Tihamér TÓTH: Workers and Competition Rules - with a focus on the challenges of the gig-economy. Nr. 2021/16.
The unprecedented space of technological development and digitalization is reshaping many industries and is creating new markets. Platform work creates new opportunities for individuals and businesses, but also presents regulatory challenges. Some of them emerge as gatekeepers of the digital economy. Questions are asked whether antitrust is apt to the task to deal with the complexity and space of these changes. The paper explores the question whether the traditional antitrust concept of an undertaking can provide a meaningful basis to understand and evaluate the developments in digital platform markets. Selling one’s labour to another entity on a lasting basis and for remuneration is a sort of economic activity, which, like any other economic activity, could fall, at least in theory, under the scrutiny of competition rules. The same applies to platform related work in the digital economy. Yet, once a person becomes an employee, agreements with other employees or their organizations on the one hand, and agreements between employer and employee, on the other, are, as a rule, immune from competition rules. The same would not apply to platform workers who would be considered as undertakings. This could make various co-ordinations connected to a platform anti-competitive and even unlawful.
The Commission’s draft guidelines, even if they do not expressly legitimise collective agreements among platform workers as such, are a welcome development to clarify that the EU competition authority when will abstain from investigating such agreements. The paper does not advocate that agreements between either employees or self-employed gig-workers seeking to secure a fair income should be condemned at the outset. What is important that that we should have the same regulatory approach, regardless whether labour law (miss)classifies these individuals as employees or non-employees. From this point of you, the CJEU’s ruling on the Dutch musicians sets a good precedent: self-employed musicians should be regulated the same way as employed musicians if the characteristics of their work is almost identical. The same regulation, the level playing field can be either an exemption from competition rules or a subordination to those rules. Both outcomes are acceptable from a fairness point of view. The unfavourable result would be treating these two categories differently just because of the different title of their contracts.