In a judgment dated 4 December 2014, the Court of Justice held that a collective labour agreement (CLA) providing for minimum fees for self-employed service providers is acceptable and does not fall within the scope of Article 101(1) TFEU – prohibiting agreements/practices between undertakings aimed at adversely affecting competition on the EU market – but only to the extent that these providers are "false self-employed" workers.

In the Netherlands, a CLA concluded between an employees' association and an employers' association relating to musicians substituting for members of an orchestra provided for minimum fees, not only for employed substitutes, but also for self-employed substitutes (for whom more advantageous fees applied than those for employed substitutes).

The provision in Dutch competition law which corresponds to the wording of Article 101(1) of the TFEU provides that the prohibition on affecting competition on the Dutch market does not apply to CLAs. In order to be considered as a CLA, and, consequently, in order to avoid the application of competition law, an agreement must satisfy two cumulative conditions. These conditions relate to the nature of the agreement (a collective agreement resulting from dialogue between management and workers) and the purpose of the agreement (to contribute directly to the improvement of workers' employment and working conditions).

The Dutch Competition Authority published a document contesting the exclusion from the scope of competition law of the provision in the CLA applying specifically to self-employed substitutes. A trade union (which was a member of the employees' association that entered into the CLA) then initiated legal proceedings.

Two questions were referred to the Court of Justice for a preliminary ruling, and the Court examined whether the two required conditions were met. The Court's reasoning is particularly interesting insofar as it analyses the nature of the agreement. Since the disputed provision of the CLA was concluded by an employees' association, but in the name and on behalf of the self-employed service providers who are its members, the Court considers that it is not the result of a collective negotiation between employers and employees. Indeed, the employees' association did not act as a trade union association but as an association of undertakings. Consequently, the disputed CLA cannot automatically be excluded, by reason of its nature, from the scope of Article 101(1) TFEU.

Nevertheless, the Court observes that the agreement, entered into as a result of a dialogue between management and workers, cannot be contested if the service providers are in fact "false self-employed" workers, because they find themselves in a situation comparable to that of employees. The first condition for excluding the application of competition law will then have been complied with. The Court holds that the second condition is also fulfilled since the CLA directly contributes to the improvement of the employment and working conditions of the substitutes, who are categorised as "false self-employed".

As a consequence, the Court of Justice held that EU law, and competition law in particular, does not oppose a CLA providing for minimum fees for services providers who are "false self-employed" workers. It is up to the national courts to ascertain whether or not the workers are "false self-employed" workers…

What does this judgment mean for the Belgian context? Are employees' associations and employers' associations now also at liberty to conclude CLAs for "false self-employed" workers? The mere fact that this would not conflict with European competition law is one thing, but the question remains whether the Belgian CLAs Act allows for the conclusion of such CLAs.

At present, in some CLAs employers already undertake not to work with self-employed workers or subcontractors. But providing for remuneration and working conditions for self-employed workers in a CLA is a different matter. Belgian employment law makes a distinction between employees and self-employed workers. According to Belgian law, "false self-employed" workers are persons who in fact belong to the legal category of employees when their working conditions are analysed and hence erroneously consider themselves to be self-employed. For this category of workers, CLAs can indeed be concluded, since in fact they are simply employees. However, the CLAs Act also covers "assimilated" workers. These are persons who, otherwise than under an employment agreement, carry out their work under the authority of another person. It is worth analysing further whether this provision could provide for the possibility of concluding CLAs applicable to "false self-employed" workers who are not re-categorised. It should already be kept in mind that the Court of Justice has accepted that Dutch trade unions can also have self-employed workers among their members.