Erhvervsudvalget 2021-22
ERU Alm.del Bilag 212
Offentligt
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01 March 2022
Response by the Danish Government to the European Commission’s
draft for guidelines on the application of EU competition law to collec-
tive agreements regarding the working conditions of solo self-em-
ployed persons
The Danish Government appreciates the opportunity to comment on the
Commission’s draft for guidelines on the application of EU competition
law to collective agreements regarding the working conditions of solo self-
employed persons.
The right to collective bargaining is a fundamental labour right and a cor-
nerstone of the Danish labour market model, where the social partners reg-
ulate remuneration and working conditions primarily through collective
agreements. In this context, it is important that the competition rules does
not stand in the way of ensuring fair working conditions for solo self-em-
ployed persons in a weak position. This is highly important in the context
of platform economy, which affects the way people work including pay and
working conditions.
Therefore, the Danish Government welcomes the
Commission’s efforts to
provide legal certainty regarding the application of EU competition law to
solo self-employed
persons’ collective agreements.
The guidelines are
highly needed and will allow Member States to identify solutions according
to their national labour market models.
It is important to underline that it is crucial that the guidelines do not affect
the national rules on collective agreements, including the right to negotiate,
conclude and enforce collective agreements for workers or the scope/inter-
pretation of those agreements, which exclusively is considered national
competence.
Additionally, the Danish Government acknowledges that competition rules
constitute a cornerstone of the Single Market ensuring that undertakings
compete by delivering innovative products and services of high quality at
competitive prices. Therefore, the exemptions to the competition rules must
not lead to harmful cartel activities to the detriment of competition and
consumers.
Below, please find our specific comments, which is suggestions on how the
guidelines can be clearer in terms of its scope and application:
•
Legal status of the guidelines
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Since the Commission’s guidelines will not be binding for national
competition authorities/courts or the European Court of Justice. The
Danish Government encourages the Commission to make this point
clear in order to provide as much clarity and guidance as possible.
•
Correlation to the Platform Directive
The guidelines and the Commission’s proposal for a Directive
on im-
proving working conditions in platform work are closely connected as
a set of measures with the aim of improving the working conditions in
the platform economy and to support the sustainable growth of digital
labour platforms in the EU. The Danish Government encourages the
Commission to elaborate on the correlation between the guidelines and
the Directive, e.g. on definitions and scope.
Competence of the Member States and the national labour market
models:
The Danish Government appreciate that the role and compe-
tence of the Member States are maintained. However, in order to avoid
any misunderstandings, we encourage the Commission to clarify that
the guidelines do not affect the national rules on collective agreements,
including the right to negotiate, conclude and enforce collective agree-
ments for workers or the scope/interpretation of those agreements,
which exclusively is considered national competence. Further, it
should be clear in para. 36 that the Commission will not intervene
against collective agreements involving categories of solo self-em-
ployed persons concluded pursuant to national and EU legislation.
The definition of “working conditions”
(para. 16):
The Danish
Government notes that the list of working conditions mentioned is not
exhaustive. We support such an open-ended definition but suggest that
the Commission includes a description of the criteria for assessing what
is seen as “working conditions” which the solo self-employed
persons
may negotiate collectively.
The
definition of “economically dependent solo self-employed
per-
sons”
(para. 25):
The Danish Government encourages the Commis-
sion to consider whether the 50 % criterion covers solo self-employed
which actually is in a weak position. It is important that the exception
does not apply to solo self-employed who are not considered to be in a
weak position such as lawyers and accountants. The Danish Govern-
ment encourages the Commission to consider to assess a situation of
economic dependence based on criteria ensuring this.
The definition of “digital labour platforms”
(para. 30):
In the pur-
pose of legal certainty, it should be clearer demarcation of the term
“digital labour platforms”.
The Danish Government encourages the
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Commission to elaborate on what constitutes
“organisation of work”,
including when it is “a necessary and essential component”.
This could
be done by giving examples and should be in accordance with the def-
initions of the Directive and other EU legal acts on this subject.
•
The definition of “counterparties of a certain economic strength”
(para. 35):
In order to ensure that consumers continue to benefits from
innovative products and competitive prices, the guidelines should jus-
tify the threshold and its implications. This will make it clear why solo
self-employed persons who are not in a situation comparable to that of
workers would need to be able to negotiate collectively. We
acknowledge the effort to protect also a possible weak bargaining po-
sition on the counterparty side. However, from a competition perspec-
tive example 6 of the guidelines, implies a paradox where coordination
on the counterparty side (and between possibly competing companies)
will not merit intervention by the Commission whereas the same ex-
ample without coordination could.