Abstract
This article deals with personal work, a concept of doctrinal origin that is emerging as an alternative to the traditional bipartition between subordinate and self-employed work. EU law has used the concept of personal work in three different contexts and with different shades of meaning: in the field of anti-discrimination law, in the field of collective bargaining, and in that of platform work. A composite picture emerges, but converges towards the universalisation of protections in favour of the person who works, regardless of the classification of the relationship (anti-discrimination law, platform work), or the solo self-employed worker (collective bargaining).
Foreword: the concept of personal work
The legal debate on work and its transformation has long acknowledged the inadequacy of traditional categories in classifying different forms of work, defining their identities and selecting the protections that labour law must guarantee. As a matter of fact, in our advanced societies, work is no longer identifiable with the employment that was typical of the Taylor-Fordist era. Work – self-employed work included – is the expression of the social relations of production (gesellschaftliche Produktionsverhältnisse) 1 which require adequate forms of universalistic protection. International labour law also participates in this profound normative and cultural revision, and seeks to create a universal labour guarantee regardless of the contractual typologies and the classification of the relationships in terms of employment or self-employment. 2
Moreover, we might place this new expansionary impulse in the context of a more complex crisis of labour law in the face of the world of work's growing social protection needs that require adequate regulatory responses, as evidenced recently in the area of digital platform work. When work has a direct relationship with the material conditions of production, we need protection. This need is no longer the result of certain ‘classifications’ (which result in inclusion and exclusion), but emerges directly from the existential condition of the worker and from his/her ‘vulnerability’. 3
As a result, different ideas have been put forward to rethink labour law's meaning and axiological orientation according to a broader perspective than the traditional one that is based on the category of subordination. 4 Among these proposals, the European Union law seems to favour the concept of personal work, which in turn is delineated in different ways in the different regulatory contexts and depending on the different areas of intervention of EU law. 5
From this perspective, the following forms of work come into focus: personal work that is independent of any classification in terms of subordination or autonomy, useful for defining the scope of anti-discrimination regulations; personal self-employment (in its turn including ‘economically dependent’ self-employment), useful for identifying the limit to recognising the right to collective bargaining without this prerogative conflicting with European competition law; platform personal work, useful for extending the protections regarding the algorithmic management of employment relationships, regardless of the nature of them.
In all three cases, the EU law's approach is universal and uses the concept of ‘person’, ‘personal work’, or ‘personal self-employment’, instead of the old employment-self-employment dichotomy, to indicate a new and more advanced trend in labour law that is characterised by the attempt to overcome subordination. This does not mean abandoning the historical employment-self-employment dichotomy, and the doctrine actually still persists in the pursuit of the analysis of old and new classification techniques and methods, 6 in order to draw the boundaries of subordination 7 or even to broaden that notion. 8 However, a movement of a different nature is now gaining pace, trying to overcome such a binary structure, in order to extend the scope of protections to work ‘in all its forms and applications’, 9 and in particular to the work of ‘all those who undertake to perform their work for others, without prejudice to people who operate as genuine economic actors on their own account’. 10
The issue of personal work therefore opens a new door for labour law, and must be specified in its contents, in the investigation methodology and in the policy indications.
From a theoretical point of view, we need to clarify the profiles of the category we are talking about, given that it is a doctrinal notion rather than a normative or jurisprudential one. Then, we need to stress that the emergence of the notion of ‘personal work relationships’ does not coincide with the revival of an expanded notion of subordination. Actually, the latter is considered as a legal category that is not deserving of further investment in the near future, given the risk that the employment contract bears minor protective capacity, 11 and due to the effects of social exclusion that a broadening of the notion of subordination entails anyway (i.e. exclusion of self-employment from the social protection system). On the contrary, what I advocate for is a universalistic extension of the scope of labour law beyond the sphere of subordination, into an indistinct area of personal work relationships that includes self-employment, with the sole exclusion of ‘genuine own-account business’. 12
That said, I should also point out that the formula of personal work relationships is legally empty, or – better – it is not typologically defined, and that is probably its main advantage. In fact, these ‘relationships’ do not present any specific typological characterisation in the context of the services having as their object a performance of a task (facere), nor a precise subjective boundary. Therefore, they may concern, indifferently, employment, parasubordinate work and self-employment in a proper sense.
However, this ‘macro-category’ (or the set of different classes of employment relationship united by the element of personal performance in favour of third parties) is distinguished from a genuine ‘own-account’ business, which – even though it is abstractly placed in the broad category of personal work relationships – should be excluded from the scope of labour law (or in any case, from the protections attributable to the category involved). The problem is that the distinction between personal work relationships and activity carried out on one's own account is taken for granted, or in any case is not sufficiently clarified, so as to be elusive. What does it actually mean to affirm that a person is a worker falling into the category of personal work relationships, ‘unless he/she carries out a genuine business on his/her own account’?
Such statement sounds, at first, like a repetition – at a higher level of abstraction – of the usual distinction between employment and self-employment. The self-employed worker is in fact the one who provides a service through the self-organisation of their own means, that is, outside of a pattern of dependence upon others, and therefore on their own.
It would seem, therefore, that our thesis excludes self-employment relationships from the scope of personal work relationships, which were included in the premise of the reasoning. However, such a conclusion would have perverse effects. On the one hand, because the idea of working on one's own account is very problematic, given that even self-employed work is – upon closer inspection – an activity carried out in the interest and ‘on the account of others’. On the other hand, because the independence requirement should be further specified, given that organisational independence can coexist with economic dependence, as, for example, with the Spanish TRADE or the Italian parasubordinate worker, 13 and in the case of ‘quasi-salaried person’ under German law. 14
Proponents of the personal work category argue that the best indicator of the personal work relationship is the worker's position within the labour market, thus distinguishing between those who make a living from their own work and those who make a living by organising the work of others, by organising capital. 15
This definition better specifies the previous one by adding the qualifying element of the organisation of the work of others through the organisation of capital (and, therefore, also of means). Moreover, it seems to be in line with the notion of enterprise as an economic activity organised by the entrepreneur. If this is the case, personal work relationships should also include all genuine self-employed workers (regardless of their status of economic dependence or organisational dependence). The reason for this is that self-employment is not simply identifiable with the notion of entrepreneur or with that of company, if not in accordance with European competition law, which however is completely irrelevant for the classification of employment relationships in the Member States. 16
Now, if the objective of the advocates of personal work were to extend the entire labour law to all work performances, including personal self-employment (even ‘predominantly personal’, considering, for example, the definition of self-employment adopted by the Italian legislator), 17 with the exclusion of entrepreneurial activities alone, it would be a universalistic vision that would be difficult to implement. In fact, the situation of the employed worker and the self-employed worker are not, in terms of social needs, exactly superimposable, and this is the reason for the spread of hybrid intermediate categories and the creation of statutes differentiated by reason of these subjective differences. The verdict on these intermediate categories is that they remain problematic. 18 Positive experiences, such as that of Canada, are accompanied by controversial experiences, such as the Italian one. 19 In practice, however, it is significant to note that legal systems tend to try to act with a mix of universalism and selectivity, extending certain protections to all self-employed workers without exception (e.g., in health and safety, bans on discrimination or protection of privacy) and modulating protections in a more selective way for some categories of weak but genuine self-employed workers (for example, in matters of income protection, limitating working hours, social security, etc.). 20 Most of the proposals that look favourably on the expansion of the scope of labour law beyond subordination - from the Supiot Report onwards 21 - introduce some selective criteria both in relation to extendable rights and with reference to the subjective characteristics of the worker or of the work performance (economic dependence, para-subordination, hetero-organisation, etc.). 22 Similarly, the pieces of legislation that have extended the application of labour law (in its entirety or in part) to non-employed workers have done so due to particular objective conditions of the production sectors involved, 23 or with reference to contractual conditions of economic dependence, 24 or to sanction abuses of economic dependence. 25
The notion of personal work, however, has no selectivity, except to a priori excluding any protection for entrepreneurial work. Yet, sometimes, even entrepreneurial work has been subject to assimilation or selective extension of protections, due to the subject's condition of imperfect subordination. The French case of the gérants non salariés is exemplary. 26
However, the doctrine advocating for the adoption of this new category indicates a further criterion for identifying the personal work relationship, namely, the ‘weakness of the worker on the market’ (regardless of the classification of the employment relationship) in the face of ‘the greater contractual power of the employer’. 27
This reference, which presents a sociologically elusive situation (weakness on the market), calls into question the applicability of the personal work relationship to self-employment relationships, which do not have an employer as a counterpart. On the other hand, weakness on the market cannot constitute a reliable regulatory criterion for guiding the scope of labour law, as it is an absolutely elusive and uncertain fact. As a matter of fact, no legal system has ever considered weakness on the market as a criterion for applying labour law, whose function consists rather in rebalancing contractual power between the parties. 28 It is also true, however, that the old justifications for the intervention of labour law are becoming obsolete, and that labour protection must find new and more articulated justifications, even regardless of the disparity in bargaining power. All the reflection of scholars in this matter is aimed at redefining the field of application of protections with a mix of selectivity and universalism. What is not yet clear and defined are the criteria on the basis of which to expand the field of application beyond the sphere of subordination, and, in this sense, the theory of personal work, while greatly simplifying the problem in some ways, offers an important methodological indication consistent with the criticism of self-employment and its traditional position outside the labour law system. 29
Ultimately, in order to become truly and significantly operational, the doctrine of personal work relations should be revisited in a double sense, more selective and more universalistic: on the one hand, by introducing qualifying elements in a selective sense (such as, for example, the economic or organisational dependence of the worker); 30 on the other hand not excluding in a universalistic way entrepreneurial work if it shows the need for social protection deriving from structural factors of contractual imbalance and/or (economic or organisational) dependence towards the client.
Following this general premise, I am going to analyse the three areas in which the EU law has recently used the concept of personal work, or personal self-employment, in order to clarify how a specific discipline is ascribed to a broader field of employment relationships than that of employment, according to a methodology that ignores the classification in typological terms.
The first area is that of anti-discrimination law. In this case, Directive 2000/78 comes into play in the interpretation provided by the Court of Justice in its ruling of 12 January 2023 in case no. C-356/21, which represents a milestone in the evolution of the concept of personal work.
The second area concerns the right to collective bargaining, in its conflict with European competition law. The conflict seems to be on its way to being resolved thanks to the adoption by the Commission of the Guidelines aimed at guaranteeing self-employed workers the right to collective bargaining, thus avoiding the sword of Damocles of competition law.
The third area is that of platform work. In this case, considering the tendency of companies to exclude the protections of labour law due to ambiguous or incorrect classifications of the employment relationship and the high number of genuine self-employed workers in need of protection, the EU is going to introduce not only a (rebuttable) legal presumption but also a universal protection against the abuses of digital management, imposing fairness, transparency and responsibility in the algorithmic management of employment relationships.
The anti-discrimination law
A self-employed Polish media worker had his seven-year employment relationship under a series of employment contracts terminated after publishing a video promoting tolerance towards same-sex couples. The Polish judges, doubting the conformity of the national law with Directive 2000/78 on the prohibition of discrimination in matters of working and employment conditions, submitted a request for a preliminary ruling to the Court of Justice. The question asked by the Warsaw Court was whether the refusal to stipulate a self-employment contract due to a party's sexual orientation fell within the scope of Directive 2000/78, and more precisely whether such a contract constituted a condition ‘of access to self-employment’, as provided for by Art. 3(1)(a) of the Directive, which concerns, precisely, the ‘conditions of access to employment and work, whether employed or self-employed’.
First and foremost, we need to point out that the notion of self-employment in the Directive is not defined in relation to that of the Member States, nor had it ever previously been clarified by the Court. Therefore, this notion had to be clarified in its meaning and scope as an autonomous notion of Union law. The notion of self-employment was outlined by the Advocate General, starting from the general concept of supply of goods and services and placing it in a logical-legal connection with the expression ‘employment and working conditions’, which delimits the scope of Directive 2000/78. Consequently, if the supply of goods or services is the result of personal work carried out autonomously, the category of self-employment is integrated pursuant to Art. 3(1)(a) of the Directive. As a result, the self-employed or personal worker is protected against discrimination with regard to ‘employment and working conditions’ pursuant to Art. 1 Dir. 2000/78. We can also infer this from the combined provisions of Recital 4, which expressly refers to Convention No. 111 of the ILO (which prohibits discrimination in employment and professions with reference to all workers, including the self-employed); and Recital 9, which states that ‘employment and occupation are key elements in guaranteeing equal opportunities for all and contribute strongly to the full participation of citizens in economic, cultural and social life and to realising their potential’. As the AG rightly observed, recalling the jurisprudence of the Court of Justice on the point, these Recitals ‘suggest that Directive 2000/78 aims to protect all those who participate in society by providing their work’ (para 53).
At this point, we are dealing with the true root of a universalistic vision of work: basically, with what work is in contemporary society, regardless of the distinctions that it has acquired within legal systems. Moreover, this vision of work, its being not a business, a recreational or a mere voluntary activity, etc., is defined in relation to the purpose of work itself, to its material rationality and ideal, namely, the realisation of the person within the society in which the very characteristics of the personalities are implemented.
This vision of work as the foundation of the human person and one's social fulfillment has a profound philosophical and moral basis, rather than a legal one. The working person is in fact someone fighting for recognition, who in the Master-Servant dialectic overturns their own destiny and becomes free to participate, with full dignity, in economic, cultural and social life, and thus free to be realised as a person. As the legal philosopher Giuseppe Capograssi wrote, the working person fights for equality, which is a logical component of Recognition, and in doing so ‘enters the level of law, dignity, value’, and recovers their ‘ethical dignity’. 31 It is that same citizen and working person that a ‘social’ constitution like the Italian one wants to become the protagonist in the ‘political, economic and social organisation of the country’ (Art. 3 Italian Constitution), and for this reason, the Republic is committed to removing the economic and social obstacles that effectively limit freedom and equality, thus preventing the full development of the human person and the effective participation of all citizens in the life of democratic institutions.
This profound and foundational connection between work, the person and participation in the social values of human coexistence (economic, cultural and social life) as a function of the ultimate goal of personal fulfillment (which is not the selfish and individualistic triumph of the isolated subject, but, on the contrary, the expression of social, intersubjective and community freedom) is expressed in the ‘right to work’. Moreover, by recalling the words of the Declaration of Philadelphia, we might define the right to work as ‘the guarantee of employment and work’, which all human beings use in order to realise their right ‘to strive for their material progress and spiritual development in conditions of freedom, dignity, economic security, and with equal opportunities’.
The Charter of Fundamental Rights of the European Union actually refers to the right to work. In its Art. 15 it establishes the right of every person to work and practice a freely chosen or accepted profession. For this reason, Directive 2000/78 aims to protect all those who participate in society by providing work, and for this reason, the reference can only be to work in its broad and universalistic meaning, which rejects distinctions or, worse, separations between employment and self-employment. Consequently, self-employment can fully valorise work in general, that is, the activity allowing citizens ‘to realise their potential and earn their living by offering their work’ (AG para. 55).
This legal conception of work – which emerges from the interpretation of human activity as an anthropological and not merely socio-economic category – is now accepted in the jurisprudence of the Court of Justice. We are referring to the conclusions of the Advocate General Richard De La Tour, confirmed by the Court in the HK case. De La Tour claims this Directive aims to eliminate for reasons of social and public interest, all obstacles based on discriminatory reasons to the access to the means of subsistence and the ability to contribute to society through work, 32 regardless of its legal form. The result is a broad interpretation of the notion of ‘work’, such as not to limit the scope of Directive 2000/78 ‘solely to the conditions for access to jobs occupied by ‘workers’ pursuant to Art. 45 TFEU’, 33 which uses the term ‘workers’ referring to the right to free movement or secondary legislation adopted on the basis of Art. 153 TFEU.
That said, we now need to look at an important passage in the opinion of the Advocate General in the case, who recognises the need for a broader concept of ‘working person’ that is suitable for the 21st century scenario. Nowadays, writes the AG, ‘a person who works is someone who invests his or her own time, knowledge, skills, energy, and often enthusiasm, in order to provide a service or create a product for someone else, and not for himself or herself, for which that person is (in principle) promised remuneration’ (para. 60). This ‘de-typologised’ redefinition of work involves the social characteristics of the new legal forms regarding how human activities are exchanged on the market. What is mostly relevant is the awareness that – in its modern version – ‘work’ is always a performance in favour of others: it is always an instrumental activity, functional to the capitalist production process, and for this reason, alienated work, entfremdete Arbeit. 34 Because the worker is deprived of what he/she has produced – and not only by reason of the exercise of the client's ‘direction’ prerogatives – placing such work within the scheme of locatio operis often conceals the illusory mirage of independence and legal autonomy (which should characterise the paradigm of self-employment). 35
The traditional legal construction, based on the oppositional dualism between the forms of facere, thus demonstrates all its inadequacy concerning the conception of ‘work’ – that is to say, in the words of the Advocate General, ‘both the activity and the result of that activity’ (paragraph 62). The old distinction between obligation of means (employment) and of result (self-employment) is completely overcome (at least for qualifying purposes in labour law), because it makes no difference whether a worker hands over the result of his or her work to its recipient in advance, as happens in a classic employment relationship, or offers it as a good or service to recipients afterwards. What is relevant, from the definitional point of view, is the fact that ‘In both cases, the worker earns his or her living and participates in a society by investing his or her personal work.’ (paragraph 62).
Therefore, it is crucial to observe the inadequacy of any paradigm based on a rigid binary distinction and the awareness of the progressive indistincness of personal work, as part of a complex social space where the different forms of work are mutually inter-connected rather than rigidly categorised. In this common space – and this is a further point of the analysis – human work, in all its multiple forms and applications, faces an accentuated and common condition of social vulnerability (for example, as in the case decided by the Court of Justice, vulnerability to the withdrawal of the other party, which may occur at any moment during the work relationship, from its inception to its extinction). This vulnerability, which unites the different forms of work performed for others, is therefore reflected in the regulations of the work relationship, be it employment or self-employment, triggering the need for protection. Thus, for example, the vulnerability in the face of the employer's or client's power of withdrawal places the employee and the self-employed on the same level, highlighting the need for a common protective regulation. In this way, vulnerability, as a material, socio-economic condition of the subject which labour law must address, strongly relativises the historical distinction between employment and self-employment, reducing its relevance.
One of the fields in which the worker's vulnerability is measured is dismissal, as a unilateral act within the context of an employment relationship. If this situation of vulnerability is compared with the situation of a self-employed worker, who technically cannot be fired, we need to ask ourselves whether Art. 3(1)(c) of Directive 2000/78, which, concerning ‘employment and working conditions, including dismissal conditions and remuneration’, does not expressly refer to self-employment (unlike subsection (a)), can be considered as also applicable to self-employment relationships.
The absence of reference to self-employment in Art. 3(1)(c) is easily resolved by the AG attributing it to unclear legislative drafting, and the Court overcoming it with an impeccable systematic argument (i.e. the protection against discrimination extends to the professional relationship in its entirety (paragraph 56)). Then, the ruling covers this point with reference to one of the passages in the request submitted by the referring court, namely, whether the refusal to conclude a contract with a self-employed worker on the basis of his sexual orientation can be considered as a manifestation of a limitation of the ‘conditions of access’ to self-employment, also concerning ‘employment and working conditions, including dismissal and remuneration conditions’, pursuant to Art. 3(1)(a) and (c) of Directive 2000/78. In this case in fact, the self-employed worker, due to the client's decision not to conclude a new employment contract on the basis of the his sexual orientation, suffered a double discriminatory vulnerability: he was prevented from accessing self-employment (Art. 3(1)(a)) and he was forced to terminate his employment relationship (Art. 3(1)(c)), which had lasted seven years.
Therefore, the notion of dismissal is relevant. According to the Polish Government, a self-employed worker is not bound by an employment relationship under which one party can dismiss the other. But this technicality was rejected by the Court, which accepted the statements of the Advocate General. According to the latter, ‘it is true that self-employed workers cannot be dismissed’, but this is to the extent that the term ‘dismissal’ is used only with reference to employment and not also with reference to other methods of termination of an employment relationship, such as the involuntary termination of the activity of a self-employed worker. In this case, the self-employed worker experienced a situation that was similar to the dismissal of an employed worker, according to circumstances which the judge needs to verify (paragraph 65).
Furthermore, we should observe that in the context of Directive 2000/78 the term ‘dismissal’ is used to indicate and exemplify employment and working conditions, without strictly precluding the assessment of subjective situations other than dismissal. However, such situations can substantially be compared to dismissal, as happens when a self-employed worker loses a client or involuntarily ceases his or her activity. Therefore – according to the AG – the provision involved must be applied ‘to all conditions of employment, including its termination’.
Consequently, and this is particularly relevant in the perspective of labour law extending beyond subordination, as an employee can involuntarily be dismissed, a person who has carried out a self-employed activity may be forced to cease that activity due to his or her contractual counterparty and may be in a situation of vulnerability comparable to that of a dismissed employee (paragraph 63 of the sentence).
The Court of Justice uses the pragmatic, but definitely axiological, language of the person's ‘vulnerability’ (that is – etymologically – of their aptitude to be harmed) as a justification for protections. It is a condition of vulnerability and not an abstract classification of the employment relationship which, given the dynamics of current social relations of production, requires and justifies the use of protections.
This is not, indeed, an isolated case. As a matter of fact, with reference to the matter of freedom of movement and the rights deriving from Directive 2004/38/EC, the Court of Justice had already stated that the involuntary termination of activity by a self-employed worker is similar to the dismissal of an employee. More specifically, it ruled that a Romanian citizen, who entered Irish territory to carry out self-employed work (as a painter) and was subsequently forced to cease his activity due to the economic recession (and therefore due to a lack of work for reasons beyond his control), had the right to benefit from the protections provided for by the Art. 7(3)(b) of Directive 2004/38. Consequently, that individual could maintain the status of self-employed worker in order to register at the competent employment office of the Member State as a person seeking employment, and receive the unemployment benefit. 36
We therefore need to focus on the following point: in the broader conception of the idea of the ‘working person’, the different legal frameworks available in each Member State are not relevant, since ‘What is important for its application is that a person engages in personal work, irrespective of the legal form under which the work is provided.’ (emphasis added) (AG, paragraph 66).
It is true that the Advocate General is referring, in the case we are analyzing, to the specific problem of the application of Directive 2000/78, and not to the application of a broader regulatory system of employment protection. It is also true that, due to the peculiar function of the anti-discrimination rules of the European Union, the AG claims they should ‘rely on an even wider view of personal work, which does not exclude businesses if a business owner provides his or her personal work’, because (paragraph 69) such an expansive attitude would be justified by the different objectives of anti-discrimination and employment legislation. It is true, in short, that the AG (but not the Court: see below), due to the peculiarity of anti-discrimination law, seems to picture a broader scenario than the very concept of ‘personal work’, thereby distinguishing between the proper function of labour law and that of anti-discrimination law. According to this perspective, while labour law protects the worker against the person to whom he/she supplies goods or services ‘on the assumption that he/she is in a relationship of subordination and, therefore, in a weaker position in the context of such employment relationship’, the Directive, adopted on the legal basis of Art. 19 TFEU, pursues the different objective of ‘creating equal employment opportunities for all’.
This interpretation of the AG seems to reproduce the usual justification of labour law as a system based on subordination, leaving to other regulatory systems (in this case, the anti-discrimination law) the function of ratione materiae that also protects other forms of work (like self-employed work), but it does not hold water.
EU law supports virtuous linkages between different but interdisciplinary rationes, which are enriched and defined in relation to certain elements that characterise legal situations in all their complexity. The prohibition of discrimination of Directive 2000/78 will not be understood outside the typical logic of labour law. Within a discipline aimed at protecting the fundamental rights of the person, labour law can channel the peculiar connotation of values deriving from the socio-economic condition where both employees and self-employed workers find themselves within the context of modern social relations of production, or, more broadly, in the social relations on the labour market.
In short, overcoming subordination as a hegemonic category of labour law is not equivalent to dissolving the protection paradigm in the ‘empty’ and formal concept of the person. On the contrary, it may relaunch the very close connection between the idea of the person and work, in order to understand the condition of social need of the person within work, in the context of the social relations of production.
Furthermore, this separatist logic of different regulatory frameworks (on the one hand labour law, and on the other, anti-discrimination law) is contradicted by the AG, who mostly focuses on the importance of the concept of ‘personal work’, and not, generically, on that of the ‘person’. The subject matter of the Directive involved is not generically the human right to equal treatment, as we understand it from the general purpose envisaged by Art. 3(3) of the Treaty on European Union (i.e. ‘combating social exclusion and discrimination’). Consequently, the Directive does not concern the person or the citizen or the subject in their abstract nature, but their peculiar condition as person-worker, that is, as a subject ‘situated’ within the socio-economic processes of production and the market. It is therefore not correct, in my opinion, to argue that in this case the personal scope is ‘autonomous rather than dichotomous’. 37 It is certainly not dichotomous, but it is not autonomous either, because in the same legal-typical scheme of the Directive the prohibition of discrimination is ‘embedded’ in the working condition of the person, as a ‘worker’ (regardless of any further classification).
By considering the activity offered on the market by an IT expert in her opinion, the AG highlights how there is no substantial difference, in terms of the person’s need to be protected in the exercise of their right to make a living through one's work, between carrying out this activity as an employee or a self-employed worker, or in the form of a business activity. In fact, the AG wonders: if there is no problem in admitting that the anti-discrimination law should be applied whenthe person is looking for a job in the traditional sense, ‘Why should the same not apply in all other situations where she was offering her work on the basis of contracts for goods or services concluded with her as a person, or on the basis of contracts for goods or services concluded with her company, but promising her personal work?’ (paragraph 81). In both cases the person offers a job that someone else needs. Consequently, the application of the Directive should also concern the supply of goods and services ‘as long as a provider offers his or her personal work in order to make his or her living’ (paragraph 86).
As stated above, the Court and the AG do not agree on this point (since the AG also extends the scope of the Directive to include entrepreneurial work) and the former remains focused on the notion of personal work, which constitutes the core of the scope of the discipline.
We can summarise the complex argumentations of the Court in this way: 1) the Directive applies to all persons regardless of the activity and at all levels of the professional hierarchy (paragraph 38), with the exception of the supply of goods and services (paragraph 44); 2) the personal activity of the working person fulfilling the contracts is strictly linked to the person (paragraph 46); 3) it is irrelevant whether this personal, real and effective work activity, which allows the working person to make a living, is classified as employment or self-employment; 4) and in fact, the protection granted is independent of the legal form of work (paragraph 43) to the extent that 5) it responds to the need to guarantee the full participation of citizens in economic, cultural and social life, and in the personal realisation (paragraphs 42 and 54). The concept of personal work therefore emerges in all its normative value as a general category to refer to in the interpretation and application of anti-discrimination protection, in order to make the principle of equal treatment effective in the Member States (paragraph 41).
If this is the case, according to the analysis of the scope of application of anti-discrimination regulations to all forms of work (with the exception of entrepreneurial work), what emerges is essentially the moral-social value of personal work linked to the full participation of citizens in the economic, cultural and social life and personal fulfillment. The scope of the Directive, according to the Court, only partially accepting the AG's observations, must be understood ‘in a broad sense’ as including self-employment (paragraphs 36 and 47), without however also including entrepreneurial work. In fact, the Court reiterates the need to distinguish between self-employed activities, which fall within the scope of the Directive, and those consisting of a mere supply of goods and services to one or more recipients, which do not fall within its scope (paragraph 44).
If the moral-social value of personal work – regardless of its legal classification – comes into play in the protection of a fundamental right, we may ask ourselves, from a more general theoretical profile, whether that same moral-social value may constitute the justification for a broader normative inference. This normative inference aims at using the notion of personal work as a new scientific paradigm not only for anti-discrimination law in the field of employment relationships, but for labour law as a whole, in order to reframe its regulatory rationality in a much broader perspective than that which has so far found justification in the notion of dependence and subordination. The question of whether or not personal work of an entrepreneurial nature should also be included in this broad category of personal work is a matter that should be discussed briefly.
As discussed (above, par. 1), there are some who believe it should not, distinguishing between self-employment and the exercise of a business activity on one's own behalf. 38 However, a renowned scholar – who focuses on the expansion of the scope of labour law beyond subordination precisely on the concept of the ‘personal work’ nexus – including, among other personal work actors, those relating to the personal work relations of individual entrepreneurial workers. 39
Small businesses also need social protection. From this perspective, the ‘small entrepreneur’ is increasingly characterised as a worker, holder of non-economic interests and existential and human needs, such as realising his/her own personality and having a stable and sufficient income. 40 For this reason, we may consider this actor from the perspective of labour law. 41
The (selective and not universalistic) expansion of social and labour protections to include small entrepreneurs can therefore no longer be considered a taboo for labour law.
Collective bargaining
The proposal to reconstruct the meaning and orientation of labour law around the concept of personal work (including economically dependent self-employment (see below)) also concerns collective bargaining, although it had a marginal role in placing personal work under the spotlight. Only recently have the social parties showed greater awareness of the world of atypical work in general, and of economically dependent self-employed workers, in particular. The European framework confirms the weakness of trade unions in this matter. The reason for this lies not only the legal constraints deriving from the conflict with competition law, but also the cultural limits of traditional unions in delivering effective representation in the self-employed work sectors.
Today, it should be clear to all that the full and explicit recognition of the right of collective bargaining for self-employed workers is entirely consistent with international labour law, which refers to ‘workers’ without limiting the scope of relevant Conventions in strict terms (Nos. C-87, C-98 and C-154). 42 This recognition is part of a broader regulatory strategy, aimed at also providing self-employed workers with new capabilities and possibilities for collective action, to be achieved in different ways depending on national contexts and specificities, ranging from the creation of informal networks between freelancers via social media and digital platforms to the creation of new union structures for self-employed workers. 43
European law, with the adoption of Guidelines on collective agreements by solo self-employed on 29 September 2022, 44 started addressing the age-old problem of the conflict between the right to collective bargaining of self-employed workers (assimilated to companies, pursuant to Art. 101 TFEU) and European competition law. In this way, the Guidelines de facto created an extension of the Albany exception to personal self-employment, which is classified as solo self-employment. Solo self-employed workers can be defined as independent workers who carry out their business without the use of employees.
But let us take a step back. The Court of Justice, in a controversial decision, clarified that the Albany exception should also refer to so-called ‘false self-employed workers’. 45 Subsequently, scholars put forward a series of hypotheses regarding the Court's desire to expand of the notion of employment, such as to allow the exercise of the right to collective bargaining not only to actual employees, but also to workers in grey areas of uncertain classification, such as ‘hetero-organised’ workers. It was actually a big misunderstanding, or perhaps an actual doctrinal blunder.
The attempts to argue that the FNV Kunsten ruling would allow the antitrust exception to be extended outside the classic area of subordination, 46 valorising the element of hetero-organisation (and not that of hetero-direction) as a decisive criterion for classification, 47 do not reflect the dictum or the intention of the Court. Indeed, the Luxembourg judges never wanted to part from the traditional EU notion of employment, namely, that ‘one person performs services for and under the direction of another person in return for which he receives remuneration’, 48 including when that person ‘acts under the direction of his employer as regards, in particular, his freedom to choose the time, place and content of his work’. 49 Consequently, a person can be classified as an employee ‘if his independence is merely notional, thereby disguising an employment relationship’. 50
This position was confirmed in the first ruling of the Court of Justice in a case concerning digital platform work. The Luxembourg judges, far from adopting a notion of ‘organisational dependence’ in order to qualify the work as employment, claimed that elements such as the personality of the service and the subjection of the provider to hetero-direction – absent in the present case, because the worker was free to accept or reject tasks and to decide when to carry them out – are decisive for the purposes of recognising an individual as a ‘worker’. 51
Basically, in FNV, the Court did nothing but reaffirm an absolutely undisputed principle in all legal systems regarding the classification of the employment relationship, that is the ‘primacy of facts’, entrusting to the referring Court the assessment of whether, ‘apart from the legal nature of their works or service contract’ such workers are not in a relationship of subordination, defined according to the criteria specified above (paragraphs 33 to 36 of the ruling). 52 The unequivocal position of the Court was confirmed in the Opinion expressed by the Advocate General Wahl, who described false self-employed workers in the following way: ‘employees who are disguised as self-employed in order to avoid the application of some specific legislation (for example, labour or fiscal regulation) which is considered unfavourable by the employer’. It is clear that this definition does not aim to positively introduce a new category of workers (the ‘false self-employed’), 53 or to broaden the scope of application of the Albany exception beyond subordination. Its aim, rather, is to investigate the abuses of the self-employment category (that are common in many European systems) 54 on the part of employers who use employees disguised as self-employed workers, 55 and to indicate to the referring courts how to uncover bogus self-employment. 56
The Court of Justice is firmly against collective bargaining related to the regulatory treatment of self-employed workers. According to the Court, there is no rule which, in the same way as European Union law (Articles 153 and 155 TFEU, as well as Articles 1 and 4 of the agreement on social policy), encourages ‘self-employed service providers to open a dialogue with the employers to which they provide services under a work or service contract and, therefore, to conclude collective agreements with a view to improving their terms of employment and working conditions’. 57 Moreover, the trade union association representing self-employed workers does not act as a ‘social partner’, but as ‘an association of undertakings’. 58
The value of the Guidelines adopted by the Commission emerges in all its scope, within this critical context. They outline a broader scope of the Albany exception by taking ‘self-employed personal relationships’ as a discrimen and by introducing some qualifying elements in a selective sense (such as that of economic dependence).
The Commission's Guidelines therefore represent a significant step forward. However, they provide for a soft instrument that does not create new rights or new regulatory categories and leaves completely unprejudiced the legislative and jurisprudential dynamics at national and supranational level. But at the end of the day, this soft instrument states that all collective agreements negotiated or concluded between certain categories of ‘solo self-employed’ and their counterparts – having as their object the conditions of such categories of self-employed workers – are excluded from the scope of the Art. 101 TFEU. For the purposes of the Guidelines, the ‘solo self-employed’ are workers who do not have an employment contract (or are not in an employment relationship) who rely on their own personal labour to carry out their activity (although they can use tools and means to perform the service). In particular, they are self-employed workers who are in a ‘comparable condition’ to that of employees in terms of negotiating power, for whom collective bargaining be an important tool for improving working conditions. This imbalance in negotiating power is presumed to exist in two specific cases, in which the solo self-employed have contractual relationships with economically strong counterparties, such as to legitimise the corrective intervention of collective bargaining.
The first concerns solo self-employed persons who negotiate or conclude collective agreements with one or more counterparties representing an entire sector or industry.
The second concerns solo self-employed persons who negotiate or conclude collective agreements with a counterparty whose total annual turnover exceeds EUR 2 million or who employs ten or more people, or with multiple counterparties which together reach or exceed one of these thresholds.
From a strictly legal point of view, it is essential to understand exactly which types of self-employed workers (solo self-employed) are comparable to employees, and therefore fall within the scope of the Guidelines. Instead of providing a general definition of solo self-employment, or simply subsuming personal workers into this category (as in the case of the anti-discrimination regulation, which we discussed above), the Commission indicates three different types of personal workers, linked, by contractual weakness, to one or more counterparties. In identifying the three types of solo self-employed genus, heterogeneous attribution techniques are used. The first is based on the concept of economic dependence; the second on the material-organisational data concerning work (providing a service side by side with employees); the third is centered on the production sector of digital platforms, where we can find solo self-employment.
Let us take a closer look at these three typologies.
(a) The category of economically dependent self-employed workers, well known to the Commission, 59 refers to self-employed workers who are economically dependent on the counterparty in terms of income: 60 in this case at least 50% of the total income from work per capita per year, over a period of one or two years. It is therefore a long-term service aimed at satisfying a non-occasional interest of the client. According to the Commission's Guidelines, these workers, by carrying out their work for an exclusive or prevalent counterpart, form an integral part of the client's production activity. Furthermore, economically dependent workers can receive instructions (‘are more likely to receive instructions on how their work should be carried out’). Here, the Commission seems to cross-reference economic dependence data in the strict sense with a different element, namely, the subjection of the worker to instruction, as provided for in many legal systems, by mandate, agency and dispatch contracts. 61
Unfortunately, the Commission's Guidelines do not take into account the fact that the asymmetric dimension in power relations may take forms other than the power to give instructions, with the same or greater constraining power, for example, the power to impose a commercial or financial policy, as happens in franchising; or the power to impose clauses (on the part of the monopolist supplier) which, in the commercial distribution sector, set sales prices and commercial premises, hence the ‘imperfect professional subordination’ of the self-employed worker. 62 It would therefore have been appropriate to also take into account these forms of power/control of the client, which may not coincide with the criteria of ‘economic dependence’.
The Commission is well aware that it is precisely economic dependence that is increasingly characterising weak self-employment, which develops within supply chains and on which it depends in terms of market and clients. The reason for this is not because dependence is a legal element inherent to the nature of the contract – actually, the legal scheme of self-employment formally excludes dependence. Dependence emerges de facto from the will and interest of the strong party and/or from the market conditions, which impose on the self-employed worker a single-client regime. This economic dependence constitutes one of the main justifications for the transmigration of social protections from the field of employment towards self-employment in many EU countries, and also in other extra-EU legal systems. 63
Consequently, according to the Guidelines, collective agreements concluded by economically dependent workers now lie outside the scope of Art. 101 TFEU.
(b) The second category is represented by “solo self-employed” workers who work side by side with the client's employees, even if these workers are not falsely self-employed that are to be reclassified as employees. From this perspective, the Guidelines reflect the social policies of some Member States, where the collective agreements of certain categories are applied to both employed and self-employed workers (such as the Dutch collective agreements in the theatre and dance sector, or those in the journalism sector in Slovenia).
We should now observe that the lack of a precise legal category of reference, characterised by technical-legal elements, which the Albany exception can be ascribed to, is a major issue. In fact, stating that the collective agreements entered into by workers who work side by side with the client's company employees do not fall within the scope of the Art. 101 TFEU means we are relying on a very vague factual evaluation (the fact of working side by side) in order to set off legal effects. Such legal effects (of protection) do not therefore arise from a legal situation (the employment relationship as legally classified) but from a fact, with the aggravating circumstance, according to the Guidelines, being that these solo self-employed persons provide the service ‘under the direction of their counterparty’. We may now ask ourselves whether these workers are actually employees disguised as self-employed workers. In fact, according to the Guidelines, these self-employed workers do not bear the commercial risks associated with the client's activity and do not enjoy sufficient independence in the performance of their economic activity. The example provided in the Guidelines is that of solo self-employed musicians who find themselves in a situation comparable to that of employed musicians, in terms of subordination and carrying out similar tasks. The parallel is evident with the FNV Kunsten case that was decided by the Court of Justice, in which it ruled on a case of false self-employment and not just solo self-employment.
In conclusion, we can observe how the Guidelines do not closely delve into the issue of the classification of these side-by-side workers (these issues are to be dealt with by Member States), but pragmatically intend to cover this grey area of uncertain classification (to the limits of bogus self-employment), extending the Albany exception to cover it.
(c) The third category refers to solo self-employed working through digital platforms. For the purposes of the Guidelines, these solo self-employed workers who operate via the platform are such to the extent that their activity is: I) carried out remotely through electronic means; II) at the request of a recipient of the service; III) with its own work organisation, regardless of whether the activity is carried out online or in a specific physical location.
Eventually, in a sort of closing provision, the Guidelines observe that, in certain cases, solo self-employed persons are not in a situation comparable to that of employees. However, they may have difficulties in determining their own conditions of work due to their weak position vis-à-vis their counterparty. Although we are not sure whether the collective agreements entered into by these workers fall outside the scope of application of the Art. 101 TFEU, it is generally acknowledged that these self-employed persons may encounter the same difficulties as the workers referred to above in (a), (b) and (c). Therefore, the Commission will not intervene against the categories of Collective agreements concluded by solo self-employed persons with counterparty/-ies that have a certain level of economic strength. These are, as we have seen with reference to the presumption of imbalance in negotiating power, collective agreements entered into by self-employed persons with one or more counterparties representing an entire sector or industry, or who negotiate or conclude collective agreements with a counterparty whose total annual turnover exceeds EUR 2 million or whose staff headcount is ten or more people, or with multiple counterparties who reach or exceed such levels.
In relation to these contractually weak self-employed workers (while not necessarily economically dependent), the Commission considers collective agreements as instruments essentially aimed – as in classic employment – at correcting an evident imbalance of bargaining power between the parties, to the point that the Commission expressly declares that ‘it will not intervene against these collective agreements’.
Therefore, personal self-employed work is recognised as having a particular social nature also from this collective point of view. Solo self-employed persons express a need for social protection that EU law finally intends to recognise and protect, as persons ‘comparable’ to employees.
Platform work
With reference to platform work, complex political negotiations are underway with a view to adopting a Directive of the European Parliament and the Council that will improve levels of protection for ‘people who carry out platform work’. 64 The Directive suggests a double movement: on the one hand, the attempt to expand the sphere of social rights through the technique of (rebuttable) legal presumption; and on the other, the extension of guarantees in the field of algorithmic management to include self-employed workers and, in general, all those who operate via a digital platform.
As per the legal presumption, the Directive contains a rather harmless (not to say superfluous) norm regarding the ‘primacy of facts’ over the formal classification of the relationship (Art. 3) for the purposes of the correct determination of the employed worker's status on the basis of the legislation of the Member States. 65 Subsequently, taking into account the Guidelines of the Court of Justice, Art. 4 the Directive defines the criteria used in order to ascertain the (simple) legal presumption.
To this end, the following seven criteria are identified: (a) the platform determines the maximum remuneration floor; (b) the platform imposes rules with regard to appearance, conduct towards the service recipient or the performance of work; (c) the platform supervises work performance by electronic means; d) the platform restricts the freedom of the worker, including through sanctions, to organise his or her work, limiting the freedom to choose working hours or periods of absence; (da) the platform restricts the freedom, including through sanctions, to organise work by limiting the freedom to accept or refuse tasks; (db) the platform restricts the freedom, including through sanctions, to organise work by limiting the freedom to employ subcontractors or substitutes; and (e) the platform restricts the worker's ability to build a client base or to provide services to third parties.
A preliminary consideration concerns the strategic choice to focus on the prima facie classification of platform workers as employees, together with the strong reference to the correctness and transparency of the classification processes.
However, it would be wrong to consider subordination as the North Star of protection in the world of work. The position of the supranational legislator appears to be more articulated, not only concerning the second movement (universalistic vision of protection) but also with reference to a systematic evaluation of the European regulation of labour matters. In fact, the Recital 7 of the Directive states that platform work is evolving rapidly, resulting in new business models and forms of work that escape existing paradigms. These innovations are exemplified by the Guidelines adopted by the Commission on collective bargaining for solo self-employed persons (see above) and, for these reasons, it is important to accompany this process with adequate protective measures for people who carry out work via platform, without regard to the nature of the contractual relationships, avoiding discrimination and promoting new opportunities. On this basic point, the Directive therefore expresses a universalistic logic of protection: in order to extend social protections, it is not always necessary to ad libitum expand the concept of subordination. It is simply a matter of acknowledging that employment protection must cover every form of personal work, following general principles and values, regardless of any classification in typological terms.
Another consideration concerns the mechanism of the rebuttable legal presumption, which triggers a sort of regulatory short circuit between the presumption itself and the evidence to the contrary (rebuttal of the presumption) that the platform can provide on the basis of criteria established by the national labour law systems. The most recent version of the proposed Directive identifies seven presumptive criteria (originally there were five). Some are intrinsic to the performance, others are extrinsic (such as the one indicated under (e)), relating to the restrictions on the worker’s ability to build a client base or perform work for third parties. The fulfilling of at least three out of the seven criteria prima facie means the relationship will be presumed to be one of subordination. However, since it is a rebuttable presumption, the platform will be able to refute this claim on the basis of the classification criteria of employment relationships specific to each national legal system, rebutting the presumption. The norm provides, in fact, for a regulatory scheme in which the refutation of the status of subordination is implemented following the definitional logic of (legal or jurisprudential, depending on the case) subordination provided by each Member State. 66 In other words, the seven new Euro-unit criteria for legal presumption, which constitute an unprecedented supranational regulatory structure of prima facie classification of the employment contract/relationship as one of subordination, give way in the face of the (different) regulatory criteria (indicating non-subordination) under national law. Consequently – as an example – given the presence of three criteria that can be easily proven by the worker (such as supervision, determination of remuneration and restricting the possibility to build a client base or to perform work for any third party), the platform will be able to rebut the presumption by providing indices such as the non-existence of control or direction in the strict sense (which in many national systems is the main criterion of subordination), or by enhancing the freedom of the worker to refuse tasks (consider that according to the same Directive (Recital 25), certain elements, such as the freedom to choose working hours or periods of absence, refusing assignments, using subcontractors or substitutes or working for third parties, must be considered as indicators of genuine self-employment). 67
As a consequence, if only 1/5 of the current platform workers may be reclassified as employees thanks to the presumption, what happens to the other 4/5? It is clear that the measure adopted is not sufficient to guarantee social rights for the entire community of platform workers. It is no coincidence that the ILO Report on World Employment and Social Outlook. The role of digital labour platforms in transforming the world of work (2021), while reiterating the importance of correctly classifying the relationship, opts for a decidedly universalistic vision, consistent with the current evolutionary scenario and the partial obsolescence of the normative criteria of subordination. From this perspective, it is not a matter of presumptively determining whether a relationship is one of employment or self-employment, but, by reversing the traditional logic, of identifying a broad series of social and labour rights, relating to ‘decent work via platforms’, that should be applied regardless of any classification.
Now it is time to address the second movement of the proposal for a Directive, within a logic of protection universalism. The second movement draws inspiration from some shareable assumptions, contained in Recitals 23 and 29, according to which ensuring a correct determination of the employment status in terms of non-subordination must not prevent the improvement of conditions of genuine self-employed workers. Furthermore, in the context of platform work, workers are often subject to decisions made via (or with the support of) automated systems. Platforms should be subject to transparency obligations in relation to such automated decision-making (Recital 32) and new rules on algorithmic management in addition to those provided for by Regulation 2016/679 (Recital 37). Consequently, a series of rules regarding the functioning of the algorithm must not be limited to employment, but must also be applied to ‘true’ self-employed workers. These rights are contemplated in Articles 6, 7 and 8 of the Directive on the transparency of decision-making processes, on the limitation of the collection of personal data and on the human monitoring and review of significant decisions.
In the field of algorithmic management, the overcoming of the historical employment/self-employment dichotomy is thus fully and selectively implemented, while the focus of regulation shifts from the employee to the worker as a person. In particular, Art. 2(3) of the Directive defines a ‘person performing platform work’ as anyone who carries out work via a platform, regardless of the nature and contractual relationship or its designation by the parties involved, so that all the rules on algorithmic management (Articles 6, 7, paragraphs 1, 3, 8) refer to this category of workers.
It is clear that the universalistic approach to protection is one of the real novelties of the proposal for a Directive, which is not limited to the (rebuttable) legal presumption, but intends to protect all workers, or, better, all working persons, from the arbitrariness of algorithmic management. From this perspective it is specified that persons performing platform work should be provided with a number of minimum rights, the correct determination of their contractual status as well as fair and just working conditions, promoting transparency, fairness, accountability and non-discrimination, and preventing health and safety risks in algorithmic management, improving transparency in platform work, including in cross-border situations. This should be done with a view to improving legal certainty, creating a level playing field between digital labour platforms and offline providers of services and supporting the sustainable growth of digital labour platforms in the Union.
Ultimately, by establishing that the provisions on algorithmic management relating to the processing of personal data should also apply to truly self-employed workers and other persons who carry out work via digital platforms in the Union and who do not have an employment relationship, labour protection at a supranational level takes an unprecedented step forward. This provision – which also identifies genuine self-employment as a milieu for controlling algorithmic power, limiting it and making it transparent – proves how advanced the path, in extending the scope of application of employment protections beyond subordination regardless of the type of contract, has become.
Conclusions
The revision of the uncertain boundaries of labour law, built around an increasingly less acceptable and justifiable oppositional dichotomy, 68 has produced a universalistic perspective on work and its protections. An example of the universalistic approach is represented by the doctrine which, criticising the binary division (judged as ‘false’) based on the imbalance in negotiating power between the parties, now considers the old distinction between employment and self-employment as completely overcome. 69 From this perspective, going beyond subordination means imagining a new family of contracts characterised by a personal bond (personality of work), a broader concept than that of subordination (contract of employment), such as to justify the application of protections to self-employed workers, including freedom of organisation, trade union association, the right to strike and the right to social security and protection. From a different methodological perspective, which looks at the tradition of Civil law from a European and comparative perspective, a study carried out for the European Commission aims at addressing the regulatory crisis of labour law by valorising the notion of economically dependent self-employment 70 by pairing employment and (part of) self-employment and extending protections, regardless of the existence of a subordination element.
A selective extension of protections beyond subordination is also suggested in the OECD's Employment Outlook (2019). It considers the imbalance of bargaining power between the parties and the existence of monopsonist labour markets as the main culprits behind the vulnerable situation of self-employed workers, and advocates for dual action to be taken. On the one hand, it calls for the extension of a series of protections ‘beyond standard employees’ (in terms of fair pay, the regulating of working time, occupational safety and health, anti-discrimination, employment protection). On the other hand, it advocates for improving the conditions of self-employed workers through social dialogue and collective bargaining, training programmes and social protection schemes, 71 and also proposes that action is taken through exceptions to the ban on collective bargaining for groups of genuine self-employed workers in situations of strong power imbalance vis-à-vis their counterparties. 72
Beyond the different techniques and methodologies, these proposals are intended to give new life to the axiological rationality of labour law. By overcoming the historical category of subordination, and by rethinking its boundaries, labour law should include in its scope a large share of sectors that to date have been excluded on the basis of the above-mentioned binary logic.
The most recent trends in European labour law prove that the person and the personal character of work are becoming central to protections. In this article, I have analysed the different ways the concept of personal work has recently been used in three different contexts and with different nuances: in matters of prohibition of discrimination, in the context of collective bargaining and in that of platform work. I have pictured a multifaceted scenario that is converging towards a universalisation of labour protections in favour of the working person, regardless of the qualification of the relationship (bans on discrimination, platform work), or in favour of the personal self-employed worker (collective bargaining).
If this trend is confirmed, the future of labour law may take a direction that was originally precluded precisely by the creation of the notion of subordination. I am referring to Philipp Lotmar, 73 who, in 1902, reconstructed the autonomous category of the ‘employment contract’ as a form of development of modern labour law based on the principle of the personality of work, attributing the same dignity to all contractual forms that include the personal performance of work.
Awareness of the need to expand protections for personal work, regardless of legal categories, by reason of the needs of social justice (rebalancing situations of social vulnerability and democratic deficit in the context of employment relationships) is critical today, especially considering that the proposal for a European Council Recommendation claims that ‘evidence shows that non-standard workers and self-employed workers have insufficient access to the sectors of social protection that are most linked to participation in the labour market’. 74
In my opinion, the perspective of personal work must advance due to its notional value and its anthropological significance, which has its roots in the Kantian conception of man as a noumenon (homo noumenon) with a priceless value. 75 In man's work there is his personal dimension, which cannot be separated from the activity that is performed, there is the potential for autonomy and self-realisation of the person who, through his work, frees himself from the condition of slavery and implements the need for recognition which is the basis of his freedom.
Personal work does not need presumptions of subordination, because in many cases it is now established that the true rationality for the intervention of labour law is not the worker's condition of subordination but his social need, which is immanent in the worker included in a system of capitalist production, regardless of its legal classification as subordinate or autonomous. Personal work does not need categories to be operational, it does not follow the ‘case-effects’ logic to the extent that it overcomes and encompasses all the categories of work in need of social protection. The categories continue to exist but are often overcome because the tendency of labour law is naturally expansive, and it looks at work as a complex and diversified phenomenon, but at the same time – and fundamentally – as a unitary concept, and as a human experience that unites people in a shared existential condition.
That said, not all labour law provisions can be applied to non-subordinate work. For example, the rules that presuppose the existence of power in respect of management and control are not automatically applicable when this type of prerogative is not present in the context of self-employment. There are certainly areas of total overlap, in which it is really possible to do away with the dichotomy and look at personal work as the sole and sufficient justification for the universal application of protections: just think of fundamental social rights in matters such as health and safety in the workplace; all civil rights, such as freedom of expression of thought and speech; the prohibition of discrimination; the protection of privacy; fundamental collective rights, such as freedom of association and collective bargaining; but also new rights that until recently were unthinkable for self-employed workers, such as universal income protection that protects workers during periods of unemployment or a lack of continuity of work. A broader common basis of labour rights for all workers, including self-employed workers, is advocated for by the World Commission on the Future of Work. In a logic of reflexive labour law, collective bargaining, if appropriately developed, could become the driving force behind the extension of the scope of application of many other rights into the more collectively organised sectors of self-employment. Case studies demonstrate the fertility of this perspective, which has led to notable advances in the rights of independent workers thanks to collective bargaining, for example, the protection of freelancers in relation to dismissals, and to important associative experiences, as in the SMART case of freelancing artist around Europe. 76
Still, other rights can be recognised and attributed in a more selective way, adopting criteria that some national labour law systems have already foreseen, such as economic dependence. However, these selective criteria must be used correctly. They must not be used to take falsely self-employed workers outside the scope of the full protections of labour law, but, on the contrary, they must be used to extend selectively identified protections to categories of genuinely self-employed workers who have social needs that are not met by current legislation, therefore filling the gaps present in labour law systems with regard to non-employed workers.
Antonio Aloisi rightly wrote, ‘the race towards the universal coverage of social and labour rights, which has really only just begun, promises to be a marathon rather than a sprint’. It should be noted that the world record for the marathon is only 2 hours and 35 seconds….
Footnotes
Declaration of conflicting interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author received no financial support for the research, authorship, and/or publication of this article.
