10.6092/issn.1561-8048/9699
The Court of Justice of the European Union has been shaping over the last thirty years the concept of “worker” for the purpose of determining the scope of application of employment rights provided by EU labour law. The concept, initially elaborated with a view to enhance the free movement of workers within the common market, has then been extended to other pieces of EU labour legislation and to the so-called labour exception to antitrust law. The outcome of the Court’s jurisprudence is the expansion of the employment protections granted by EU labour law beyond the employment contract, to the benefit of non-subordinate workers economically and/or operationally dependent from a client/principal.
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The Evolving Concept of “worker” in EU law
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Emanuele Menegatti
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The Evolving Concept of “worker” in EU law
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The Evolving Concept of “worker” in EU law                                       Italian Labour Law e-Journal
Emanuele Menegatti                                                                      Issue 1, Vol. 12 (2019)
  subordinated s
e.menegatti@unibo.it                                                                          ISSN 1561-8048
                                                                https://doi.org/10.6092/issn.1561-8048/9699




          The Evolving Concept of “worker” in EU law
                                       Emanuele Menegatti*

 1. Introduction. 2. The concept of “worker” as part of the making of the single market. 3.
 The concept of “worker” as gateway to EU employment protection. 3.1 The evolution of
 the concept and its scope of application. 4. The final consecration of the EU single concept
 of “worker”. 5. The implications of the Court of Justice elaboration: Employment protection
 beyond the employment contract. 6. Conclusions.


                                                Abstract
     The Court of Justice of the European Union has been shaping over the last thirty years the
     concept of “worker” for the purpose of determining the scope of application of employment
     rights provided by EU labour law. The concept, initially elaborated with a view to enhance the
     free movement of workers within the common market, has then been extended to other pieces
     of EU labour legislation and to the so-called labour exception to antitrust law. The outcome of
     the Court’s jurisprudence is the expansion of the employment protections granted by EU labour
     law beyond the employment contract, to the benefit of non-subordinate workers economically
     and/or operationally dependent from a client/principal.


     Keywords: European Union law; Court of Justice of the European Union; free movement of
     workers; equal pay; employment protection Directives; antitrust law; scope of application;
     dependent contractors; casual workers.


 1. Introduction.

    The Court of Justice of the European Union (CJEU) has played over the last thirty years
 an increasingly important role in the identification of the scope of employment protection
 provided for by EU labour law. In the framework of the preliminary reference procedure,
 the Court has had the chance to shape it in order to address the issues related to non-standard
 and precarious work arrangements, not falling within the domain of labour law. Namely,
 work relations where supposed independent contractors are economically and/or
 functionally and/or operationally dependent from one main client.
    The CJEU elaboration has initially been confined in the field of the free movement of
 workers (§ 2); then, starting from the beginning of the twenties, it has dealt with the scope
 of the employment rights provided by EU primary and secondary law (§ 3) and the labour
 exception to antitrust law (§4). The outcome of the CJEU jurisprudence is a broad concept


 * Professor of Labour Law, University of Bologna-Alma Mater Studiorum. This article has been submitted to
 a double-blind peer review process.
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of “worker”, much broader than most of the national concepts of “employee”, which will
be most likely influenced by it (§ 5).


2. The concept of “worker” as part of the making of the single market.

   EU law has never clearly provided a definition of “worker” or “employment contract” in
order to size the gateway to its system of employment protection1. The CJEU has therefore
been in charge of developing it.
   In this regard, in Hoekstra2 the Court gave to the concept of worker a “community
meaning” for the purpose of enhancing the free movement of workers within the Union
granted by article 45 TFEU. The Court expressly recognized that if this concept was on
national laws, member states could eliminate at will the protection afforded by EU law to
migrant workers.
   The content of the concept was for the first time finalised in Lawrie-Blum3, referring to
any person that for a certain period of time performs services:

    [a] “for and under the direction of another person”
    [b] “in return of which he receives remuneration” engaged in
    [c] “effective and genuine activities”.

    The subsequent CJEU jurisprudence has thoroughly investigated and developed the
elements (b) and (c).
    The economic nature of the activity performed has thus been considered the relevant
element for the purpose of granting the rights attached to free circulation. It has been widely
recognized, excluding only those activities “on such a small scale as to be regarded as ‘purely
marginal and ancillary’” (Levin, Meeusen) 4, which do not include in principle: temporary
engagement of two and a half months (Ninni-Orasche)5; part-time employment providing an
income lower than that which is considered as the minimum required for subsistence (Levin);
on-call workers without any obligation to show up for work when requested and no
guarantee as to the hours to be worked (Raulin)6; professional traineeship performed by a
trainee lawyer (Kranemann)7; activities performed by members of a community based on
religion or another form of philosophy (Udo Steymann)8.

1 The only reference to something that may be similar to a definition is included in Directive 89/391, article 1
(1)(c): “worker: any person employed by an employer, including trainees and apprentices but excluding
domestic servants”.
2 CJEU, Case C-75/63 Mrs M.K.H. Hoekstra (née Unger) v Bestuur der Bedrijfsvereniging voor Detailhandel en Ambachten

(Administration of the Industrial Board for Retail Trades and Businesses), ECLI:EU:C:1964:19.
3 CJEU, Case C-66/85 Deborah Lawrie-Blum v Land Baden- Württemberg ECLI:EU:C:1986:284. See Nogler L.,

Rethinking the Lawrie-Blum Doctrine of Subordination: A Critical Analysis Prompted by Recent Developments in Italian
Employment Law’, in International Journal of Comparative Labour Law and Industrial Relations, 2010, 26 (1), 83-102
4 CJEU, Case C-53/81 D.M. Levin v Staatssecretaris van Justitie, [1982] ECR 1035; CJEU, Case C-337/97 C.P.M.

Meeusen v Hoofddirectie van de Informatie Beheer Groep, ECLI:EU:C:1982:105.
5 CJEU, C-413/01 Franca Ninni-Orasche v Bundesminister für Wissenschaft, Verkehr und Kunst, ECLI:EU:C:2003:600.
6 CJEU, Case C-357/89 J. M. Raulin v Minister van Onderwijs en Wetenschappen, ECLI:EU:C:1992:87.
7 CJEU, Case C-109/04 Karl Robert Kranemann v Land Nordrhein-Westfalen, ECLI:EU:C:2005:187.
8 CJEU, Case C-196/87 Udo Steymann v Staatssecretaris van Justitie, ECLI:EU:C:1988:475.


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   A quite “generous” approach concerned also the “remuneration” indicator, since it has
not been given any relevance to the fact that the remuneration was supplemented by financial
assistance payable out of the public funds (Kempf )9.
   The reference to the “direction”, characterising the difference between an employee and
a self-employed person, has never received any real consideration for the purpose of the
freedom of circulation10. A worker can circulate as employee or self-employed to the same
extent. As made clear by the Court in Asscher11, when he/she performs a work activity in a
foreign country, equality of conditions, within the meaning of article 45 (2) TFEU, are
address to national employee or self-employed, depending on the classification given by the
Member State to that worker.
   At the end of the day, once a minimum amount of work is performed and some sort of
remuneration granted, very few activities have been excluded from the Court’s definition of
“worker”. One of the few examples available were those performed as a part of a
rehabilitation program for drug addicts (Bettray C-344/87)12. The concern of the CJEU was
to boost the economic freedoms and the sound functioning of the single market. It had little
to do with the social purposes of labour law. This is the reason why the Court focused its
attention mainly on the pursuit of genuine economic activities somehow remunerated,
leaving aside the status of subordination.
   Still for the purpose of granting the sound functioning of the common market, the
European concept of “worker” was then endorsed by the Court with regard to the
application of the principle of equal pay for equal work for male and female workers ensured
by article 157 (ex Article 141) TFUE. The concern addressed in Allonby13 was, more precisely,
that of assuring conditions of undistorted competition by preventing social dumping. After
having emphasized the importance of the principle of equal pay, forming “part of the
fundamental principles protected by the Community legal order”, the Court concluded that
the term worker “cannot be defined by reference to the legislation of the Member States but
has a Community meaning”. As for the definition, the Court moved beyond the Lawrie-Blum
approach, in two ways: it emphasised the employer’s “hetero-organisation”, above the
traditional “direction”, giving relevance to “the extent of any limitation on [workers] freedom
to choose their timetable, and the place and content of their work”; it excluded any relevance
to “the fact that no obligation is imposed on [the workers] to accept an assignment” 14.
   This last finding looks extremely important for the purpose of the present analysis. The
commitment to an ongoing engagement, which has led some national courts to exclude the
qualification in term of subordination of casual work arrangements - most recently for gig-
workers15 – bears no relevance for the CJEU.


9 CJEU, Case C-139/85 R. H. Kempf contro Staatssecretaris van Justitie, ECLI:EU:C:1986:223.
10 See Countouris N., The concept of ‘Worker’ in European Labour Law: Fragmentation, Autonomy and Scope, in Industrial
Law Journal, 2017, 47, 202.
11 CJEU, Case C-107/94 P. H. Asscher v Staatssecretaris van Financiën, ECLI:EU:C:1996:251.
12 CJEU, Case C-344/87 Bettray v Staatssecretaris van Justitie, ECLI:EU:C:1989:226.
13 CJEU, Case C-256/01 Debra Allonby v Accrington & Rossendale College, Education Lecturing Services, trading as

Protocol Professional e Secretary of State for Education and Employment, ECLI:EU:C:2004:18.
14 Allonby, para 72.
15 Tribunale di Milano 10 september 2018, http://www.bollettinoadapt.it/wp-

content/uploads/2018/09/28009967s.pdf (accessed 11 July 2019); Tribunale di Torino 7 may 2018,
http://www.bollettinoadapt.it/wp-content/uploads/2018/05/7782018.pdf (accessed 11 July 2019); Juzgado

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3. The concept of “worker” as gateway to EU employment protection.

    The market-making process, supporting the elaboration of a common EU concept of
worker for the purpose of the mentioned Treaties provisions16, led the Court to a different
approach in the area of employment protection directives. As stated in Danmols17, the
Directive 77/187 on the safeguard of the rights of employees involved in a transfer of
undertaking is not intended “to establish a uniform level of protection throughout the
community on the basis of common criteria”. It just seeks a “partial” harmonisation for the
purpose of smoothing excessive differences between member states legislations, which could
hinder the creation of the single market. This did not include the scope of application of the
Directive, which had to be addressed only to those who were “protected as an employee
under national employment law”, as literally stated by article 2 of Directive 2001/23
(replacing Directive 77/187)18.
    The Court’s approach started changing at the beginning of the new millennium, alongside
the increasing relevance of the EU social sphere. Social protection started been considered
an aim in itself of the Union action, no longer just instrumental in the creation of the
common market. A process enhanced by the new role acquired by the Charter of the
Fundamental Rights of the European Union (CFREU) after the Lisbon Treaty, and recently
relaunched by the initiative of the European Commission “Establishing a European Pillar of
Social Rights Social” 19.
    In the face of the increasing relevance and multiplication of atypical work arrangements,
the Court started worrying about a narrow delimitation by member states of the scope of
employment rights provided by EU labour law, which could jeopardise its social aims. It has


de lo Social de Madrid, 4 April 2019, sentencia n. 53/19,
http://www.ugt.es/sites/default/files/sentenciaestimatoriaglovovictor.pdf (accessed 11 July 2019).
On the issues concerning gig-workers and their qualification there is a large literature. See, among the many
fine works available, De Stefano V., The rise of the «just-in-time workforce»: On-Demand Work, Crowdwork and Labour
Protection in the «Gig-Economy», in ILO Paper Series, 71, 2016; Prassl J., Humans as a Service. The Promise and Perils of
Work in the Gig Economy, Oxford University Press, 2018; Ales E., Protecting Work in the Digital Transformation:
Rethinking the Typological Approach in the Intrinsically Triangular Relationship Perspective, in Aa.Vv., Working in Digital
and Smart Organizations Legal, Economic and Organizational Perspectives on the Digitalization of Labour Relations, Palgrave,
2018, 11; Cherry M.A., Aloisi A., Dependent contractors in the gig economy: a comparative approach, in American University
Law Review, 66, 2017, 636.
16 See Barnard C., EU Employment Law, Oxford University Press, 2012, 35-39. In this regard see also Giubboni

S., Being a worker, in European Labour Law Journal, 2018, 2 where he recalls the distinction proposed by D’Antona
M., Sistema giuridico comunitario, in Caruso B., Sciarra S. (eds.), Scritti sul metodo e sulla evoluzione del diritto del lavoro –
Scritti sul diritto del lavoro comparato e comunitario, Milano, Giuffrè, 2000, 1, 377-380 between “cohesive”
harmonization and “functional” harmonization, the latter “aimed at promoting the Union’s autonomous social
values (and not directly targeted at regulating the market)”.
17 CJEU, Case C-105/84, Foreningen af Arbejdsledere i Danmark v A/S Danmols Inventar, ECLI:EU:C:1985:331.
18 See Countouris N., (10), 203 who referred to this Court’s approach as to “Danmol Ortodhoxy”.
19 See European Commission, Commission Staff Working Document Accompanying the Document Communication from

the Commission to the European Parliament, the Council, the European and Social Committee and the Committee of the Regions,
establishing a European pillar of social rights,
http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM:2017:250:FIN, 2017 (accessed 28 June 2019). It
significantly includes the objective of granting to self-employed full access to social protection, covering both
social assistance and social security, under conditions comparable to those of employees.
On the development of the EU framework towards the grant of employment rights to vulnerable self-employed
see Risak M., Dullinger T., (30), 13-16. Williams C., Lapeyre F., Dependent self-employment: Trends, challenges and
policy responses in the EU, in Working Paper ILO, 2017.

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then developed a different approach following two lines20: on the one side, extending the
application of the EU concept of “worker” over national definition to an increasing number
of pieces of EU labour legislation; on the other side, expanding, case after case, the notion
of “worker”.


3.1. The evolution of the concept and its scope of application.

   The adoption of the EU concept of “worker” in the area of employment protection
Directives has until recently regarded only those employment protection Directives – a
minority – not determining their subjective scope of application by referring to member
states definitions of “employee”.
   More in detail, in Danosa21, dealing with the protection afforded to pregnant workers by
the Directive 92/85, the Court moved from the findings of the Lawrie-Blum case calling for
the necessity of a common concept of workers and excluding any relevance of the
qualification under national law22. As for the concept, after having recalled the “basic”
Lawrie-Blum definition - “a person performs services for and under the direction of another
person, in return for which he receives remuneration” –, the CJEU took the chance for
expanding it significantly.
   The case concerned the sole member of a capital company’s Board of Directors,
responsible for managing the company’s assets, directing and representing it. Under the
national legislation at stake (Latvian), as well as under most of the member states law, she
was not considered as a “worker”. Nonetheless, the CJEU opened up to the possibility that
she was in a relationship of subordination to that company, considering “all the factors and
circumstances characterizing the relationship between the parties”23. The Court observed
that “even though Ms Danosa enjoyed a margin of discretion in the performance of her
duties, she had to report on her management to the supervisory board and to cooperate with
that board”24. Moreover, under the national law at stake, she could “be removed from his or
her duties by a decision of the shareholders, in some circumstances following suspension
from those duties by the supervisory board”25, as she actually was. In particular, she was
dismissed “by a body which, by definition, she did not control and which was able at any
time to take decisions contrary to her wishes”26.
   Similar conclusions were reached in Holterman27, still dealing with the director and manager
of a capital company. The case concerned the establishment of jurisdiction pursuant to
Regulation No. 44/2001. In this regard, according to the relevant conflict of law rules


20 The development of the EU concept of worker has been deeply analyzed by Countouris N., (29); Risak M.,

Dullinger T., (18), Giubboni S., (15); Van Peijpe T., EU limits for the personal scope of employment law, in
European Labour Law Journal, 2012, 3, 35.
21 CJEU, Case C-232/09 Dita Danosa v LKB Līzings SIA ECLI:EU:C:2010:674.
22 Danosa, para 41.
23 Para 46.
24 Para 49.
25 Para 50.
26 Para 50.
27-CJEU, Case C-47/14 Holterman Ferho Exploitatie BV and Others v F.L.F. Spies von Büllesheim

ECLI:EU:C:2015:574.

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provided for in section 5 of the Regulation, it was necessary to understand whether the
manager could be classified as a “worker”. Even if the decision did not involve the
application of employment protections, the Court decided to share the same notion of
worker used in Danosa provided that “the regulation aims to provide the weaker parties to
contracts, including contracts of employment, with enhanced protection by derogating from
the general rules of jurisdiction”28.
    Two very relevant aspects emerge from the just mentioned cases: common social
protection objectives justify the endorsement of a common concept of “worker” within
different regulatory contexts; the EU concept of “worker” is broader than that shared by
many national employment tests29, because of the “light” meaning given to “direction”.
    In Balkaya30 and Commission v. Italy31 the common concept of “worker” has involved the
interpretation of Directive 98/59 on the approximation of the laws of the Member States
relating to collective redundancies. Facilitated again by the absence of any reference to the
national concepts of “worker”, the Court concluded that it “must be given an autonomous
and independent meaning in the EU legal order”32, and that “the nature of the employment
relationship under national law is of no consequence as regards whether or not a person is a
worker for the purposes of EU law”33.
    With regard to the concept, the ECJ had not difficulties in including an “executive” within
the meaning of “worker” in Commission v. Italy, making application of the usual Lawrie-Blum
approach. It went further in Balkaya, once again beyond the traditional understanding of the
employment relation and once again dealing with a member of the board of directors of a
capital company. Even if he was not considered by German case-law an “employee”, the
Court concluded otherwise in the light of the same elements considered in Danosa: he was
appointed by the general meeting of the company shareholders, which “may revoke his
mandate at any time, even against his will”; he was subject to the direction and supervision
of the same body; he did not hold any shares in the company for which he carried out his
functions34. Still in Balkaya, the Court recognised the status of “worker” also to a person
performing under a traineeship scheme, financially supported by the public authority. To this
end, the Court recalled its jurisprudence developed for article 45 TFEU, under which bears
no relevance the fact that a person “does not carry out full duties”, “works only a small
number of hours per week and thus receives limited remuneration”, whose “remuneration
comes through public grants”35.



28 Para 43.
29 For an overview on the concept of “employee” in different national jurisdictions, see Waas B., Heerma van
Voss G. (eds.), Restatement of Labour Law in Europe, I, The Concept of Employee, Hart, 2017; Nogler L., The Concept
of “Subordination” in European and Comparative Law, Università degli Studi di Trento, 2009; Perulli A., Subordinate,
Autonomous and Economically Dependent Work: A Comparative Analysis of Selected European Countries, in Casale G.
(ed.), The Employment Relationship. A Comparative Overview, Hart Publishing, 2011, 137; Countouris N., The
Employment Relationship: A Comparative Analysis of National Judicial Approaches, in Casale G. (ed.), The Employment
Relationship. A Comparative Overview, Oxford, Hart Publishing, 2011, 35.
30 CJEU, Case C-229/14 Ender Balkaya contro Kiesel Abbruch- und Recycling Technik GmbH ECLI:EU:C:2015:455.
31 CJEU, Case C-596/12 European Commission v Italian Republic ECLI:EU:C:2014:77.
32 Balkaya, para 33
33 Para 35.
34 Para 40.
35 Para 50.


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     Interestingly, these conclusions were based on a purposive interpretation of the Directive
98/59, aimed at grating an “effet util” to it. With this regard, the Court stated that its objective
of affording a “greater protection to workers in the event of collective redundancies” would
be undermined by a narrow definition of “worker”36.
     An autonomous EU concept of worker has been put forward also in Union Syndicale
Solidaires Isère for the purpose of the application of the Directive 2003/88, concerning certain
aspects of the organisation of working time37. The case involved atypical workers, employed
under a quite peculiar “educational commitment contracts” related to casual and seasonal
activities for a maximum of 80 days a year, and their claim for the right to the minimum daily
rest period granted to workers by the French Labour Code. According to the essential feature
of an employment relationship, as elucidated in the Lawrie Blum doctrine, the Court
concluded that these working activities were to be considered within the scope of the
working time Directive.
     A broader concept of “worker” was endorsed by the CJEU also in Fenoll 38, dealing with
another entitlement recognised by the Directive 2003/88, that is to say the right to annual
paid holydays. The decision concerned people admitted to special Work Rehabilitation
Centre, aimed at granting personal fulfilment of seriously disabled persons – who cannot
work in ordinary undertaking - by offering them opportunities for various work activities,
medico-social and educational support, living arrangements. According to the Court, they
could be classified as workers within the meaning of the Directive at stake, despite the
peculiar characteristic of their work activity, the reduced level of productivity of the
individuals concerned, and the limited amount of the remuneration they were paid.
     The Court’s decisions so far were related to labour law Directives not determining their
scope by referring to the national concept of “employee”. Missing the referral, it was not
difficult for the CJEU to overcome the Danmol “minimalist” approach and put forward an
autonomous European concept of “worker”. However, even when recently the Court had
to deal with Directives, whose application is linked to national definitions, it decided to give
little importance to the referral, going beyond the wording of the legislative text.
     This was partially done in O’Brein39, concerning the application of the principle of equal
treatment between part-time workers and comparable full-time workers set forth by
Directive 97/81, implementing the relevant Framework Agreement. Article 2 of the
Framework Agreement identifies the scope of the right through an unequivocal referral to
workers “who have an employment contract or employment relationship as defined by the
law, collective agreement or practice in force in each Member State”.
     Apparently, the Court maintained the Danmol “minimalist” approach, already endorsed
with regard to the same Directive in the preceding Wippel case40. In its opinion, the part-time
Agreement, just like the transfer of undertaking Directive, does not aim at a full
harmonization of national legislation, but at merely “setting out the general principles and


36 Balkaya para 44; Commission v. Italy para 47.
37 CJEU, Case C- 428/09 Union syndicale Solidaires Isère v Premier ministre and Others ECLI:EU:C:2010:612.
38 CJEU, Case C-316/13 Gérard Fenoll v Centre d'aide par le travail "La Jouvene" and Association de parents et d'amis de

personnes handicapées mentales (APEI) d'Avignon, ECLI:EU:C:2015:200.
39 CJEU, C-393/10 Dermod Patrick O’Brien v Ministry of Justice, formerly Department for Constitutional Affairs,

ECLI:EU:C:2012:110.
40 CJEU, Case C-313/02 Nicole Wippel v Peek & Cloppenburg GmbH & Co. KG, ECLI:EU:C:2004:607.


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minimum requirements for part-time working, to establish a general framework for
eliminating discrimination against part-time workers”41. However, the Court did not stop
here. It went on saying that, in any case, “the discretion granted to the Member States by
Directive 97/81 in order to define the concepts used in the Framework Agreement on part-
time work is not unlimited”42. The referral to national law and practices cannot jeopardise
“the achievement of the objectives pursued by a directive and, therefore, deprive it of its
effectiveness … In particular, a Member State cannot remove at will, in violation of the
effectiveness of Directive 97/81, certain categories of persons from the protection offered
by that directive”43. In short, exclusions provided by national laws may be permitted, only if
they are not to be regarded “as arbitrary”44 and the Court of Justice will watch over these
exclusions.
    In the following Betriebsrat der Ruhrlandklinik decision45 the Court went even further. The
case involved a not-for-profit association member, who worked as a nurse in a clinic, in
return for a remuneration, under a secondment of staff agreement between her association
and the clinic. Since she did not have the status of “worker” under national law, the Court
was asked whether it was also the case under EU law for the purpose of the application of
the Directive 2008/104 on temporary agency work. Interestingly the Directive at stake not
only determines its scope referring to the national definition of “worker”; it reinforces the
referral by adding that its rules shall not affect “national law as regards the definition of pay,
contract of employment, employment relationship or worker”. Exactly the same wording of
the Directive on transfer of undertaking, which gave birth to the Danmol “minimalist”
approach. Nevertheless, the Court clearly changed its mind, sentencing that the referral to
the national concept of “worker” cannot “be interpreted as a waiver on the part of the EU
legislature of its power itself to determine the scope of that concept for the purposes of
Directive 2008/104”46. On the contrary, it has to be linked to “any person who has an
employment relationship” in the sense set out by the Court itself in its jurisprudence47.
    The conclusion is expressly supported by a purposive interpretation of the Directive. In
the Court view, the objectives of the directives to “ensure the protection of temporary agency
workers and to improve the quality of temporary agency work by ensuring that the principle
of equal treatment is applied” would be undermined if the concept of worker was restricted
to persons falling within the scope of that concept under national law48. If in O’Brein the
safeguard of the EU legislation effects led the Court to put some limits to the discretion of
national laws, in Betriebsrat der Ruhrlandklinik that discretion has been excluded at all.
    It is not much of a leap to say that the Court has inaugurated a new approach, opposite
to the Danmol “minimalism”, potentially applicable to all Directives dealing with employment
protections, no matter whether they refer the scope of application to national concepts of

41 Para 31.
42 O’Brien, Para 34.
43 Para 36.
44 That is to say, “if the nature of the employment relationship concerned is substantially different from the

relationship between employers and their employees which fall within the category of ‘workers’ under national
law” (para 42).
45 CJEU, Case C-216/15 Betriebsrat der Ruhrlandklinik gGmbH v Ruhrlandklinik gGmbH, ECLI:EU:C:2016:883.
46 Para 32.
47 Para 33.
48 Para 35.


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worker or not. Since they are all equally aimed, as well as the Directive on temporary agency
work, at establishing “a protective framework for … workers”, the Betriebsrat der
Ruhrlandklinik conclusions on the necessity of linking the scope of the labour law Directives
to an EU autonomous concept of workers looks suitable for them all, even beyond their
wording.


4. The consecration of the single EU concept of “worker”.

    The concept of worker developed by the CJEU case-law has been crystalized in FNV
Kunsten 49. The decision dealt with the boundaries of the so-called labour exception to
antitrust law. More precisely, Article 101 of the TFEU prohibits “agreements between
undertakings, decisions by associations of undertakings and concerted practices, which may
affect trade between member states and which have as their object or effect the prevention,
restriction or distortion of competition within the internal market”. However, as stated by
the Court in Albany50, collective negotiation aimed at “the improvement of conditions of
work and employment” does not fall under the scope of limitations imposed by article 101,
although they provide certain restrictions of competition; otherwise the social policy
objectives pursued by such agreements would be seriously compromised.
    The case at stake considered a collective agreement granting minimum fees for self-
employed musicians, substituting for members of an orchestra. The Court pointed out that
service providers, even performing activities similar to those performed by employees, are in
principle “undertakings” within the meaning of EU law51; therefore, an organisation carrying
out negotiations in their name or on their behalf does not act as a trade union but as an
association of undertakings, falling under the scope of Article 101 (1) TFEU 52. The labour
exception can apply instead in case service providers turn out to be “false self-employed”, in
actual fact behaving as “workers”.
    The Court took therefore the opportunity to recap the concept of worker in the light of
its established case-law, referring it to a person (a) acting “under the direction of his employer
as regards, in particular, his freedom to choose the time, place and content of his work”; (b)
who “does not share in the employer’s commercial risks and, for the duration of that
relationship, forms an integral part of that employer’s undertaking, so forming an economic
unit with that undertaking”53. As for this last requirement, a service provider has not to be
considered an independent contractor “if he does not determine independently his own
conduct on the market, but is entirely dependent on his principal, because he does not bear
any of the financial or commercial risks arising out of the latter’s activity and operates as an
auxiliary within the principal’s undertaking”54.



49 CJEU, Case C-413/13 FNV Kunsten Informatie en Media v Staat der Nederlanden, ECLI:EU:C:2014:2411.
50-CJEU,    Case C-67/96 Albany International BV v. Stichting Bedrijfspensioenfonds Textielindustrie,
ECLI:EU:C:1999:430.
51 Para 27.
52 Para 30.
53 Para 36.
54 Para 33.


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   Looking back from this last approach to the path undertaken by the CJEU, one can see
that there is no distinction between the concept of ‘worker’ elaborated for the different pieces
of EU legislations. From the initial purpose of granting uniformity of rules and practices
under article 45 and article 157 TFEU, to the labour exception to antitrust law, passing
though the overcoming of the Danmol “minimal” approach, the expansion of the concept
does not present any leap of logic from one decision to another, regardless of the fact they
deal with different regulatory purposes. The glue between the various decisions is always the
Lawrie-Blum concept of “worker”, on which the Court has added the adjustments elaborated
for the different cases.
   The idea of a single definition of “worker” for the different purposes of EU law seems
expressly confirmed by the mentioned recent decisions, referring to “the term ‘employee’ for
the purpose of EU law” 55, so breaking away from a former approach, which, on the contrary,
pointed out that “there is no single definition of worker in Community law: it varies
according to the area in which the definition is to be applied” 56; opinion, the latter, shared
by some commentators57.


5. The implications of the ECJ elaboration on the concept of “Worker”: Employment
protection beyond traditional employment contracts.

   Taking a closer look at the concept of ‘worker’, it can be summarized, recalling the just
considered FNV Kunsten case, on three traditional employment tests.

   (a) Direction: the employer dictates the manner of work (including the time and place
of work).
   (b) Integration into the employer’s business organisation.
   (c) Economic reality: the worker does not bear any risk of loss, does not employ anyone,
does not have any direct access to the market.

   Even if this concept seems very similar to that of “employee” as shared by many different
national jurisdictions, it differs from the latter in two very important elements: “direction”
has been significantly watered down by the Court of Justice so as to coincide with that of
“coordination”, expressed for example by a duty to report and cooperate with corporate
bodies in Danosa and Balkaya; the commitment to ongoing engagement – namely, the




55 FNV Kunsten para 34, Union Syndicale Solidaires Isère para 28, Betriebsrat der Ruhrlandklinik para 32. It seems

implicitly shared also by Danosa, Balkaya, Commission v. Italy.
56 Martinex Sala, para 31; Allonby para 63; CJEU, Case C-543/03, Christine Dodl and Petra Oberhollenzer v Tiroler

Gebietskrankenkasse, ECLI:EU:C:2005:364 para 27.
57 This is the opinion of Giubboni S., (15), 12 according to who “it is impossible to identify – in the framework

of EU law – an organic and unitary employee/worker status that is actually comparable, not only in terms of
scope, with those defined in the national legal systems”. On the contrary, Risak M., Dullinger T., (30), 18-20
believe, as we do, that there is a “tendency to unify the concept of ‘worker’ not only with regard to primary law
but also in the field of secondary law”.

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Emanuele Menegatti                                                                   Italian Labour Law e-Journal
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mutuality of obligations test developed by English Courts58 or the legal continuity of the
employment relationship in civil law countries59 - bears little relevance or no relevance at all.
    These differences make the EU notion of ‘worker’ much broader to that of “employee”
commonly endorsed by national judiciaries, to the point of including intermediate categories
workers - variously referred by some legislations to as dependent contractors, economically
dependent, “parasubordinate” workers, employee-like persons60 - and, more in general, all
those workers engaged in effective and genuine activities, economically, functionally and/or
operationally dependent from a client/principal, receiving in exchange some kind of
remuneration. At the end of the day, the large “box” represented by the single EU concept
of worker can be referred to workers without adjectives, with the only exclusion of ‘purely’
self-employed workers and entrepreneurs; that is to say, those having a “direct” access to the
markets, where they normally operate in favour of a plurality of clients, out of any functional
and operational subordination to someone else’s business, possibly employing other workers.
    Eventually, the CJEU jurisprudence has entitled dependent contractors, including those
casually engaged, to a fair share of employment protections provided by EU primary and
secondary law, so far expressly identified by the Court in pay, equality between male and
female workers, protections for pregnant workers, certain aspects of the organisation of
working time, regulation of collective dismissals procedures, protection of temporary agency
workers, and the right to collective bargaining, possibly as a derogation to antitrust law; with
the addiction, by the express will of the EU legislature, of some rights related to maternity
(Directive 2010/41), the equality rights provided by the second generation’ directives on
discriminations (Dir 2006/54, Dir 2000/78, 2000/43, Dir 2010/41).


6. Conclusions.

   By shaping the concept of worker, the CJEU has managed to extend the employment
rights considered beyond the traditional scope given by national laws, still narrowed in the
majority of the member states to traditional employment relations. Behind the attitude of the
Court lies an extensive use of a purposive method of interpretation, supported by the increasing
relevance acquired by the social objectives of the Union, lastly boosted by the entry into force of the
CFREU after Lisbon Treaty.
   This might lead to believe that the process of extension of EU employment rights to non-
subordinate workers is probably not over yet. On the one side, the CJEU attitude towards
the interpretation of the scope of employment protection Directives is likely to extend the
use of the EU concept of worker beyond their wording, as recently occurred in Betriebsrat der
Ruhrlandklinik. On the other side, it can be expected that in parallel more and more often
national courts will have to conform their interpretation to that of the CJEU, giving access
to the mentioned employment protections on the basis of the EU concept of “worker”.


58 Deakin S., Wilkinson F., The Law of the Labour Market: Industrialization, Employment and Legal Evolution, Oxford
University Press, 2005, 306-307.
59 Perulli A., (29), 146.
60 See Razzolini O., The Need to Go Beyond the Contract: 'Economic' and 'Bureaucratic' Dependence in Personal Work

Relations, in Comparative Labor Law & Policy Journal, 2010, 31 (2), 289-301.

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Emanuele Menegatti                                                          Italian Labour Law e-Journal
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   In this respect, many member states will probably be forced to move beyond the rigid
dichotomy “employee”/“self-employed” and the attached outmoded approach to
employment rights of “all or nothing”. This could improve the situation of an increasing
number of under protected workers not fitting into the “employment” category. It could at
the same time be beneficial for national Courts, who have frequently found themselves called
to provide a remedy against workers’ exploitation, making use of the often inadequate
instruments of traditional employment tests. They would be finally exempted from the
necessity to stretch the “employee” category beyond its reasonable borders in order to
provide non-subordinate workers with the necessary employment protections.




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Copyright © 2019 Emanuele Menegatti. This article is released under a Creative Commons
Attribution 4.0 International License




https://doi.org/10.6092/issn.1561-8048/9699                                                                  83
