The European notion Costantino Cordella

of the worker Ricercatore presso il Dipartimento di Giurisprudenza

dell’Università di Napoli Federico II

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Introduzione
Lecture contents

• The notion of the worker • The “conditional referral” to national law

- in the area of free movement - on undertaking transfers and flexible jobs
- and its extension into anti-discrimination,
• The “false self-employed" worker in competition
health, and safety subjects
matters
- the case of riders

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 The notion of the worker
- in matters of free movement
What is the problem? The wide discretion of state legislatures in defining the scope of
application of social directives
Why it is important? Because in the European States the meaning of employee is not
based on a general, unitary definition, but is affected by a differentiated approach (see
CJEU, Martinez Sala judgment, 1998)
What was the outcome? In the area of free movement of workers, in order to prevent the
States from manipulating the concept of migrant worker for protectionist reasons, the
Court of Justice developed 3 criteria for verifying the notion of the worker: the
performance of the work activity, the exercise of powers, the payment of wages (Lawrie
Blum case,1986)

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 The notion of the worker
- in matters of free movement
What are the consequences? Thanks to the principle of the primacy of European law, the
qualification of employment given by Member States becomes irrelevant
Of the 3 criteria developed by the case law of the Court of Justice, the one least used
initially was that of the exercise of powers, since the proposed cases required
distinguishing between work and non-work, but not also in the dichotomy of employment -
self-employment
- in particular, there was a need to distinguish between active and inactive workers
(especially to recognize State welfare protections), resulting in the need to use the
following two criteria: a) of the actual performance of the activity; b) of the payment of a
salary.

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 The notion of the worker
- and its extension in the anti-discrimination and health and safety fields
The Lawrie Blum formula has been used in the field of equal treatment to affirm the
relevant fundamental right (ex Art. 157 TfUE) and to prevent States from circumventing
its protection by manipulating the notion of employment (Nolte, 1995; Allonby, 2004).
In particular, in Allonby (para. 70) it was said that when it is established that a
person is a worker "the nature of the legal nexus linking him to the other party to the
employment relationship is irrelevant to the application" of anti-discrimination protection.
Similarly (but going further), in the field of health and safety, Directive 92/85 has been
interpreted to deem the notion of worker to include false self-employed persons,
considering as such those who were indeed qualified as self-employed (this was a member
of the board of directors of a company) but in practice were subject to powers of direction,
control and revocation of duties (Danosa, 2010).
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 The "conditional" referral to national law
- on Transfer of Undertakings and Flexible jobs
Interpreting the Transfer of Undertakings Directive (in Danmols, 1985), the Court stated
that the concept of the worker "must be understood to include anyone in the Member State
concerned who is protected as a worker by national labor law”.
- Thus generates the risk that "identical situations are treated differently merely
because of the qualification of the employment relationship under national law"
In deciding on the flexible work directives, an "intermediate" reading has been proposed
based on "conditional" deferral, i.e., of the deferral of the power to define the notion of
worker to national law, provided that this does not undermine the "useful effect" of the
European rules
- Exclusion from the applicability of the Part Time Directive 97/81 was allowed
only for workers in conditions "substantially different from those covered by it" (O'Brien,
2012)
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 The “false self-employed" worker in competition matters
The issue of establishing employment as an alternative to self-employment has been widely
echoed in competition matters, where, under Article 101 TfUe ,the genuine self-employed person
is equated with an enterprise and is therefore excluded from the protections of collective
agreements.
The FNV (2015) ruling expressly identified the "category" of "false self-employed" workers,
which, as such, is not equated for the purposes of competition law with businesses, but with
workers.
- Thus, the question arose as to whether in this category the Court intends to contemplate
only the employment mistakenly framed as self-employed or also the broader situation in which
the service provider loses the status of an independent economic operator, since "he does not
independently determine his own behavior in the market, but depends entirely on his principal"?
Recently, the European Commission's guidelines confirmed the exclusion of self-employed
workers from the category of enterprises, all times when their work is "assimilated to
employment" (self-employed workers: a) in a situation of economic dependence b) working "side
by side" with subordinates; c) working through digital platforms.

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 The "falsely self-employed" worker in competition matters
- the case of riders

Regardless of the different classification proposed by individual national legal

systems, the condition of riders is considered by the Commission to be
"comparable" to that of employees, provided that: - the work is performed at least
partly at a distance; - it is performed at the request of a recipient of the service; - it
involves the organization of the work of the platform
to date, the Court of Justice has ruled with respect to the protective status of
riders only in the area of working hours (Yodel, 2020), denying the qualification of
subordinate in light of: - the absence of obligations of exclusivity; - the ability to
use substitutes; - the ability to accept assignments.

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 Thank you for your attention
Costantino Cordella
costantino.cordella@unina.it

https://www.docenti.unina.it/#!/professor/434f5354414e54494e4f434f5244
454c4c4143524443544e38354d3039463833394e/riferimenti
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