Case C-413/13, FNV Kunsten Informatie en Media – the autonomy of the social partners to regulate the self-employed? [judgment 2014, ECLI:EU:C:2014:2411]

Where a collective agreement contains a provision that sets down minimum tariffs for the engagement of the self-employed at rates equivalent to the minima paid to employees who are performing the same task, then is such a provision contrary to EU cartel law?

Facts
Although The Hague District Court handed down its first judgment in this matter back in 2010, the facts in this case originate in a collective agreement that was concluded in 2006 between what might be unofficially dubbed as ‘The Association of Locums for Dutch Orchestras’, and two trades unions known respectively as the FNV, and the Ntb.

In essence, a key provision of the collective agreement governed the minimum tariff that was payable to musicians who either stood-in or played with an orchestra on the basis of some sort of service agreement but not on the basis of a contract of employment.

The conclusion of this particular collective agreement generated some media attention. Moreover, the reports in the media spurred the Dutch Competition Authority to launch an investigation into the competition law aspects of the agreement.

In November 2007, the Ntb employee association and the association of orchestras decided to end the collective agreement as from 2008.

In December 2007, the Dutch Competition Authority issued a policy document that expounded its ‘vision’ on ‘The Dutch Competition Act and Provisions in Collective Agreements for the Self-Employed’. In essence, the Authority concluded that such agreements were not a priori excluded from the scope of competition law as laid down in Article 6 of the Dutch Competition Act and Article 81(1) of the EC Treaty.

The publication of this ‘vision’ meant that no further collective agreements were concluded if they contained clauses about the minimum tariffs an employer was obliged to pay a self-employed person.

Consequently, the FNV trade union decided to seek a judicial declaration from the Dutch courts to the effect that Article 6 of the Dutch Competition Act did not preclude the making of such agreements, and that the Dutch State had acted tortiously against the union by allowing the Authority to issue a document that gave a distorted representation of the relationship between cartel law and collective agreements.

More specifically, the FNV took the view that the Authority had wrongly taken as its starting point the premiss that collective agreements governing the tariffs of the self-employed fell within the scope of Article 81(1) EC Treaty. Instead, the FNV believed that the Authority should have taken as its starting point the view that such collective agreements fell within the scope of an exception to cartel law, as laid out by the CJEU in the trio of cases linked to Case C-67/96, Albany, and read together with Case C-222/98, Van der Woude. Further, the FNV contended that the Authority’s incorrect vision of EU law had really harmed the FNV trade union and its members – employers’ associations were no longer to prepared to conclude similar collective agreements, and the orchestras were now hiring stand-in musicians at rates that undercut the minimum wage rates set down in the collective agreements.

At The Hague District Court
The action for the judicial declaration was brought before The Hague District Court, and the FNV even requested a reference be made to the CJEU. However, the FNV was unsuccessful and no reference was made.

To begin with, The Hague District Court held that the CJEU in Case C-222/98, Van der Woude had not expanded the scope of the collective-agreement exception in the ‘Albany’ trio of cases.

Applying the CJEU’s case law here meant that if the ‘nature and purpose’ of this particular collective agreement, which set the tariffs for the engagement of self-employed musicians, was going to come within the scope of the ‘Albany’ exception, then two cumulative criteria had to be fulfilled. First, the ‘nature’ of the agreement meant that it must flow from the social dialogue, and be concluded as a collective agreement between the employers’ association and the trades unions. Second, if this particular collective agreement was going to pass ‘the purpose’ part of the test, then the agreement must contribute directly to improving the terms and conditions of employment of employees.

Applied here, the District Court thought that even if such an agreement would contribute to improving the terms and conditions of employment (broadly conceived), then this was at best an ‘indirect’ improvement for employees and not a ‘direct’ improvement, which the CJEU’s test required. Since the second criterion had not been fulfilled, The Hague District Court held that the collective agreement before it could not benefit from the collective agreement exception to EU cartel law. Consequently, the District Court found for the Dutch State.

On appeal to The Hague Court of Appeal, it was decided that a reference to the CJEU could be made.

Questions Referred
According to the Curia website, The Hague Court of Appeal has asked:

1. Must the competition rules of European Union law be interpreted as meaning that a provision in a collective labour agreement concluded between associations of employers and associations of employees, which provides that self-employed persons who, on the basis of a contract for professional services, perform the same work for an employer as the workers who come within the scope of that collective labour agreement must receive a specific minimum fee, falls outside the scope of Article 101 TFEU, specifically on the ground that that provision occurs in a collective labour agreement?

2. If the answer to the first question is in the negative, does that provision then fall outside the scope of Article 101 TFEU in the case where that provision is (also) intended to improve the working conditions of the employees who come within the scope of the collective labour agreement, and is it also relevant in that regard whether those working conditions are thereby improved directly or only indirectly?