employed undertakings subject to the operation of EU competition law. The unchecked power of platforms to classify platform workers as self-employed undertakings and the capacity of EU competition law to discipline their collective agreements can be viewed as dyadic and structural market domination. Dyadic market domination refers to identifiable agents (such as platforms) capable of dominating other agents. In turn, structural market domination results from existing laws and practices (such as the operation of EU competition law) that create domination over agents (Rahman, 2017: 80–86).

This article aims to show the value of using a republican account of freedom as non-domination to assess the problems of excluding platform workers from accessing labour rights and subjecting them to the operation of EU competition law when exercising their collective labour rights. To do so, we discuss how different initiatives stemming from the Commission and the Parliament propose to diminish dyadic and structural market domination over platform workers by ensuring access to labour rights.

Throughout this article, it will become clear that the Commission and Parliament initiatives can be grouped into strategies focused on clarifying who should access labour rights and strategies that focus on removing the applicability of EU competition law to enable access to collective bargaining for platform workers. The structure of the argument is as follows.

The first section examines the initiatives focused on clarifying who should access labour rights. This section discusses the Parliament resolution on ‘Fair working conditions, rights and social protection for platform workers – new forms of employment linked to digital development’ (European Parliament, 2021) (Parliament Resolution) and how it influenced the Commission Proposal for a Directive of the European Parliament and the Council on improving conditions in platform work (European Commission, 2021a) (hereafter, the proposed Directive) to clarify whether platform workers can access labour rights. The second section explores the initiatives that focus on removing the applicability of EU competition law to enable access to collective bargaining for platform workers. This second section examines the four policy options under the Commission consultation process ‘Inception Impact Assessment on collective bargaining agreements for the self-employed – scope of application of EU competition rules’ (European Commission, 2021b) (IIA) and how it influenced the Commission draft guidelines ‘on the application of EU competition law to collective agreements regarding the working conditions of solo self-employed persons’ (European Commission, 2021c) (Proposed Commission Guidelines) to remove EU competition law to enable access to collective bargaining for platform workers.

Initiatives focused on clarifying who should access labour rights

The Parliament aimed to influence the Commission through a resolution centred on clarifying whether platform workers should access labour rights. To achieve this goal, the Parliament Resolution sought to equalise the labour rights of platform workers and non-platform workers ‘of the same category’ (European Parliament, 2021: sec. European Legal Framework 2) through three criteria. First, by ensuring access to labour rights for platform workers by relying on the actual work relationship and not on what the parties formally agree (European Parliament, 2021: secs 5, 8, 10; Novitz, 2022). Second, by ensuring platform workers’ access to trade union membership and collective bargaining. Third, by establishing a rebuttable presumption of a working relationship that reverses the burden of proof for establishing the existence of an employment relationship, forcing the employer to prove there is no working relationship (European Parliament, 2021).

The Parliament Resolution would reduce the dyadic market domination of platforms over platform workers through these three criteria. The rebuttable presumption – underpinned by the first and second criteria – reverses the power of platforms to classify platform workers as self-employed undertakings. If such classification is prevented, platform workers would be deemed workers protected from the operation of EU competition law, thus also protected from structural market domination.

The rebuttable presumption relies on definitional uncertainties that impair its effectiveness, however. For instance, the Parliament Resolution left the EU Member States to decide who is a platform worker and what is a platform (European Parliament, 2021: sec. European Legal Framework 2). Platforms could game such national definitions to recast their relationship with platform workers to rebut the presumption. An example of the capacity of platform companies to successfully rebut a legal presumption can be seen in the case of Spain. Since the enactment of the so-called ‘Ley Rider’ in August 2021, it has been reported that the food-delivery platform Glovo changed the terms and conditions of work with its platform workers, enabling platform workers more schedule and price flexibility, while Uber Eats, another food-delivery platform, started using agency workers (Aloisi, 2022; Aranguiz, 2021).

The Parliament Resolution shows the need to craft sufficiently broad and flexible regulations to alleviate dyadic market domination over platform workers at the EU level. Platforms have learned – and will keep learning – how to circumvent national definitions concerning who should be covered by labour law and normative devices such as the rebuttable presumption to maintain their dyadic market domination over platform workers.

In this context, on 9 December 2021, the Commission issued a proposal for a Directive concerning platform work. The main goal of the proposed Directive is to ensure minimum labour rights for platform workers (European Commission, 2021a: Article 1). To achieve this main goal, the proposed Directive determines three sub-objectives: promote a correct classification of platform workers, ensure algorithmic management fairness and transparency, and improve transparency and the enforcement of rules concerning platform work (European Commission, 2021a). Under this initiative, the correct classification of platform workers is key to ensuring their access to labour rights.

The correct classification of platform workers relies on certain definitions. Article 2 of the proposed Directive defines a platform (digital labour platform) and a platform worker. Under Article 2(1)(1), a ‘“digital labour platform” means any natural or legal person providing a commercial service’ which operates digitally, on-demand, and organises work. Under Article 2(1)(4), a platform worker is any person working on a platform subject to a contract or employment relationship according to national law and based on a factual assessment, with reference to CJEU case-law (European Commission, 2021a: Articles 1(2), 3(1), 3(2)).

Inspired by the Parliament Resolution, the proposed Directive relies on a presumption to promote the correct classification of platform workers. In this case, the proposed Directive outlines specific criteria for triggering the presumption. The criteria range from the capacity of platforms to determine remuneration and performance levels, and to supervise platform workers, to the capacity of platform workers to manage their schedules, hire substitutes or build an external client database (European Commission, 2021a: Article 4(2)). The legal presumption is triggered if two or more criteria are met. Consequently, this presumption can be rebutted if only one or none of the criteria apply, or the work agreement is not an employment relationship according to the laws of a Member State, taking CJEU case-law into account (European Commission, 2021a: Articles 4(2), 4(5)).

The proposed Directive focuses on who should enjoy labour rights by promoting a correct classification of platform workers by relying on a presumption. Like the legal presumption under the Parliament Resolution, this legal presumption makes it easier for platform workers to challenge platforms’ dyadic market power to misclassify workers. If the presumption is effective, the proposed Directive would also ameliorate structural market domination by exempting platform workers deemed to be workers (thus not undertakings) from the operation of EU competition law (Kountouris, 2018; McCrystal and Syrpis, 2014).

Also, the proposed Directive relies on Article 153(1-2)(b) TFEU as its legal basis. Article 153(1-2)(b) TFEU empowers the EU to support and complement the activities of Member States to improve working conditions, including the adoption of Directives setting up minimum requirements for gradual implementation concerning work conditions. To achieve this aim, Article 153(2)(b) TFEU requires ‘having regard to the conditions and technical rules obtaining in each of the Member States. Such directives shall avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings.’ Through Article 153(1-2)(b) TFEU the proposed Directive may help to promote a correct classification of platform workers, provided the measures are justified, the reality on the ground in Member States is taken into consideration, and there are no excessive financial and legal constraints on undertakings. As it is, Article 153(1-2)(b) not only serves as the proposed Directive’s legal basis but also clarifies the boundaries of this proposal.

The normative limit for the proposed Directive in tackling dyadic and structural market domination over platform workers relies on the prohibition of ‘capturing the genuine self-employed’ envisaged under Article 4(3). Interestingly, however, the proposed Directive goes beyond this limit concerning algorithmic management (Article 6), human monitoring and automated systems (Article 7) and the human review of significant decisions (Article 8). In these cases, the norms ensure rights beyond a correct classification of platform workers, showing the Commission’s willingness to ensure these rights also for ‘persons performing platform work who do not have an employment contract or employment relationship, i.e. the genuine self-employed’ (Article 10). This shows that the Commission is willing to extend some rights for platform workers, regardless of employment status. However, this scenario also shows that ensuring labour rights for platform workers is still dependent on their ‘correct classification’ as workers. As will be examined below, the reliance on Article 153(1-2)(b) is not the only normative foundation at play under the initiatives discussed in this article, as the Proposed Commission Guidelines rely on Article 103(2)(c) TFEU. The implications of such divergence in addressing domination over platform workers will be analysed in the following section.

The proposed Directive also shows two shortcomings in reducing dyadic and structural market domination over platform workers. First, platforms can circumvent the criteria that trigger the presumption. Platforms can fulfil just one (or none) of the criteria under Article 4 of the proposed Directive to trigger the presumption and cut the others loose. For instance, platforms can ‘suggest’ instead of imposing a certain rate on platform workers, effectively circumventing the first criterion. Similarly, it is not essential for platforms to directly control workers’ appearance or conduct (second criterion), work quality (third criterion), or work organisation (fourth criterion), or to impair the building of a client database (fifth criterion). Platforms may relinquish most (or all) of these criteria, exercising dyadic market domination by circumventing the presumption. Alternatively, platforms may choose to keep the first criterion by setting rates, while indirectly controlling the second, third, fourth and fifth criteria by relying on clients’ ratings and feedback and the labour market structure. For example, a platform such as Uber can set the rate, fulfilling the first criterion, while leaving the second and third criteria to customer ratings and feedback. Also, because Uber operates on a ‘winner-takes-most’ (Lianos et al., 2019) basis, it does not need to fulfil the fourth or fifth criteria. This scenario enables Uber to circumvent the presumption of the proposed Directive.

Second, Article 1(2) of the proposed Directive helps to identify those in an employment relationship as defined by, among others, the CJEU. The CJEU judgments in Yodel ² and FNV Kunsten ³ show the difficulties of constructing the legal protection of platform workers by attempting to draw a clear distinction between workers and the self-employed. The challenge here is to prevent platforms from exercising dyadic market domination by exploiting the use of a negative account of freedom to identify a working person worthy of protection from labour law and by diminishing definitional uncertainties to deem platform workers to be self-employed.

Initiatives focused on removing the applicability of EU competition law

In this section we analyse two Commission initiatives that, instead of focusing on clarifying who should be covered by labour rights, focus on removing the applicability of EU competition law to enable access to collective bargaining for platform workers in the EU.

In the context of the Digital Services Act Package (European Commission, 2020; Ponce del Castillo, 2020), the Commission launched a process to address access to collective bargaining for the self-employed. This process included the Inception Impact Assessment (IIA) (European Commission, 2021b). This was launched on 6 January 2021 to explore alternatives to extend the reach of collective bargaining beyond the binary divide between workers and self-employed to reach the so-called solo self-employed, meaning ‘self-employed without employees’. In principle, platform workers deemed to be self-employed undertakings would fit the notion of solo self-employed because such workers usually have no employees. Also, the Commission has made it clear that the IIA aims to ensure access to collective bargaining for platform workers (European Commission, 2021b).

Under the IIA, the Commission argued that excluding the solo self-employed from contestatory mechanisms of power such as collective bargaining makes such workers incapable of determining the price of their labour and other terms and conditions of work, leading to social exclusion (European Commission, 2021b). To address this form of exclusion, the IIA envisaged four policy options that remove the applicability of EU competition law to ensure access to collective bargaining for the solo self-employed, although to different degrees of intensity.

The IIA’s four policy options aimed to enable access to collective bargaining for (a) all solo self-employed providing their own labour through digital labour platforms (policy option 1); (b) all solo self-employed providing their own labour through digital labour platforms or to professional customers of a certain minimum size (policy option 2); (c) all solo self-employed providing their own labour through digital platforms or to professional customers of any size, with the exception of regulated/liberal professions (policy option 3); and (d) all solo self-employed providing their own labour through digital labour platforms or to professional customers of any size (policy option 4).

The four policy options would have diminished dyadic market domination over platform workers deemed solo self-employed in increasing degrees of extension, from policy option 1 to option 4, reversing the pattern. Policy option 1 covered only platform workers deemed solo self-employed working for a platform. This policy option gave platforms more opportunities to exercise dyadic market domination, for example, by disguising themselves as something different from a platform, effectively circumventing the application of option 1. In contrast, policy options 2, 3 and 4 exhibited various broader degrees of access to collective bargaining for platform workers deemed solo self-employed compared with policy option 1. Here, platform workers of this kind could have engaged in collective bargaining with a platform, professional customers and even professional customers considered to be liberal/regulated professionals. Such a broader range of options would have diminished dyadic market domination by expanding the range of those with whom ‘solo self-employed’ platform workers could have engaged in collective bargaining.

The four policy options reveal the degrees to which the Commission is willing to remove the applicability of EU competition law to enable collective bargaining for the solo self-employed, including platform workers deemed to be such, providing a valuable tool for platform workers to curb the dyadic and structural market domination of platforms and EU competition law.

There were several definitional uncertainties behind all policy options that limit the capacity of the IIA to ensure access to collective bargaining for platform workers as a tool to tackle dyadic and structural market domination. For instance, the IIA did not define what a platform is, what a professional customer is and who are regulated/liberal professionals, making it easier for platforms to circumvent the policy options by questioning the meaning of these terms. Another definitional uncertainty came from the definition of the solo self-employed and the use of so-called substitution clauses. Some platforms include within the terms and conditions of work the possibility for platform workers to use substitutes or subcontract others to perform the job. Platforms have used substitution clauses to argue that platform workers enjoy more latitude than traditional workers to carry out their work and thus should not be deemed workers but self-employed (Atkinson and Dhorajiwala, 2019; Ford, 2018). The same substitution clauses could now prevent platform workers from being considered ‘solo’ self-employed, putting platform workers with substitution clauses outside all policy options of the IIA. This claim is not far from reality. In Yodel, the capacity of B to hire others, regardless of whether this capacity was exercised, was seen as an indication of ‘truly’ independent self-employed work (Buendia, 2020).

Lastly, the IIA invoked Article 103(2)(c) TFEU as its normative basis. Article 103(2)(c) TFEU enables the Commission to define the scope of Articles 101 and 102 TFEU. Here, the Commission showed its willingness to ensure collective labour rights for the solo self-employed (including platform workers deemed to be such) by restricting the scope of application of Articles 101 and 102 TFEU, effectively removing the applicability of EU competition law. In other words, to ensure that EU competition law will ‘not stand in the way of collective bargaining by those who need it’ (European Commission, 2021b). This normative approach diverges from the proposed Directive’s reliance on Article 153(1-2)(b) TFEU, as discussed above.

The IIA’s normative approach shows some advantages of implementation. Unlike Article 153(1-2)(b) TFEU, under Article 103(2)(c) TFEU, there is no need to take into account conditions and technical rules at each stage of Member State development and consider whether the initiative would hold back the development and creation of small and medium-sized enterprises. Also, there is more latitude in justifying a restriction of EU competition law to favour access to collective bargaining based on Article 103(2)(c) TFEU, as Article 153(1-2)(b) must deal with the restrictions under 153(5). This normative landscape also shows how the Commission is willing to ensure access to different labour rights for platform workers using different normative approaches. The extent to which the two approaches might coexist will be discussed at the end of this article.

Removing the applicability of EU competition law as a way to ensure access to collective bargaining for people such as platform workers was further explored by the Commission through guidelines that complement the proposed Directive. The Proposed Commission Guidelines are part of EU soft law (Senden, 2005) and interpret the scope of Article 101 TFEU in the context of platform work and other atypical work arrangements. In other words, through the Proposed Commission Guidelines, the Commission indicates how it will apply EU competition law in individual cases concerning solo self-employed access to collective bargaining.

To the Proposed Commission Guidelines, the solo self-employed are persons ‘who do not have an employment contract or who are not in an employment relationship and who rely primarily on their own personal labour for the provision of the services concerned’ (European Commission, 2021c). The Proposed Commission Guidelines acknowledge that some solo self-employed are excluded from the proposed Directive. However, these excluded solo self-employed may still need to exercise their collective voice to address the imbalance of bargaining power to improve their working conditions. Inspired by the IIA, the Proposed Commission Guidelines assume that the solo self-employed have little bargaining power as they generally do not independently determine their market actions. Thus, the solo self-employed must be shielded from the operation of Article 101 TFEU regardless of national developments, worker status or the identification of bogus self-employment (European Commission, 2021c: para 24).

Against this background, the Proposed Commission Guidelines distinguish two ways of protecting the collective agreements of solo self-employed persons by removing the applicability of EU competition law. First, situations in which collective agreements of the solo self-employed are not subject to EU competition law; second, situations in which such collective agreements are subject to EU competition law, but the Commission will not intervene.

In the first case, collective agreements of this kind would not be subject to Article 101 TFEU if the solo self-employed in question are in a situation comparable to that of workers. The Proposed Commission Guidelines contain three categories to clarify when the solo self-employed can be in such a situation. First, when they are economically dependent on their counterparties. This would be the case when the solo self-employed earn at least 50 per cent of their total annual work-related income from a single counterparty (European Commission, 2021c: para 25). Second, solo self-employed persons working ‘side-by-side’ with workers for the same employer. That would occur when solo self-employed and workers share the same labour directions, do not bear commercial or financial risk or exercise any independence in relation to performance of the tasks allotted to them by their counterparties (European Commission, 2021c: para 26). Third, solo self-employed working through digital labour platforms. The Proposed Commission Guidelines take the definition of platform from Article 2 of the proposed Directive: ‘“digital labour platform” means any natural or legal person providing a commercial service which meets all of the following requirements: (i) it is provided, at least in part, at a distance through electronic means, such as a website or a mobile application; (ii) it is provided at the request of a recipient of the service; and (iii) it involves, as a necessary and essential component, the organisation of work performed by individuals, irrespective of whether that work is performed online or in a certain location;’ (European Commission, 2021c: para 30). The Proposed Commission Guidelines acknowledge the meagre bargaining power of individual platform workers deemed solo self-employed in relation to platforms (European Commission, 2021c: para 28), shielding collective agreements over working conditions for the whole category of platform workers from Article 101 TFEU. In other words, under the Proposed Commission Guidelines, EU competition law will not stand in the way of platform workers deemed solo self-employed negotiating collective agreements on working conditions with platforms (European Commission, 2021c: para 31).

In the second case, the Commission will not take action against the collective agreements of the solo self-employed, even if such agreements are subject to Article 101 TFEU. The Commission makes the proviso that such agreements should function to correct an imbalance in the parties’ bargaining power (European Commission, 2021c: para 32). The imbalance in bargaining power between solo self-employed and their counterparties is considered to exist in at least three cases. First, when the solo self-employed negotiate over working conditions with representatives of an entire sector. Second, when solo self-employed counterparties’ annual aggregate turnover exceeds €2m or their workforce is more than 10 persons. Third, when national rules shield collective agreements concluded by the solo self-employed, provided such rules aim to address an imbalance of power against them (European Commission, 2021c: para 35).

The Proposed Commission Guidelines reduce platforms’ dyadic market domination over platform workers deemed solo self-employed by using a broad definition of ‘solo self-employed’. This definition leaves fewer options for platforms to exclude such platform workers from exercising collective bargaining by exploiting definitional uncertainties concerning who is solo self-employed. The Guidelines also reduce structural market domination by removing the applicability of EU competition law. The collective agreements of ‘solo self-employed’ platform workers would be excluded from Article 101 TFEU, provided the relevant platform workers are in a situation comparable to that of worker. Alternatively, the collective agreements of this kind of platform worker would not be penalised, provided there is a tangible imbalance of bargaining power.

The Proposed Commission Guidelines do, however, exhibit some shortcomings worth examining. First, the Proposed Commission Guidelines’ definition of solo self-employed is broader than the one proposed by the IIA. The IIA defines the solo self-employed as self-employed without employees. In contrast, the Proposed Commission Guidelines refer to solo self-employees as persons ‘who rely primarily on their own personal labour’ (European Commission, 2021c: para 19), which may help to prevent platforms from circumventing the definition of solo self-employed. It is still unclear, however, whether this broader definition would help tackle the use (and abuse) of substitution clauses on platform work, as discussed above. As in the case of the IIA, substitution clauses in platform workers’ contracts could lead to such workers being deemed independent self-employed (and not ‘solo’ self-employed), thus outside the Proposed Commission Guidelines’ protection.

Second, platforms can still exercise dyadic market domination by challenging the situations in which collective agreements of platform workers deemed solo self-employed are not subject to EU competition law. For example, a platform might try to ensure that platform workers deemed solo self-employed make less than 50 per cent of their total annual work-related income from it by using algorithmic management techniques (International Labour Organization, 2021: sec. 2.4), or by establishing it in the terms and conditions of the contract. Platforms can also prevent ‘solo self-employed’ platform workers from working ‘side-by-side’ with workers of the same counterparty by awarding them the ‘freedom’ of choosing their own schedules, rejecting direct orders and working as observed in FNV Kunsten, ⁴ Yodel ⁵ and the Advocate-General’s opinion in A.G. Lawrence. ⁶ Alternatively, platforms can disguise themselves as non-digital labour platform companies by taking advantage of definitional uncertainty. For example, platforms may claim they do not organise the work performed by platform workers deemed solo self-employed; this is essential for meeting the definition of a digital labour platform as used by the Proposed Commission Guidelines (European Commission, 2021c: para 30).

But the Proposed Commission Guidelines may still protect access to collective bargaining for platform workers deemed solo self-employed by ensuring that the Commission will not seek to enforce EU competition law in cases characterised by an imbalance of bargaining power. For instance, the Commission will not enforce EU competition law if these platform workers attempt to engage in collective bargaining with platforms representing the whole industry. Depending on what ‘the whole industry’ means, it should not be difficult for platform workers deemed solo self-employed to meet this criterion as platforms’ market concentration is high (International Labour Organization, 2021, sec. 1.1.4). Also, the Commission will not act in cases in which platform workers deemed solo self-employed engage in collective bargaining with platforms whose aggregate turnover exceeds €2m, or whose workforce exceeds 10 people. This second option shows a low monetary and staff threshold, making the breaking up of firms to avoid this option more difficult. Lastly, the Commission will not act in cases in which Member States restrict EU competition law to address imbalances of bargaining power against platform workers deemed solo self-employed. In this case, the Proposed Commission Guidelines focus on removing the applicability of EU competition law through inaction, enabling access to collective bargaining for ‘solo self-employed’ platform workers as a valuable tool to address dyadic and structural market domination, provided there is an imbalance of bargaining power.

Against this background, it can be argued the Commission has created three paths for tackling domination by protecting platform workers’ labour rights. The first comes from the proposed Directive, and is based on clarifying platform workers’ status to ensure their access to labour rights. The second and third paths draw from the Proposed Commission Guidelines to ensure access to collective bargaining for platform workers deemed solo self-employed by removing the applicability of EU competition law. The second path is based on aligning platform workers deemed solo self-employed with ‘workers’. The third path aims to identify an intolerable imbalance of bargaining power between platform workers deemed solo self-employed and the platforms.

It can be argued that these three paths may complement each other to ensure platform workers can access labour rights. The first path is the most difficult to fulfil as it depends on accessing worker status and meeting the definition of a digital labour platform. However, it also provides the highest protection against platforms’ dyadic market domination, going beyond merely ensuring access to collective bargaining, as observed in the second and third paths. The second path ensures access to collective bargaining for the platform workers in question who do not meet the criteria for the first path, but whose situation is comparable to that of workers. The second path is broader in scope than the first, as its definition of solo self-employed is broader than the latter’s definition of a platform worker. Also, the second path does not depend on determining the worker status of platform workers deemed solo self-employed to ensure their labour rights, as the first path does. However, the second path only aims to ensure access to collective bargaining for ‘solo self-employed’ platform workers, leaving aside other valuable labour rights envisaged under the first path. The third path may serve as a closure rule. It ensures access to collective bargaining if there is an imbalance of bargaining power worth correcting between ‘solo self-employed’ platform workers and platforms. The third path is significant as the Commission acknowledges that EU competition law should stand aside when there is such an imbalance of bargaining power.

Conclusion

The Commission and the Parliament initiatives analysed in this article show the EU’s willingness to ensure access to labour rights for platform workers, including access to collective bargaining for platform workers deemed solo self-employed. Such willingness is expressed in initiatives focusing on who should enjoy labour rights, and on removing the applicability of EU competition law. Regardless of the chosen approach, all the initiatives examined here have shortcomings in addressing dyadic and structural market domination.

There is also the risk of interpreting the Commission’s three paths as complementary, creating different sets of rights for different kinds of platform workers, impacting how dyadic and structural market domination over them is addressed. Platform workers meeting the first path criteria would enjoy access to many more labour rights than just access to collective bargaining. Such workers would have more tools to address dyadic and structural market domination (such as access to individual labour rights) than on the second and third paths. Such an imbalance raises questions concerning the operation of the three paths and platform work. Why were all the labour rights in the proposed Directive not extended to the solo self-employed (including platform workers deemed to be such) under the Proposed Commission Guidelines? Another question is why the Proposed Commission Guidelines only ensure access to collective bargaining for the ‘solo self-employed’ (including platform workers deemed solo self-employed) and not to other types of workers? Lastly, why do the Proposed Commission Guidelines only ensure access to collective bargaining and not to other key collective labour rights, such as the right to strike?

A ‘republican’ (see above) approach to freedom as non-domination may justify an alternative proposal to address the shortcomings outlined in this article. In this regard, a way to address dyadic and structural market domination over platform workers in the EU would be to place the idea of inequality of bargaining power in the centre of the analysis of who should enjoy labour rights and the extent to which the application of EU competition law should be restricted. Putting the idea of inequality of bargaining power at the centre of the analysis of who should enjoy labour rights would make policy initiatives less dependent on elusive definitions such as who is self-employed, solo self-employed, or a platform worker. Every person who works (Novitz, 2022) and is subject to a form of inequality of bargaining power should have access to labour rights to address dyadic market domination. In this regard, platform workers should have access to labour rights to address an imbalance of bargaining power favouring the employer, regardless of whether they meet the definitions and criteria of the different policy options or the requirements of the first, second or third path outlined above. Similarly, EU competition law should recede to the point where the inequality of bargaining power becomes tolerable. Concerning platform work, this limit can be based on whether platform workers can access collective labour rights as tools to address the inequality of bargaining power between them and the platform that creates domination.

This approach uses the idea of freedom as non-domination to justify the expansion of labour law to ensure that all working people in the EU, including platform workers, may access all labour rights to challenge domination. This vision may also show a way forward to justify the expansion of labour law to other borderline areas where labour law is very much needed.