Subordinazione o dipendenza? Uno studio sulla linea di demarcazione tra lavoro subordinato e lavoro autonomo in sei sistemi giuridici europei
10.6092/issn.2421-2695/11254
Il saggio include, nella sua parte centrale, una analisi comparata su sei sistemi giuridici (Slovacchia, Olanda, Germania, Regno Unito, Francia e Italia) volta ad esaminare la distinzione, in tali paesi, tra lavoro subordinato e lavoro autonomo e, qualora presente, fra questi ed un terzo status legale. In particolare, sono stati sottoposti ad analisi i criteri distintivi utilizzati dalla legge e dalla giurisprudenza in ciascuno di detti ordinamenti. La finalità di questa parte del saggio è quella di fornire una base uniforme alla discussione e valutazione critica dei differenti approcci utilizzati in questi sistemi legali per dare forma a quegli status giuridici che assicurano la protezione del diritto del lavoro. La terza sezione intende contribuire a tale dibattito traendo delle conclusioni dalla analisi comparata ed introducendo il concetto di ‘assoggettamento’ come possibile catalizzatore delle tutele al posto del concetto di subordinazione onde assorbirne e ampliarne la portata. Si ritiene, infatti, che la categoria dell’‘assoggettamento’ possa ‘leggere’ meglio l’attuale scenario socioeconomico nel quale le categorie giuridiche necessariamente debbono inserirsi. Un affresco critico di tale scenario è, infatti, fornito nella prima sezione del saggio. Nelle ultime righe del saggio è rivolto un invito ai legislatori ad operare al fine di garantire anche ai lavoratori autonomi ‘genuini’ strumenti più efficaci che siano volti a garantire loro protezione in caso di malattia o impedimenti di lungo termini ad operare sul mercato nonché il diritto ad una pensione adeguata.
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Pierluigi Digennaro
Labour & Law Issues
protezione del diritto del lavoro
Subordinazione o dipendenza? Uno studio sulla linea di demarcazione tra lavoro subordinato e lavoro autonomo in sei sistemi giuridici europei
Text.Serial.Journal
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Pierluigi Digennaro
2020/07/02
10.6092/issn.2421-2695/11254
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Università Statale di Milano
2421-2695
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Weiss M. and Schmidt M., <em>Germany,</em> ELL – Suppl. 366, 2010.
Subordination or subjection? A study about the dividing line between subordinate work and self-employment in six European legal systems
https://labourlaw.unibo.it/article/download/11254/11255
6
      Subordination or subjection?
A study about the dividing line between
subordinate work and self-employment
     in six European legal systems


          PIERLUIGI DIGENNARO
         Università di Milano Statale




             vol. 6, no. 1, 2020
                ISSN: 2421-2695
           Subordination or subjection?
     A study about the dividing line between
     subordinate work and self-employment
          in six European legal systems


                                                   PIERLUIGI DIGENNARO
                                               University of Milan Statale
                              ERC ‘SHARE’ Project Postdoctoral Researcher
                                             pierluigi.digennaro@unimi.it




                                ABSTRACT

       This article presents a comparative analysis of six countries (France,
Germany, Italy, Slovakia, the Netherlands, and the United Kingdom) that aims
to examine the distinction between work under an employment contract
(subordinate work) and self-employment, shedding light on the main criteria
used by the law and judges to identify the two concepts and also provides an
overview of how legal systems have tackled the problem of forms of work that
lie halfway between work under an employment contract and self-
employment. It also provides a uniform basis for discussions and a critical
assessment of the various approaches that these legal systems have chosen to
shape the concept of employment contract/subordinate work or other legal
statuses that ensure protection.
       In the final section, some conclusions are drawn about the studied
countries, and the new concept of ‘subjection’ is introduced to reorganise the
protection granted by labour law since it absorbs and expands the concept of
subordination upon the consideration that the former can better match the
current socio-economic scenario. Indeed, the latter scenario is described in
section one of the article. Lastly, the study stresses the need to protect the
                        P. DIGENNARO, Subordination or subjection?



genuine self-employed through mechanisms to ensure social protection in
cases of sickness, long-term impediments to work and retirement.


Keywords: subordinate employment; self-employment; worker; ‘subjection’;
labour law protection.



                                http://dx.doi.org/10.6092/issn.2421-2695/11254




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                              P. DIGENNARO, Subordination or subjection?



              Subordination or subjection?
A study about the dividing line between subordinate work
   and self-employment in six European legal systems

SUMMARY: Introduction: Reasons for this study and content of the article. Section 1.
     Preliminary remarks related to the socio-economic scenario 1.1 The lost centrality of
     a social archetype. 1.2. Subordination understood as a power to direct someone
     else’s work has lost its capability to describe reality. – Section 2. The countries legal
     frameworks. 2.1 The binary approach 2.1 (a) Slovakia. 2.1. (b) The Netherlands. 2.2
     The hybrid approach. 2.2. (a) Germany 2.2 (b) The United Kingdom. 2.3. The
     expansion of the protective statute in a formal binary approach 2.3 (a). France 2.3
     (b) Italy. – Section 3. Conclusion. 3.1. Concluding remarks on the investigation 3.2.
     What can be done? The concept of ‘subjection’ as a more inclusive
     conceptualization to redefining subordination and ensuring protection.



Introduction: Reasons for this study and content of the article

       The study that follows is a fraction of a broader transdisciplinary
project(1) that aims at conducting an in-depth study on how solo self-
employment is measured, classified and represented in six European countries:
France, Germany, Italy, Slovakia, the Netherlands, and the United Kingdom
and, therefore, for this reason, it is focused on the same cluster of countries
under scrutiny in the main project according to its general design(2). In
particular, on the basis of the definitions existing in the six European states
under scrutiny, this article examines the distinction between work under an
employment contract (subordinate work) and self-employment, shedding light


           (1) This research is part of the broader research project SHARE – Seizing the Hybrid Areas
of work by Re-presenting self-employment – which has received funding from the European Research
Council (ERC) under the European Union’s Horizon 2020 research and innovation programme (grant
agreement N. 715950).
           (2) The project has selected these six countries because: they represent six different welfare
state systems; of the composition of their labour forces in terms of the balance between employees
and self-employed workers; and because of the number of solo self-employed among autonomous
workforce. As clarified further in the article, self-employment without personnel has increased in the
latter decade in the EU. Moreover, 4 out of 6 of the selected countries displays an upwards trend in
the last 12 years in terms of the percentage of self-employed in their respective workforces. Italy and
Germany, on the contrary, show a downward trend, but Italy is one of the countries in Europe with
the highest percentage of self-employed workers (up to 21.7 in 2018). On this point, refer to the
statistical Annex reported in European Commission Directorate-General for Employment, Social
Affairs and Inclusion, Employment and Social Developments in Europe 2019. Sustainable growth for all: choices
for the future of Social Europe, EU, 2019 in https://op.europa.eu/en/publication-detail/-
/publication/747fefa1-d085-11e9-b4bf-01aa75ed71a1/language-en




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                        P. DIGENNARO, Subordination or subjection?



on the main criteria used by the law and judges to identify the two concepts
and also providing an overview about how legal systems have tackled the
problem of categorising forms of work that challenged the traditional
distinction between subordination and self-employment. This article also
provides a uniform basis for discussions and a critical assessment of the
various approaches that these legal systems have chosen to shape the concept
of employment contract/subordinate work or other legal statuses that ensure
protection.
        The six countries under scrutiny are grouped according to similarities.
Therefore, Slovakia and the Netherlands are presented first, since their legal
frameworks are based on a dual approach that is still entrenched in the idea of
a subordination understood as the employer’s power to direct someone else’s
work. This does not mean, as is clarified further in the paper, that these
countries do not face the issue of potential camouflage of dependent
employment. Germany and the UK are presented next, as two cases of legal
orders where the legislators decided to embed a tertium genus, which lies
between subordinate work and self-employment with the aim to tackle the
grey area of economic dependence. The case of France also represents a
system where the weight of the power to direct is still at the centre of the
definition of a contract of employment, thus it has been coupled with the case
of Italy. Both these countries use different approaches to achieve a similar aim,
which is to extend the scope of labour law to the most vulnerable self-
employed, although their systems are still formally based on a distinction
between subordination and self-employment that does not include a tertium
genus.
        In the final section, some conclusions are drawn about the studied
countries, and the new concept of ‘subjection’ is introduced to reorganise the
protection granted by labour law since it absorbs and expands the concept of
subordination upon the consideration that the former can better match with
the current socio-economic scenario – described in the next section.
Moreover, the study stresses the need to protect the genuine self-employed
through mechanisms able to ensure social protection in case of sickness, long
impediment at work and retirement.




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                                P. DIGENNARO, Subordination or subjection?



      Section 1. Preliminary remarks related to the socio-economic
scenario

          1.1 The lost centrality of a social archetype

       Over more than 40 years, the way that work as a means of production
has been organised has changed and has thus sparked a large debate.
Manufacturing was outsourced from the West to the East in both Europe and
Asia. On-site integrated systems of production based on employment
contracts have increased in the Global South, while the services sector has
expanded in the Global North.
       During the 20th century, two styles of production – Taylor-Fordism and
Toyotism – emerged as models in the industrial sector for organising the
workforce in such a pervasive way that they marginalised others. Today, the
scenario is entirely different due to a variety of factors, including the
emergence of new technologies, the end of vertical-integrated firms, the shift
from the industrial to the service economy (in the West), the
internationalisation and organisational decentralisation of enterprises, and the
financialization of the economy(3). These elements combined with a deep
(de)regulation process in the field of labour law that began in the last part of
the 20th century, as well as with a socio-cultural trend, which promoted the
idea of people becoming ‘entrepreneurs of themselves’(4). Therefore, in the
economy of the 21st century, the centrality of the standard employment
contract as a legal archetype came under stress. Of course, a life-long
subordinate contract of employment was not the only option, not even after
the Second World War, but it was the most common legal scheme to exchange
work versus wages during the so-called ‘trente glorieuses’.
        A shift compared with the previous century can also be perceived
when a subjective perspective is considered. In fact, focusing on precarious
workers, it is possible to realise that many of them are forced to bear more
than one job at once, so that they simultaneously share multiple legal statuses,



           (3) A. Salento, Finanziarizzazione e regolazione del lavoro. Un’alternativa analitica alle vulgate del
postfordismo, TAO Digital Library, 2012, in particular, brings forward criticism of most of the labour
law scholars who, in his opinion, accepted a view of the general scenery according to technological
determinism and therefore completely missed the consequences on human resource management due
to the emergence of financial capitalism.
           (4) Refer to U. Bröckling, The entrepreneurial self: Fabricating a new type of subject, Sage, 2015 and to
the forward-looking words of M. Foucault, The Birth of Biopolitics: Lectures at the Collège de France 1978–
1979, Palgrave Macmillan, 2008 [1979].




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                                P. DIGENNARO, Subordination or subjection?



including self-employment(5). The implications in terms of welfare and social
protection, as well as for health and safety in working, are easy to grasp. It is
also worth clarifying that this kind of personal condition is not entirely new,
but it is now more widespread in society at large than it was in the past.
         The ILO(6) has framed the growing use of self-employment as a
variable form of non-standard employment because of the similarity of the
consequences for the workforce, and also because of the drivers that bring
employers to make full use of all of the variable forms of non-standard
employment. Indeed, the definition of non-standard employment used in the
2006 ILO report includes all those forms of employment that deviate from
standard employment, i.e. employment of indefinite duration for the same
employer under a contract of subordination. Therefore, it refers to temporary
employment, part-time work, temporary agency work and other multi-party
employment relationships, disguised employment relationships and also
dependent self-employment. Once self-employment is framed in this picture,
it can be safely maintained that it is part of an increasing worldwide trend.
According to the ILO, «over the past few decades, in both industrialised and
developing countries, there has been a marked shift away from standard
employment to non-standard employment».
         As far as self-employment is concerned, both the ILO and labour law
scholars focus their attention on a specific area, midway between the
employment relationship and self-employment, that is marked out by
economic dependence inasmuch as workers that are formally self-employed
depend concretely on one or a few clients for their income(7). Nevertheless,
the area of self-employment is broader than the area of economic dependence.

            (5) On this point, see the definition of ‘hybrid areas of self-employment’ in A. Murgia and V.
Pulignano., Neither precarious nor entrepreneur: The subjective experience of hybrid self-employed workers, in EID,
2019.
            (6) International Labour Office (ILO), Non-standard employment around the world: Understanding
challenges, shaping prospects, 2016.
            (7) The European Commission gave its endorsement to the concept of ‘economically
dependent work’ as a way to cover «situations which fall between the two established concepts of
subordinate employment and independent self-employment», COM(2006) 708 final GREEN PAPER,
Modernising labour law to meet the challenges of the 21st century. The document stated that those workers
«occupy a ‘grey area’ between labour law and commercial law. Although formally ‘self-employed’, they
remain economically dependent on a single principal or client/employer for their source of income».
Moreover, at the request of its social partners, the Commission initiated a study by A. Perulli
Economically dependent / quasi-subordinate (parasubordinate) employment: legal, social and economic aspects. Study for
the EU Commission in 2002. Consistently the latter author maintained the idea that to give relevance in
juridical terms to the concept of economic dependence would be a tool to provide workers who fall
into the ‘grey area’ with sufficient protection. Among the many papers by the above-mentioned author
on the issue of self-employment see in particular, A. Perulli A. Un Jobs Act per il lavoro autonomo: verso
una nuova disciplina della dipendenza economica? WP CSDLE "Massimo D'Antona".IT, 2015, n. 235, 1-30).




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                             P. DIGENNARO, Subordination or subjection?



The spectrum of possibilities included within the former is vast since
precarious or bogus self-employment also stands side-by-side with genuine
self-employment(8) Moreover, both high-skilled and low-skilled jobs can be
performed as self-employed and, lastly, an autonomous worker can shape their
activity in a way that resembles a business or can work as a solo self-employed
with this peculiar form of self-employment gaining space in the last decade(9)
in statistical terms. From this point of view, the category of economic
dependence is too loose to define an archetype to which the regulation would
be attached. Indeed, an entrepreneur can also be economically dependent
from other players in the market.
        In recent years, a new phenomenon that is relevant to the portrayed
scenario has developed, by contributing to re-shaping economies, and creating
legal schemes that were sometimes considered among self-employment in
many countries. Indeed, the emergence of the so-called online platform
economy, or digital economy, includes many different arrangements in terms
of how the service is organised and performed, as well in terms of contractual
assets between the three parties that are typically involved in the exchange.
More broadly, the platform economy, which matched well with the flat
structures that enterprises had already started to embed in the 1980s, raised a
range of legal questions connected to labour law deserving the attention of
legal scholars and found a response by legislators – in some cases through
special dedicated laws(10).
        Digital platforms and applications through which the exchanges take
place are all technical tools that can cover many different legal transactions
and also potentially include work that is performed with a variable degree of
autonomy (and so also through an employment relationship that entails


           (8) A. Murgia, R. Bozzon, P. Digennaro, P. Mezihorak, M. Mondon-Navazo, & P. Borghi,
Hybrid Areas of Work Between Employment and Self-Employment: Emerging Challenges and Future Research
Directions, FS, 2020, 4, 86.
           (9) According to the Oecd/Eu, The Missing Entrepreneurs 2017: Policies for Inclusive
Entrepreneurship, OECD Publishing, 2017, 27 in the Europe Union, although the proportion of
workers who are self-employed has remained fairly constant at approximately 15% over the last
decade, there have been some changes in the nature of self-employment. Indeed there has been an
increase in the proportion of self-employed workers without employees who accounted for 65.8% of
the self-employed in 2002 but reached up to 71.5% of the cluster in 2016.
           (10) According to V. De Stefano, and M. Wouters, Embedding platforms in contemporary labour law,
in (ed.) J. Drahokoupiland K. Vandaele, A modern Guide to Labour and the platform Economy,
(forthcoming), Edward Elgar Publishing 2021, five regulatory approaches can be distinguished
worldwide to provide some form of labour protection to platform workers: a lex specialis approach; an
universal labour rights approach; an approach that classifies platform workers as employees; an
approach that classifies them as temporary agency workers, dependent contractors or employee-like
workers; and an option that establishes an employment relationship between the worker and the user.




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                               P. DIGENNARO, Subordination or subjection?



subordination). This explains why globally, and sometimes also in the same
country, judges have variably framed the performed jobs alternately as self-
employment or dependent work on a case-by-case base(11).
        Platforms are a virtual market where each provider can be contacted at
any time, hired and also paid, on the basis of an individual negotiation or a
pre-set fee(12) or where companies can choose the best opus to embed in their
production cycle. From this perspective, new technologies have been used as a
way of partially discharging business risk onto the shoulders of self-employed
workers who consequently became micro-entrepreneurs, notwithstanding their
work is still linked to someone else’s productive organisation. At the same
time, applications are also used to contract out microtasks or low-value jobs,
paying as little as possible and keeping the business organisation as simple as
possible. From this point of view, the use of new technologies is driven by the
same goal that resulted in the explosion of self-employment(13), subcontracting
and outsourcing over the past few decades. In other words, it has proven to be
a strategy for companies aimed at reducing labour costs to extract as much
value as possible, particularly in the traditional, low-value-added sectors of the
economy(14). The concept of transaction costs(15) can still perfectly explain
both the above-mentioned phenomena.




          (11) For an overview of the Civil law countries' case-law on platform-workers refer to G.
Pacella, Il lavoro tramite piattaforma digitale nella giurisprudenza dei Paesi di civil law, LLI, 2019, 5, 1, 17.
          (12) P. Ichino, Le conseguenze dell’innovazione tecnologica sul diritto del lavoro, in RIDL, 17, 4, 525-
563, 526.
          (13) An accurate analysis of statistics on self-employment shows differentiated dynamics
within the EU cluster (Eurofound, Exploring Self-employment in the European Union, Luxembourg,
Publications, 2017) since, for example, northern European countries had self-employment rates below
10% (8% in Denmark and 9% in Estonia and Luxembourg), while Mediterranean countries had a
higher percentage (for example, Greece with 31% or Italy at a rate of 23%). Those rates could suggest
that massive use of self-employment, including a remarkable recourse to false self-employment, is
typical for economies that have strived to compete globally by means of a reduction of labour costs
while, by contrast, access to high-skilled self-employed workers (who are obviously a smaller part of
the cluster and therefore have a lower impact on the statistics) has been beneficial in the most
innovative sectors on which some countries place their economic hopes.
          (14) As has been said in A. Salento. Digitalizzazione delle imprese e trasformazione delle competenze.
Quadro analitico e riscontri empirici, Labor, 2019, 131-142, 133, a distinction should be made between jobs
that are properly digital and traditional jobs that embed interactions by means of digital tools.
          (15) R. Coase, The Nature of the Firm, JLE &O, 1937 1, 4, 3-17.




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                                 P. DIGENNARO, Subordination or subjection?



      1.2 Subordination understood as a power to direct someone else’s
work has lost its capability to describe reality

        As is well known, for historical reasons, legal systems have framed
economically productive work into three statuses: dependent employment;
self-employment; and entrepreneurial activity – with dependent employment
considered the standard at the climax of Taylorism/Fordism in the last
century, and self-employment carved out as a residual catch-all category that
collected all the work that was not done for and within a firm. The
consequence is that, during the fourth industrial revolution, the legal category
of self-employment covers situations that are very different in concrete terms.
It is important to specify that the author is well aware that the birth of labour
law and the concept of subordination preceded the establishment of the social
archetype of the factory worker and of the Fordist factory. Nevertheless, as
legal orders evolve with society, it is clear that the hetero-direction somehow
'cannibalised' the same concept of subordination once the archetype gained
space in society.
        Debates about the changing nature of work and prospects for the
retention of the standard employment relationship have recently become more
widespread, but scholars had already started discussing the viability of the
traditional rules in the 1990s, when they realised that the vertical disintegration
of production16 was already breaking down the ‘Aristotelian unity’ of place,
time and action that marked subordinate work(17). Therefore, the fourth
industrial revolution, and the new smart technologies more generally, built on
a trend that was already in place, adding new nuances.
        In the practice of employment law, judges and legislators faced
increasing numbers of cases where the definition of employee status was more
complicated to apply. From a legal standpoint, across Europe, on the one
hand, the opportunity to demand work in a flexible way increased thanks to a
large wave of reforms but, on the other hand, employment regulations and
case-law have increasingly been extended to include workers who fail the full
test of employee status within the scope of at least some of the protections
ensured by labour laws.
        Statutory definitions of employment, employee or contract of
employment, as well as the similar tests that courts developed in many


         (16) H. Collins, Independent contractors and the challenge of vertical disintegration to employment protection
laws, OJL S, 1990, 10, 3, 353.
         (17) B. Veneziani, Gruppi di imprese e diritto del lavoro, LD, 1990, 4, 611.




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European countries, have mostly been shaped around a concept of
subordination that postulates the existence of a hierarchical relationship of
power and consequently a possibility for the employer to direct employee
activities(18). The related powers to control and sanction the employees in case
of breach of contract are logically interconnected with the first. Once an order
is issued, then it is possible and important to control whether it was executed
and to sanction the worker in cases of inaccuracy or infidelity.
        Over time, what has diminished in terms of ability to regulate the
dividing line between those who are subjected to a different entity and those
who are really autonomous, has been the concept of subordination as hetero-
direction. The mechanism of power and control that was once exercised by
means of the employment contract, in a growing number of cases, is today
exercised de facto directly through the market. Nonetheless, if it is correct that
the hetero-direction of the work has been utilised as the primary feature
through which a working relationship is framed in the area of subordination,
that is not the only factor taken into consideration by case law in particular.
This is because legal orders have already had to contend with a kind of
attenuated subordination that leaves a lot of room for autonomy, even in
employment contracts(19), ever since the decline of Taylorism (and even
before that on account of managerial positions), and therefore long before the
factors mentioned in the previous section (including the last wave of
technologies) were able to reshape production systems.
        The analysis conducted on the six mentioned countries showed that
other tests or criteria alongside the hetero-direction had been commonly
developed to identify the area of subordination or, more broadly, cases that
were considered to deserve protection by the legal systems. Some indicators
are used to measure or predict whether the worker takes the ultimate risk of
loss or chance of profit (this is a kind of business risk assessment). Other
indicators are instead used to perform a hetero-organisation test, which
investigates whether the performed work is integrated into someone else’s
organisation. Lately, this scheme has found an echo in a landmark EU Court
of Justice judgment.

          (18) For this reason, as the employment contract can also be described as a set of powers in
favour of the employer, a comparative study G. Casale (ed.), The employment relationship: A comparative
overview, ILO, 2011 assembled the criteria used in different legal traditions worldwide around an
investigation into the presence of hierarchical power, from which the other three descend (power to
direct, control and sanction).
          (19) A. Supiot, Lavoro subordinato e lavoro autonomo. DRI, 2000, 2, 217-239 also in French in DS,
2000, 2 (Les nouvaux visages de la subordination) has written about autonomy in the employment contract
and dependence on the contract of service.




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                            P. DIGENNARO, Subordination or subjection?



        Notwithstanding that the notion of ‘worker’ in EU law is variable and
fragmented depending on the function of the law,20 it is also true that the
European Court of Justice has elaborated a Euro-unitary notion of
subordinate worker essentially with the purpose of ensuring freedom of
movement to the workforce in the internal market (Art. 45 of the TFEU).
However, recently, the Court of Justice was asked essentially whether a
provision of a collective labour agreement – which sets minimum fees for self-
employed service providers who are members of one of the contracting
employee’s organisations and perform for an employer, under a work or
service contract, the same activity as that employer’s employed workers – does
not fall within the scope of Article 101(1) TFEU. This judgment(21) represents
a landmark for the issue of the right to collective bargaining for self-
employers, but it also has its importance concerning the notion of ‘worker’.
Referring to its previous case-law, the Court also specified who is considered a
‘worker’ according to EU law and for the purpose of establishing the scope of
the Treaties. In doing so, the Court pointed out the three criteria mentioned
above. In the Court’s words(22), «the status of ‘worker’ within the meaning of
EU law is not affected by the fact that a person has been hired as a self-
employed person under national law, for tax, administrative or organisational
reasons, as long as that person acts under the direction of his employer as
regards, in particular, his freedom to choose the time, place and content of his
work(23) [hetero-direction], does not share in the employer’s commercial risks(24)
[business test] and, for the duration of that relationship, forms an integral part of
that employer’s undertaking, so forming an economic unit with that
undertaking»(25) [hetero-integration](26).




          (20) See Giubboni's extensive work on this point and in particular in English Worker, in
Dictionary of Statutes within Eu law, (ed.) Bartolini and others , Springer, 2019, 645. Also refer to M.
Risak and T. Dullinger T., The concept of ‘worker’ in EU law. Status quo and potential for change, ETUI,
Brussels, 2018.
          (21) CGUE 4.12.2014. FNV Kunsten, C-413/13
          (22) Paragraph 36.
          (23) See judgment CGEU 13.01.2004 Allonby, C-18/2004, paragraph 72.
          (24) See judgment CGUE 14.12.1989 Agegate, C-3/87, paragraph 36.
          (25) See judgment CGUE 16.09.1989 Becu and Others, C-22/98, paragraph 26.
          (26) Italics are mine and used to emphasise the passages of the Court’s reasoning that
resemble the three criteria in the brackets. Since it would be too long to report them more extensively,
see also paragraphs 33-34-35 of the judgment.




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           Section 2. Countries’ legal frameworks

           2.1 (a) Slovakia

        The Labour Law Code, adopted for the first time in 1965, was at first
largely amended by Act No. 3/1991 Coll, the purpose of which was to create
the basic legal framework for the transition to a market economy. This was
replaced to remove any remnants of the previous regime and a new Labour
Code was adopted in 2001 (27). This reform marked an approximation process
between Slovak and European Union law in many regards.
        In Slovakia work can be performed either as dependent work, which
requires a contract of employment, or as a business activity, which requires
that a civil or commercial legal relationship is established. The Labour Code
includes definitions of both ‘dependent work’(28) and ‘employer’(29).
        The Labour Code underwent many amendments over time(30),
including in 2007, 2012(31), 2015(32) and 2018. It has been reported that the
amendment of the Slovak Labour Code made in 2007(33), which introduced a


           (27) By means of Act No. 311/2001 Coll. It is important to note that Part. 1, which is related
to the general provisions and the scope of the Labour Code, includes a general clause according to
which, «Unless stipulated otherwise by the part one of this Act, the general provisions of the Civil
Code shall apply to legal relations according to paragraph 1» [1(4)]. This is of relevance since the first
part of the Labour Code concerns general labour law concepts, such as the legal personality of the
employer and employee, the method of counting time, and the invalidity of legal acts or legal
safeguards.
           (28) Part 1, General Provisions §1.
           (29) Part 1, General Provisions §7. «(1) An employer shall be a legal person or natural person employing
at least one natural person in labour-law relation and, if so stipulated by a special regulation, also in similar labour
relations.
(2) An employer shall act in labour-law relations in his/her own name and shall have responsibility arising from these
relations. An organisational unit of an employer shall also be an employer, if stipulated by special regulations or statutes
under special regulation. If a participant to labour-law relation is an employer, his/her organisational unit cannot
simultaneously be a participant and vice versa.
(3) An employee, who is also a statutory body or a member of a statutory body, shall have conditions according to § 43
paragraph (1) agreed in the employment contract by the body or the legal person who has established him/her as a
statutory body.»
           (30) Act No. 210/2003 (abolished soon after), Act No. 348/2007, Act No. 49/2009, Act No.
48/2011, Act No. 341/2011.
           (31) Act No. 361/2012 Coll., effective as of 1 January 2013. This reform largely contributed
to harmonising the Slovak labour law with European Union law, but also included a new definition of
dependent work, a new legal regulation of the probationary period, and stricter legal conditions of
definite-period employment contracts.
           (32) Art. 1(1) Act. 14/2015.
           (33) Part one, General Provisions, Scope of the Labour Code § 1 «(2) Dependent work, which is
carried out in a relationship where the employer is the superior and the employee is subordinate, is defined solely as work
carried out personally as an employee for an employer, according to the employer's instructions, in the employer's name,
for a wage or remuneration, during working time, at the expenses of the employer, using the employer's means of
production and with the employer's liability, and also consisting mainly of certain repeated activities.»




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definition of dependent work for the first time, was due to «an increased
number of cases where, in the legal practice, employees were being forced to
change their legal employment status to a commercial relationship status
despite the fact that these natural persons continued to perform the same
dependent work as they did before. In this way, employees were formally
transformed into entrepreneurs (henceforth labelled as ‘self- employed
persons’ – abbreviated as SZCO in the Slovak legislation) although in fact the
essential characteristics defining ‘business activity’ were not fulfilled».34
Successively, both the amendments made by law 361/2012 and by Act
14/2015 included changes in the definition of ‘dependent work’, which is now
consequently very different from the original version. The aim was to enlarge
the coverage of the original definition since the latter consisted of so many
elements that it was hard for an employee to meet them.
        According to the original version of the law, «dependent work, which is
carried out in a relationship where the employer is superior and the employee
is subordinate», was defined according to seven elements: a) work has to be
carried out personally; b) according to the employer’s instructions; c) in the
employer’s name; d) for a wage or remuneration; e) during working time; f) at
the expense of the employer, using the employer’s means of production and
with the employer’s liability; and g) consisting mainly of certain repeated
activities. The problem with this definition was that a working relationship
could be framed as dependent work only when all those requisites were
contemporarily fulfilled in a cumulative manner. The practical consequence
was that employers were allowed and used to establish more flexible labour
relations by concluding agreements that were formally civil or commercial
contract and which masked performance of dependent work instead. This also
made the work of inspectors more complicated(35). Therefore, «with the aim
of preventing the substitution of labour-law relations with other forms of
contractual relations (e.g. work carried out based on a trade licence)»(36), the
definition was changed in 2012 to remove any reference to the employee’s
expenses, means of production and liability, as well as to repetitive
activities(37). For the same reason, a specific prohibition relating to performing

         (34) M. Mészáros, ‘Employing’ of self-employed persons, CEJLLPM, 2018 1,1, 46, 53.
         (35) The previous situation is described by H. Barancová and A. Olšovská, Slovak Republic,
ELL Suppl., 2014, 414, Wolters Kluwer, 75.
         (36) European Platform tackling undeclared work Member State Factsheets and Synthesis Report,
European Commission, Directorate-General for Employment, Social Affairs and Inclusion, Brussels,
2017, 159.
         (37) The new text states that «Dependent work, which is carried out in a relationship where
the employer is the superior and the employee is subordinate, is defined solely as work carried out




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dependent work as a business activity or another earning activity based on a
contractual civil-law relation or a contractual commercial-law was stated(38).
Lastly, in 2015 the wording «for a wage or remuneration» was deleted.
        Despite the regulatory changes that took place, the current notion of
subordination seems to reduce the core of the concept to the hetero-direction
of work only. There are indirect proofs of this statement. First of all, a
description of the type of work, the place of work performance, together with
a working time schedule, are among the few substantial elements that a
contract of employment has to include to be deemed concluded and valid(39),
and they represent the frame upon which the control of the employer is
applied. Moreover, in the labour code, there is no specific mention of
integration in the employer’s organisation as an indispensable element of the
employment contract, so it can be only assumed implicitly. Economic
dependence is also not mentioned and, «from the point of view of the legal
regulations in force, it is fairly irrelevant»(40). However, among the criteria in
use to investigate the nature of the relationship, two have a partial ability to
measure the independence of the worker from the employee. The employee
does not perform work to make their own profit or work in their own name,
as this characteristics would frame the work performed as a business activity
regulated by the Commercial Code.
        The case of Slovakia demonstrates that when the concept of
subordination is so rigid and still only rooted in the idea of external direction,
it creates more opportunities for exploiting workers, above all in the current
economic scenario. Indeed, employers will use work otherwise regulated, for
example, as a form of self-employment to save costs in terms of taxation and
contributions and to also exclude the workforce from the protection of labour
laws.




personally as an employee for an employer, according to the employer's instructions, in the employer's
name, during working time».
           (38) Part. 1 §1[3] «dependent work shall not be a business activity or another earning activity based on a
contractual civil-law relation or a contractual commercial-law relation according to special regulations».
           (39) According to art. 43 (1) of Labour Code. The remaining ones are day of commencement
of work and wage conditions
           (40) On this point refer to R. Schronk, The Concept of ‘Employee’: The Position in Slovakia, in
Restatement of LabourLaw in Europe: The Concept of Employee. (eds.) B. Waas and G. Heerma Van Voss,
Hart Publishing, 2017. 619–640, 636 who reports also that «There is no relevant case law on this
issue».




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          2.1 (b) The Netherlands

        In 1909, a chapter to regulate various terms of the contract of
employment was introduced in the Civil Code, which was thereafter
modernised in 1997, on the occasion of the release of the new Dutch Civil
Code.
        In the Netherlands, dependent work is performed for the employer
under its direction, while autonomous workers are also considered to be
entrepreneurs. They are labelled as freelancers, or more properly ZZP
(Zelfstandige Zonder Personeel: self-employed without personnel). They have to
work for multiple clients and at their own expense and risk.
        As far as subordinate work is concerned, Art. 7:610 (section 7.10.1) of
the Dutch Civil Code contains a definition of ‘employment agreement’
described as an «agreement under which one of the parties (‘the employee’)
engages himself towards the opposite party (‘the employer’) to perform work
for a period of time in service of this opposite party in exchange for
payment»(41). As is clear from this statement, for the case of Dutch labour law,
the employment contract is based on a synallagmatic exchange of
remuneration and work. Moreover, the following article specifies that the
work has to be done on behalf of another person and creates a presumption
of the existence of an employment agreement when the work is performed for
«three consecutive months and this weekly or for at least twenty hours per
month»(42). This legal presumption has the function to reverse the burden of
proof on the employer, who has to persuade the court that the contract is not
a contract of employment.
        This article of the Code also states, similar to other legal systems, that
continuity in work performance for the same employer is considered to be an
essential criterion in distinguishing employment from work performed by an
independent contractor. This can be seen as an indirect way of measuring the
grade of integration into the organisation of the employer since the performed
work needs to be integrated into the employer’s ordinary cycle of production.
The landmark judgement(43) of the Supreme Court can be considered to be an

          (41) The second paragraph states that «when an agreement has the characteristics of both, an agreement
as meant in paragraph 1 and of another statutory regulated particular agreement, then the statutory provisions of the
present Title (Title 7.10) and the statutory provisions set by law for this other particular agreement shall apply
simultaneously (side by side) to that agreement», but in case of conflict, the previsions of this section of the
Code prevail.
          (42) Article 7:610, Sec. 7.10.1 CC. This article was amended to introduce the legal
presumption by the ‘Flexiblity and Security Act’ (Law 1998-05-14, No. 300).
          (43) Dutch Supreme Court, 28 June 1996, JAR 1996/153.




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additional indication in this same direction. The Court stated that there is no
contract of employment if the performed work is merely directed to the
extension of the knowledge and experience of a person(44) (as is in the case in
a training relationship) because the work should contribute to the realisation
of purposes of the employer to be framed as an employment contract. In
other words, unlike the case of self-employed workers, the employer’s
organisation is considered to be an institution that points out the aims and
target to which all the work must adhere.
        A further element of the employment contract is the personality of the
obligation to work, since the employee may not arrange to be replaced by a
third party, except with the consent of the employer, as in cases of sickness(45)
The words «in the service of the other party» (Art. 7:610) are considered to be
the core of the concept of subordination in the Dutch labour law, as it
entrusts to the employer the power to unilaterally issue binding rules
concerning the way in which the work has to be done. In some cases, the
exercise of the authority can be limited mainly to the organisational and
disciplinary aspects of the job. According to the Supreme Court of the
Netherlands, the element of ‘authority’ characterises the employment contract:
«The view that the component of ‘authority’ continues to be essential
dominates legal regulations as well. It is generally argued that replacing this
with other criteria would conceal the crucial importance of the employer’s(46)
discretionary power». In this regard, a jurisprudential contrast relating to the
subordination of workers of a well-known delivery platform was solved
partially by leveraging the 'authority' element. At first, the Court did not
recognise subordination(47), but later it overturned its position. Indeed, the
Court based its verdict(48) on two main points: a) the case concerns work that
is at the core of Deliveroo's business (this can be seen as a proof of the
relevance of the hetero-organisation or ‘alienness’ of the business in the Dutch
labour law); b) it was not possible to infer from the circumstance of the case

           (44) HR 9 October 1982, NJ 1983/230 (Hesseling v Stichting De Ombudsman). In this case a
student of the Social Academy pursued a traineeship at the Foundation of a Private Ombudsman.
Contra in the PhD Students v University of Amsterdam case, the Court stated that although the work of
PhD students is primarily aimed at obtaining a doctoral/PhD degree, their work was considered
‘work’ as understood according to the definition of employment contract.
           (45) Section 7.10.7, Article 7:659 CC. «The employee is obliged to perform the contracted work himself;
in performing his work he can only be replaced by someone else with approval of the employer» (par. 1).
           (46) G. Heerma Van Voss, The Concept of ‘Employee’: The Position in the Netherlands, in Restatement
of Labour Law in Europe: The Concept of Employee. (eds) B. Waas and G. Heerma Van Voss, Hart
Publishing, 2017. 477, 481.
           (47) Rechtbank Amsterdam, 23 July 2018, n. 6622665.
           (48) Rechtbank Amsterdam, 15th of January n. 7044576.




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that a relationship of authority between Deliveroo and the deliverer was
deficient.
        Since the Dutch Courts also used the control test extensively to
distinguish the contract of employment from self-employment, they incurred
the same difficulties as other national Courts in this regard, due to the
increasing defectiveness of this criterion. The Dutch Supreme Court clarified
that the Court’s assessment on the subordinate nature of a contract should
weigh all relevant circumstances that are connected with each other (‘holistic
approach’)(49). This led to the elaboration of some more indicators by case law
for the same purpose. To enumerate only the more important indicators, the
judge investigates: whether the worker has the freedom to refuse to work; the
discretion of the worker to organise their work and schedule; who bears the
entrepreneurial risks; who owns the material used to perform the job; whether
the worker performs other activities besides the one concerned; and whether
the person needs to perform other jobs for a living. Therefore, «generally
speaking, the control test is no longer seen as the unique or preponderant test
distinguishing the contract of employment from other agreements for the
performance of labour»(50)
        As far as self-employment is concerned, an independent contractor in
the Netherlands can perform a job by means of a contract for service 51 or a
contract of work. A contract of work is defined as an agreement whereby one
party (the independent contractor) agrees to produce particular work of a
tangible nature for a sum of money to be paid by the other party (in other
words, it is an obligation to deliver an opus perfectum). The contract implies the
absence of subordination, and there is no obligation for the contractor to
perform their duties personally.
        «A service provision agreement is the agreement under which one of
the parties (‘the service provider’) has engaged himself towards the other party
(‘the client’) to perform work on another basis than an employment
agreement, which work consists of something else than the making of a
tangible construction, the safekeeping of property, the publication of a work

           (49) Dutch Supreme Court, 11 February 2011, JAR 2011/75; Dutch Supreme Court, 17
November, 1978 1979, 140 and 5 November, 1982, NJ 1983, 231; Dutch Supreme Court, 8 May,
1998, JAR 1998/168.
           (50) A. Jacobs, The Netherlands, ELL Suppl. 421, 2015, 66.
           (51) The ‘contract for service’ is regulated by Article 7:400 (se. 7.7.1) et seq. Dutch Civil Code
which states that «A service provision agreement is the agreement under which one of the parties ('the service provider')
has engaged himself towards the other party ('the client') to perform work on another basis than an employment
agreement, which work consists of something else than the making of a tangible construction, the safekeeping of property,
the publication of a work or the transportation of persons or good» (par.1).




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or the transportation of persons or goods»(52). The service provider must
follow the directions the client has given them with regard to the performance
of the service(53). In this case, the instructions are related to the service, but
the client has no authority about the modality and organisation or the work
performed. In this case, the elements that are considered useful to determine
whether a worker can be qualified as an independent need to be found in a
specular way if compared with those that are in use in case of dependent work.
The most relevant are: the freedom to organise their work; whether payments
are made directly by several clients; the extent to which the worker bears an
entrepreneurial risk; the extent to which the worker supplies their own raw
materials, consumables and tools; and the extent to which, in addition to the
agreed work, other work is performed.
        Disregarding the peculiarities of each contract, all of them are, in
essence, discernible from the contract of employment «based on the lack of
authority of one party over the other»(54).
        Recently, in the Netherlands, the phenomenon of ‘payroll companies’
emerged that de facto have similarities with a specific tool that the French
legislator decided to embed (whose peculiarities are reported below). The
payroll companies exercise the role of the employer, although the employees
do not work directly for them. Since the scheme for this kind of relationship
resembles that of the temporary work agency, the Supreme Court stated that
they fall into the scope of Article 7:690 of the Civil Code, which is the article
that defines the latter. This decision was taken notwithstanding, differently
from work agencies, payroll companies should not play an intermediary role in
the labour market theoretically.


       2.2 (a) Germany

        In Germany, for many years the distinction between self-employed and
employees was based on Section 84(1) located in the Commercial Code
(Handelsgesetzbuch – HGB), which provides a legal definition of the term
‘commercial agent’ as a person «essentially free to arrange his professional
activities at his own discretion and decide when to perform a job». This is still
the notion of self-employment in Germany.


       (52) Section 7.7.1, art. 7:400 CC.
       (53) Section 7.7.1, art. 7:402 CC.
       (54) G. Heerma Van Voss, op.cit., 482.




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        Conversely, an employee was always deemed to be someone who may
not determine their work performance free from instructions by the employer
and who is bound by specific working times. In the Federal Labour Court’s
words, an employee is «a person who on the basis of a contract of private law
is obliged to perform work in the service of another person»(55)
        Although «personal subordination has always been understood to differ
from mere economic dependency on the employer […] meanwhile, it has
become highly contentious what personal subordination precisely means»(56).
For this reason, it was the Federal Court that elaborated, over time, a complex
notion of subordination consisting of a wide range of elements that had to be
combined and evaluated together.
        The Federal Court case-law laid down the foundation of the legislative
intervention in 2017, through which the new section 611a, which includes a
legal definition of an employment contract, was introduced into the Civil
Code(57). Indeed, the new definition is strongly based on the existing case law
and unites the typological method and the principle of primacy of facts. Some
scholars criticised this intervention, considering it too cautious and unable to
grasp the current world of work. Others focused their criticism on the poor
crafting of the law. Either way, the point is that the legislator «has strongly
oriented itself on the existing case law» with regard to the requirement
developed by courts over the years to avoid any wrong(58).
        In light of this and considering that it is not yet possible to measure
how the Courts will interpret the new law and if, in doing so, the consolidated
case law will change, it is still crucial to rely on the latter to understand what
distinguishes subordination from other legal statuses, such as self-
employment. In Germany, the Federal Labour Court clarified that a judge
needs to investigate the working relationship with an overall view, which

            (55) Federal Labour Court of 15 March 1978 - 5 AZR 819/79
            (56) M. Weiss and M. Schmidt, Germany, ELL – Suppl. 366, 2010,
            (57) According to section 611a BGB: «The employment contract obliges the employee, in the service of
another person, to perform work which is subject to instructions and determined by a third party and which is personally
dependent (section 611a sentence 1). The right to issue instructions may relate to the content, performance, time and place
of work (section 611a sentence 2). Anyone who is not essentially free to organise his activity and determine his working
hours is bound by instructions (section 611a sentence 3). The degree of personal dependence also rests on the nature of the
activity in question (section 611a sentence 4). An overall assessment of all circumstances must be made in order to
determine whether an employment contract exists (section 611a sentence 5). If the actual performance of the contractual
relationship shows that it is an employment relationship, the designation in the contract is irrelevant (section 611a
sentence 6).»
            (58) B. Waas, The legal definition of the employment contract in section 611° of the Civil Code in Germany:
an important step or does everything remain the same?, ILLe-J, 2019, 1, 12, 31-32 who also reports the other
scholars’ opinions on the new law.




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means that there is no single factor or criterion that is able per se to identify a
case as an employment relationship. This kind of approach is called the
‘typological method’.
        However, it is also true that, as in all the other legal frameworks, the
personal subordination understood as the power of the employer to direct the
work of the employee is still a key feature. Therefore, if a worker does not
receive instructions about the content or mode of their performance, about
working time and place of work, this is an important element that suggests
independence. Of course, the degree of subordination depends on the
characteristics of the job considered and, for example, the absence of a
workplace does not imply that the employment relationship does not exist
when instead all the other features are met.
        In addition to the above-mentioned control test, the Courts also
examine whether a person is part of the organisational structure of the
supposed employer or, in other words, whether work is performed for an
organisation which does not belong to the worker itself. So, for example,
Courts are also used to scrutinise whether tools and materials are provided by
the employer or whether work is performed interdependently – relying upon
or supporting the work of others.
        Since directions about the work can also be given by the customer in
the case of contracts for work, the integration of the hetero-direction and
hetero-integration is very important to distinguish employment, especially in
the case of high-skilled workers; the Federal Labour Court clarified that
«everything points to an employment contract if an activity is planned and
organised by another person and the ‘contractor’ is incorporated in a foreign
work organisation to an extent that the autonomous organisation of the work
is de facto all but impossible»(59) The Federal Court also takes into
consideration who bears the entrepreneurial risk under the terms of the
contract since the employees are not normally burdened with business risk.
        In Germany, there exists a category between employee and self-
employed worker, since the dichotomy between the self-employed – being
excluded from labour law – and employees – being fully covered by labour law
– was not considered a totally acceptable solution. The ‘Arbeitnehmerahnliche
Personen’(60) are self-employed whose economic situation nevertheless


        (59) Federal Labour Court 25.09.2013 -10 AZR 282/12.
        (60) On this topic refer to B. Wass, Crodwork in Germany, in (eds) Wass, Liebman, Lyubarasky
and Kezuka, Crodwork – A comparative Perspective, HSI Schriftenreihe, 22, 147-149 and 160-161 and M.
Weiss and M. Schmidt op. cit., 47-48.




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resembles that of an employee insofar as they are economically dependent
from their clients. The criteria to identify ‘economic dependency’ were also
developed initially by the courts. Indeed, the Federal Labour Court stated that
«economic dependence is usually given when the employee’s livelihood is
dependent on the utilisation of his labour and on the income he receives from
the tasks he carries out for the contractual partner»(61).
       Currently, employee-like persons are defined in section 12°(1) of the
Act on Collective Bargaining Agreements (Tarifvertragsgesetz – TVG) as persons
who: a) are economically dependent and in need of social protection
comparable to an employee; b) work on the basis of a contract of service or a
contract for work and services for other person; c) have to perform their
contractual duties personally and essentially without the help of employees;
and d) either the major part of their work is performed for one person or
more than on average half of their income is paid by one person. The client
can also be an institution, a corporation or even a group of companies. Key
elements of this status are the personality of the work performed and the
economic dependence with their client. It is clear that the dividing line here is
positioned on the lack of an organisation that would otherwise reach the level
of a small business undertaking. Only some of the statutory protection typical
of the employees has been extended to such workers. Hence, disputes
between them and their contractual partners are to be settled by labour
courts(62). They are treated in the same way as employees as far as minimum
standards for annual holidays and public holidays are concerned(63). They have
the right to join unions and exercise the right to collective bargaining, and
therefore, their working conditions are potentially regulated by collective
agreements(64). They cannot be discriminated against on the grounds of race
or ethnic origin, sex, religion or belief, for being disabled, or on the grounds of
age or sexual orientation(65). Other rights, such as temporary work permits and
parental leave, as well as the laws on safety, have been extended to such
workers.




        (61) Federal Labour Court, AP ArbGG 1979 § 5 No. 68
        (62) Section 5 paragraph 1 sentence 2 ArbGG.
        (63) Section 2 sentence 2 Federal Act on Holidays (Bundesurlaubsgesetz – BUrlG).
        (64) Section 12a TVG.
        (65) Section 6 paragraph 1 No. 3 General Act on Equal Treatment (Allgemeines
Gleichbehandlungsgesetz – AGG).




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         2.2 (b) The United Kingdom

        In the UK, it is possible to perform a job according to three personal
statuses: independent contractor (self-employment, also known in the UK as a
contract for service); employee(66) (also known as a contract of service) and
‘worker’.
        Currently, there exists a statutory definition of both employee and
‘worker’ in Section 230(1) of the Employment Rights Act 1996.
        The law states that «‘employee’ means an individual who has entered
into works under (or where the employment has ceased, worked under) a
contract of employment». The definition is somehow circular and not well
defined. Therefore, interpreters have to rely on the criteria elaborated by the
Courts for distinguishing between a contract of service and a contract for
services or, in other words, they need to examine «the common law of the
contract of employment, an area where, despite the marginal impact of many
statutory provisions, the legal ground rules are still the judge-made ones»(67).
        This case law thereafter developed in several tests in use to determine
when a contract of employment is set. This peculiarity is due to the British
labour law tradition, which conceptualised the contract of employment on a
case-by-case basis using pre-industrial conceptions of ‘service’(68), whereas
civil law systems of continental Europe moved from a general theory of
contract towards a specific concept of an autonomous contract of
employment(69). For this reason, and also because of the existence of a tertium
genus, the English common law category of ‘employee’ is frequently narrower
than the range of persons under a contract of employment in a civil law
system.
        Several tests were developed by Courts to distinguish between a
contract of service and a contract for services. In the UK the first test to be
developed was the ‘control test’. The recurrence of a power to control the
manner in which the work is done is considered to be the critical element. A



          (66) The Growth and Infrastructure Act in 2013 has introduced a sub-status of the employee
status. Individuals can opt to become ‘Employee shareholders’ to receive shares in their employing
company or parental undertaking of a minimum value fixed by the law. If they do so, they have to
renounce: the right to be unfairly dismissed; the right to statutory redundancy pay; the right to request
flexible working; and the right to request to undertake study or training.
          (67) M. Freedland, The Contract of Employment, Clarendon Press, 1976,1.
          (68) Cfr. B. Veneziani, The employment relationship, in The Transformation of Labour Law in Europe, a
Comparative Study of 15 Countries 1945-2004, (ed) B. Hepple, Hart Publishing, 2009.
          (69) M. Butler., Great Britain, ELL Suppl. 456, 2018, 91.




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                             P. DIGENNARO, Subordination or subjection?



contract of service, following this test, is one under which an employer «can
not only order or require what is to be done but how it shall be done»(70)
       Of course, the higher the skills of the employees are, the more
complicated it is to only rely on the control test. Consequently, in the UK, as
in other legal frameworks, a second test has been applied in a few situations.
The so-called ‘integration test’ investigates whether the person is part of the
employer’s organisation. In other words, «under a contract of service, a man is
employed as part of the business, and his work is done as an integral part of
the business; whereas under a contract for services, his work, although done
for the business, is not integrated into it but is only accessory to it»(71).
       The Courts, therefore, started to apply the multiple-test that considers
more factors, none of which is necessarily determinative: «The starting point
of this approach is to ask whether there is a sufficient degree of control to
make the worker an employee, and then to ask whether the provisions of the
contract are consistent with its being a contract of service»(72).
       In a number of cases, the most significant inconsistency with a contract
of employment has been found to be the entrepreneurial character of self-
employment. In other words, the judges introduced a so-called ‘business test’
or ‘economic reality test’, which aims to ascertain whether a person is in
business on their own(73). «Factors to be considered in this context include the
extent to which the person takes the chance of profit or risk of loss by
investing money or equipment in the business»(74). The Court also check
whether a substitution clause, which would allow the employee not to perform
work personally, is integrated into the contract. Personal work is considered to
be a characteristic of the contract of employment(75).


         (70) Lane v. Shire Roofing [1995] IRLR 493 at 495. See also an older judgment such as Ready
Mixed Concreate Ltd v. Minister for Pensions and National Insurance [1968] 2 QB 497, 515 (QB).
         (71) Stevenson, Jordan & Harrison Ltd v. Macdonald & Evans (1952) 1 TLR 101
         (72) M. Butler, op. cit. 92. See the case Express and Echo Publications Ltd Taunton [1999] IRLR
367, CA. According to J. Benjamin and J. Prassl «today the courts adopt a compound approach to
defining the contract of employment combining tests of control, organisation and considering
whether an individual is ‘in business on his or her own account or, alternatively, whose business is it»
in The Concept of ‘Employee’: The Position in the UK, Restatement of Labour Law in Europe: The Concept of
Employee., (ed) B. Waas and G. Heerma van Voss, Hart Publishing, 2017, 747–770, 756.
         (73) Ready-Mixed Concrete (SE) Ltd v. Minister of Pensions [1968] 2 QB 497; Lane v. Shire Roofing
[1995] IRLR 493 at 496.
         (74) Butler, op. cit, 93. About the tests developed by case-law refer also to Deakin and Morris,
Labour Law, 6th Ed. Hart Publishing, 2012, 121-160.
         (75) Recently, the EU Court of Justice was asked (Case C-692/19) whether Directive 2003/88
precludes provisions of national law that require to work to be done personally to fall within the scope
of the Directive. Thus, the option to subcontract tasks is considered a characteristic of self-
employment in the UK. The EU Court realised an Order (22 April 2020) reminding the UK Court of




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                                 P. DIGENNARO, Subordination or subjection?



        A relatively more recent test is one that relies on the ‘mutuality of
obligation’ to determine whether a global contract exists. This is a more formal
approach that looks at the obligations that parties underwent according to the
contract. Basically, such a mutuality exists whereby an employee is obliged to
work and an employer to continue to provide work or remuneration. The
point of this test is to stress that a worker who can decline to work cannot be
considered as an employee under a contract of service. This test resembles the
idea of a synallagmatic relationship between the two parties, but once
understood in such a way, it would be too generic to clearly distinguish a
contract of service from a contract for service. Therefore, it is intended as a
contractual mutual obligation to exchange labour for remuneration in the
future and finds a substantial correspondent in the requirement of contractual
stability (in other words, an obligation for mutual collaboration extended over
a significant period)(76).
        Section 230 of the Employment Rights Act 1996 also provides a
definition of ‘worker’ that states: «‘worker’ means an individual who has
entered into or works under (or, where the employment has ceased, worked
under): a) a contract of employment, or b) any other contract, whether express
or implied and (if it is express) whether oral or in writing, whereby the
individual undertakes to do or perform personally any work or services for
another party to the contract whose status is not by virtue of the contract that
of a client or customer of any profession or business undertaking carried on
by the individual». This definition is broader than that of employee, and it
excludes those individuals who are not engaged intuitu personae because, for
example, they in turn hire other personnel to complete the task or job, and
those who work for professional clients. Also, a contract for the sale of a
completed work (an opus perfectum) would exclude the applicability of this
status, since the latter should be considered as self-employed. At the same
time, the distinction to be drawn between self-employment and ‘workers
status’ is a problematic one. Self-employed people who are not running their
own business would fall within the statutory definition of ‘worker’, while self-




its previous case law on this point. The Court clarified that the personality of work is one of the
elements that precludes the person from being classified as ‘worker’ for the purpose of the directive.
          (76) B. Grandi, Fatti, categorie e diritti nella definizione del lavoro dipendente tra common law e civil law,
Giappichelli, 2015, 166 ss.




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employed who are in business for themselves would not be workers and
instead classified as independent contractors(77).
        Being labelled as employee grants access to a more considerable cluster
of rights, such as, for example, rights to complain of unfair dismissal(78), to
claim compensation for redundancy(79), to be given a written statement of
employment terms(80), and collective rights. At the same time, to be included
in the category of ‘workers’ is important to secure certain collective rights
(right to form and be associated with a union and the freedom to participate in
collective actions). Moreover, workers are entitled to certain employment
rights, including rights to the national minimum wage and the national living
wage; statutory paid holidays, statutory rest breaks, including night breaks; and
limitations on consecutive working hours(81); not being discriminated against if
they work part-time; not being subject to a detriment, or offered inducements
in relation to trade union membership; to be accompanied to a disciplinary or
grievance hearing by a fellow worker or a trade union representative; to be
automatically enrolled in a pension scheme. They are also granted protection
against unlawful deductions from wages, against unlawful discrimination, and
for ‘whistleblowing’.
        Finally, the Equality Act 2010 applies to those employed under a
contract of service or apprenticeship as well as those employed under a
contract personally to execute any work or labour.


         2.3 (a) France

      There is no definition of employment contract or employee in the
French Labour Code but, as in the other countries reviewed herein, according
to scholars(82) and case-law(83), a contract of employment is a synallagmatic
exchange of workforce for a wage or a salary. The employee puts their work at


          (77) Sic. M. Freedland and H. Dhorajiwala, UK response to new trade Union strategies for new form of
employment, ELLJ, 2019, 10, 3, 281-290, 285. See Bates van Winkelhof v Clyde & Co LLP [2014] UKSC 32,
[2014] ICR 730.
          (78) ERA 1996, s. 94(1).
          (79) ERA 1996, s. 135.
          (80) ERA 1996, s. 1.
          (81) No more than 48 hours on average per week.
          (82) F. Favennec-Hery, and P. Verkindt, Droit du travail, LGDJ, Manuel, 4th edn, 2014, 615 pp.
          (83) Recently, the Cour de Cassation summarised the employment relationship right, stating that
«The contract of employment is an agreement by which a person undertakes to work on account of
another and under its subordination in exchange for remuneration» (Court de Cassation, 22 July 2014,
Bull civ IV, No 576).




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                              P. DIGENNARO, Subordination or subjection?



the disposal of the employer who pays them. The employee is necessarily an
individual and never a legal body. Moreover, the predominant factor, which
differentiates employees from independent contractors, is still considered to
be the power to issue orders and to check that instructions are respected, and
this because it is «the only constitutive element that is not found in other
contracts»(84).
        Case law has had an essential role in clarifying the boundaries of this
subordination. The French Supreme Court ruled that «a relationship of
subordination is characterised by the performance of duties under the
authority of an employer who has the power to give orders, monitor execution
of assigned duties and punish his subordinates’ breaches of duties»(85). In
other words, the Supreme Court acknowledges the three classical powers to
direct, control and sanction the employee. Even so, this understanding of the
subordination did not prevent the French Courts from going partially beyond
this restricted definition, lending weight to concrete indicators, similar to what
happens in other European countries. Courts normally investigate whether a
worker: must comply with a scheduled working time or can instead arrange it
as they wish; receive remuneration on a regular basis; works on company
premises and the company provide them with all necessary work equipment
and materials; has a portfolio of clients; and whether the company cannot
accomplish the same tasks with its own staff. These elements tend to measure
the existence of controlling mechanisms and integration in the employer’s
organisation, as well as a lack of independence. This is because, on the flip
side, art. L 8221-6-1 of the Labour Code clarifies that a self-employed worker
is presumed to be one whose working conditions are defined exclusively by
themselves or by means of the contract with their client.
        Before the wave of the platform economy, the Cour de Cassation already
qualified, based on these criteria, that a taxi driver was an employee. Although
this worker rented the car from a company, he did not exercise any
organisational choice as to working arrangements or services offered(86).


          (84) F. Kessler, The Concept of ‘Employee’: The Position in France, in Restatement of Labour Law in
Europe: The Concept of Employee, in B. Waas and G. Heerma Van Voss (Ed.), Hart Publishing, 2017.
197–218, 199.
          (85) Cass. Soc. 13 November 1996, n° 94-13187. The first judgement where the concept of
subordination was clarified is Cour de Cassation, 6 luglio 1931, n. DP 1931.1.131, n. P. Pic, in E.
Dockès, cit., p. 5 reported in E. Dockès E., Le salariat des plateformes. À propos de l’arrêt TakeEatEasy,
DO, 2019, n. 846.
          (86) Cour de Cassation, Chambre Sociale, 19.12.2000, MM Labanne v. Soc. Bastille taxi et
autre, n° 98-40572. Recently Uber drivers were also classified as employees, see Cour d’appel de Paris,
10 ja 2019, n° 18/08357.




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                         P. DIGENNARO, Subordination or subjection?



        Recently the same Cour de Cassation issued a judgment(87) on the case of
the TakeEatEasy platform in which the Court infers the existence of an
employment contract empirically, which verifies a company’s unilateral power
to geolocalise and disconnect the workers from the platform. Therefore, all
three powers were not investigated in detail. However, the circumstances of
the case were used to inspect the existence of a relationship where one party
has the power to control and punish the other. In this way, the power to
strongly influence how tasks should be performed remains with one party to
the contract only. In other words, the Cour de Cassation did not investigate in
detail the recurrence of the key criteria of subordination in this case, but
conversely it could not infer, from the facts under scrutiny, the typical
characteristics of a contract for service, i.e. the independence of the contractor
in carrying out their work without receiving permanent instructions and orders
from the company.
        The French system also adopted a technique based on legal
presumptions. Article L.8221-6 of the Code du travail provides a rebuttable
presumption to those individuals who are registered as self-employed service
providers. In particular, those who are registered are presumed not to be
bound to the client through an employment contract for the business activity
covered by the relevant registration. However, if the reality of facts during a
trial demonstrates that the terms of work were typical of an employment
contract, the presumption does not apply.
        On the opposite side, the legislator decided to set specific legislation for
professions where cases of bogus self-employment can often occur in so far as
the atypical nature of the relationship makes it difficult to prove
subordination. Therefore, in these cases, a presumption of a contract of
employment is set, which is very difficult to reverse. That is the case, for
example, for journalists(88), artists(89), models(90) caregivers, employees of
buildings, attendants and nursing assistants(91) and even some managers of
businesses(92). The legislator aimed to extend the legal regime of the
subordinate employees to these workers for a certain and variable extent.
Journalists are, for example, entirely assimilated as employees and even enjoy
some additional advantages, whereas only protections concerning salary,

       (87) Cour de Cassation, Chambre Sociale, 28 novembre 2018, n. 1737.
       (88) Section L. 7112-1 of the Labour Code.
       (89) Section L. 7121-3 of the Labour Code.
       (90) Section L. 7123-3 of the Labour Code.
       (91) Section L 7211-2.
       (92) Section L 7321-3.




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                               P. DIGENNARO, Subordination or subjection?



dismissal and working time have been granted to managers of food franchises.
Moreover, the legislator intervened to qualify ex lege as a labour relation those
occupations whose nature could have been doubtful (this is the case, for
instance, of homeworkers(93) and commercial travellers)(94).
         In brief, the French case stands out for the specific legislative
techniques(95) that are used to directly enlarge the scope of labour law to the
most controversial area of work with the similar aim that case law attempted
to achieve(96). Other regulatory provisions can also be considered in terms of
this ‘expansive’ technique. Indeed, some managers or persons who are at the
head of an enterprise, such as managers of petrol stations, licensees, exclusive
distributors and franchisees, can benefit from the protection of the Labour
Code(97). Economic criteria are considered that include the exclusivity or
quasi-exclusivity of the activity for one company and prices imposed by this
company(98).
         Two more legal devices are worth mentioning because they sit on the
edge of the dividing line between subordination and self-employment and
should theoretically ensure more protection to those workers. First, the portage
salarial scheme (which resembles the case mentioned above of the ‘payroll
companies’ in the Netherlands’ legal framework) was introduced by law in
2008(99) at Art. L 1251-64 of the Labour Code. The law defines the portage
salarial as a unity of contractual relationships organised between an umbrella
company(100), an independent contractor and a customer company. In this


          (93) Sections L. 7411-1 and L. 7412-1 of the Labour Code.
          (94) Section L 7313-1
          (95)A peculiar case involves platform work. On the one hand, by means of law n° 2016-1088
du 8 août 2016, the French legislator added some provisions (art. 7341-1 et seq.) to Part VII of the
Code related to digital platform workers creating a de facto presumption of self-employment that can
be rebutted in a trial in cases where workers prove that their job has the features of subordination.
However, on the other hand, some rights have been extended to platform workers that therefore
benefit, for instance, from insurance for accidents at work and the right to continuing professional
training, which are both responsibilities of the online platform in question. They also have the right to:
constitute and join a trade union; have a union representing their interests; and furthermore, to take
collective action in defence of their interests.
          (96) However, the binary divide between dependent work and self-employment remains
untouched if the option to add an intermediary category has been considered. A report was prepared
for the minister to pave the way for this option. See H. Antonmattei and J. Sciberras, Le travailleur
économiquement             dépendant:               Quelle              protection?,             2008,         in
http://www.ladocumentationfrancaise.fr/var/storage/rapports-publics/084000694.pdf.
          (97) Art. L 7321-1 and following.
          (98) On this point refer to F. Kessler Op. cit., 215.
          (99) Law No 2008-596 of 25 June 2008.
          (100) On the topic of the umbrella company see ICHINO P., A new labour law for platform
workers and umbrella companies, the consequences of technological innovations on labour law systems, in WOL&G, 2,
2018.




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                             P. DIGENNARO, Subordination or subjection?



case, high-skilled workers can perform jobs for several clients, enjoying
administrative services, such as invoicing and recovery of payment, provided
by for the portage salarial company. Persons who work for such a company
should have the competence to autonomously identify potential clients and
negotiate directly with them, as if they were self-employed, but they formally
conclude a contract of employment with the portage salarial company. These
companies «function as employers only on paper, since they do not exercise
power or provide work for these workers»(101). Basically, those workers find
their own customers and receive their remuneration from the portage salarial
company based on the amount that the customer pays to the same company,
deducting social security contributions and some operating costs. Scholars
have criticised this legal instrument because it is self-evident how this scheme
can, in practice, resemble the tripartite scheme of temporary agency work with
the company that hires out labour(102). Theoretically, this instrument aims to
make workers benefitting from employment status and other advantages, such
as affiliation to social security and pension funds, contributions to
unemployment insurance, paid vacation, right to training, management of
legal-administrative and accounting tasks by the company without being
subordinate or economically dependent.
        Second, there is the status a worker acquires when becoming a member
of a Coopératives d’activité et et d’emploi, which also ensures individual support to
project holders to launch a new activity by offering them the chance to
become ‘salaried-entrepreneurs’ (entrepreneurs-salariés). As with the case of the
portage salarial, the project holder can work autonomously, find clients and
deliver their services. However, they are bound to the cooperative by an
employment contract. The cooperative collects clients’ payments and gives
them back to the project owner in the form of a salary once social charges and
management fees have been deducted. Known in the anglophone debate as a
‘Business and Employment Cooperative’ (BEC), these cooperatives can either
be a SCOP (only the workers can vote) or a SCIC (other types of actors are
involved in the governance)(103).
        A few words are needed about a form of individual entrepreneur – the
‘auto-entrepreneur’ – that was introduced in the Law on Economic

         (101) E. Dockés, New trade union strategies for new forms of employment, ELLJ, 2019, 10, 3, 219-228,
222.
           (102) E. Dockés, ibidem., who refers to this happening frequently.
           (103) M. C. Bureau, A. Corsani, The French Business an Employment Cooperative. An autonomy
factory? In (eds) E. Armano, A. Bove and A. Murgia, Mapping Precariousness: Labour Insecurity and Uncertain
Livelihoods. Routledge, 2017.




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                                 P. DIGENNARO, Subordination or subjection?



Modernisation in 2008. «The system established by the law does not create a
specific status, rather a regime for independent workers» pursuing or
beginning a small-scale activity that can also be complementary(104). Once the
worker opts for this regime, they can benefit from simplified tax returns and
social charges, subject to a maximum turnover. The self-entrepreneurs are solo
traders or one-person businesses or professionals and in principle are not
included in the scope of labour law.




          2.3 (b) Italy

       Art. 2094 of the Civil Code contains a definition of a ‘subordinate
employee’ as being an individual «who undertake an obligation to cooperate in
the business in exchange for a remuneration by performing his work manually
or intellectually at the dependence and under the direction of the
entrepreneur»(105).
       On the flip side, a definition also exists in Art 2222 CC of an
‘independent worker’ as a person who is under an obligation to perform a
service or deliver a piece of work for a fee, mainly by means of their labour,
and in the absence of subordination vis-à-vis the principal. Basically, the
system is set in a way that all the workers that are not employees, since
subordination is lacking in their case, are classified as self-employed.
        While the Italian legal framework has always been based on a binary
system, but over time the legislator has decided to extend at least some of the
protections that were originally reserved for employees to workers who are


           (104) N. Levratto, E. Serverin, Become independent! The paradoxical constraints of France’s
‘auto‐entrepreneur’ regime, JSBM, 2014, 53, 1, 284-301, 285.
           (105) Art. 2094 cc «È prestatore di lavoro subordinato chi si obbliga mediante retribuzione a collaborare
nell'impresa, prestando il proprio lavoro intellettuale o manuale alle dipendenze e sotto la direzione dell'imprenditore».
The definition provided for in art. 2094 of the Civil code contains complex legal terminology which
has spurred a large debate in the Italian doctrine that is still ongoing. For this reason, it was translated
in very different ways by different authors. See T. Treu, Italy, ELL – Suppl. 435, 2016, 41; E. Ales, The
Concept of ‘Employee’: The Position in Italy, in Restatement of Labour Law in Europe: The Concept of Employee.
(Ed.) B. Waas and G. Heerma van Voss, Hart Publishing, 2017. 351–376, 351; E. Gramano and G.
Gaudio, New Trade Union strategies for new form of employment: Focus on Italy, ELLJ, 2019, 10, 3, 2019, 240-
253, 241: V. Pietrogiovanni, Redefining the Boundaries of Labour Law: Is ‘Double Alienness’ a Useful Concept
for Classifying Employees in Times of Fractal Work?, in Theorising Labour Law in a Changing World -Towards
Inclusive Labour Law, (Ed.) A. Blackham -M. Kullmann -A. Zbyszewska, Hart, 2019, 55-69, 62.
Scholars offer a different interpretation of the concept of ‘collaboration’. Moreover, the wording «alle
dipendenze e sotto la direzione» can be considered as a hendiadys translating only the power to direct
someone else’s work or, more properly, as expressing two separate concepts.




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                              P. DIGENNARO, Subordination or subjection?



considered self-employed, but in need of some safeguards, as is clarified
below.
        The criteria used to identify the employee have been discussed for
decades by legal commentators and in the Court. In Italy, a typological method
based on the primacy of facts and concrete circumstances that are used as
indirect indicators of subordination has also been developed by the Courts.
According to the prevailing opinion, the core of the subordination still lies in
the employer’s power to issue orders and instructions, to control employees
and sanction them in case of a breach of contract. This is also considered to
be true if those powers are not concretely exercised and remain in a potential
status only.
        On this point, an issue arises whereby a client has the right to ask the
opus to have specific characteristics or to be made according to specific
conditions. This, in turn, means that this kind of request is also capable of
influencing the work performed by a self-employed worker(106). Therefore, in
order to define a difference, the employer’s power is understood as operating
in a more pervasive way, to the point that employees have the duty to comply
with specific procedures and can be requested to observe a specific
operational modality in performing tasks. Even when so characterised, the so-
called hetero-direction is an insufficient criterion to secure a demarking line,
since there are employees who enjoy large discretion on the job because that is
essential to operate in favour of the company(107). This freedom of action does
not, per se, exclude subordination(108).

            (106) Both art. 2224 and 1665 of Civil Code are clear examples of a possibility for the client to
control and supervise the way the job improves.
            (107) This is, for instance, the case for workers higher up in the hierarchy or who are in charge
of managing the company or other workers. It is also, for example, the case for creative industries
where workers are encouraged to innovate. In this case, the Italian case law elaborated the concept of
‘attenuated subordination’. Therefore, according to the Italian Corte di Cassazione in these cases, the
employer's hierarchical power is expressed by means of general programmatic recommendations
(Cass. Civ. 1094/93; 5301/86; 648/86; 5022/85) and therefore without any need for direct and
continuous orders and checks by the employer (Cass. 6086/1991). M. Barbieri, in Della subordinazione
dei ciclofattorini, LLI, 2019, 5, 2, points out that the case-law related to the so-called 'attenuated
subordination' recognises de facto that, in some cases, the subordination essentially consists of a
permanent inclusion in the employer's productive organisation and that this is the inevitable result of a
more correct interpretation of the wording of art. 2094 c.c, which already embeds both hetero-
direction and hetero-organisation. On the contrary, according to M. Pallini, Towards a new notion of
subordination in Italian Labor law?, ILLeJ, 2019, 12, 1, 4, «Italian case-law has remained firmly anchored
in the concept of hetero-direction as a necessary (and sufficient) requirement to classify a relationship
as subordinate, with respect to which the other indicators are merely ‘subsidiary’». Nevertheless, in the
same article, the author suggests that the last wave of reforms marked the decline of the hetero-
direction as the exclusive distinguishing element of 'subordination' in Italian labour law.
            (108) This statement was already expressed by the Italian Corte di Cassazione in the ’1970s
(Cass. civile n. 1885/76 and Cass. Civile n. 1064/75.




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                              P. DIGENNARO, Subordination or subjection?



        For this reason, other elements help in defining a dividing line when
subordination understood merely as hetero-direction is insufficient. For this
purpose, some specific words that are integrated into the definition of
employee ex art. 2094 CC have been used as a gateway for such an operation.
In particular, the words ‘dependence’ and ‘cooperation’. ‘Alle dipendenze’ can be
understood according to different nuances as a stable transfer of work energy
or as availability over time of the employee, or as a permanent inclusion in the
productive organisation of others(109). All of these definitions recall the idea of
permanency or continuity, which should be lacking in the obligations of a self-
employed worker. However, some forms of employment, such as on-call jobs,
have reduced the capability of the criterion of continuity to serve as a
distinctive sign of an employment contract when merely understood in terms
of continuity in the availability and performance of the worker.
        The Italian Corte di Cassazione underlined the critical importance of
continuity in terms of functional dedication of working energy to the
productive result pursued by the entrepreneur when it comes to demonstrating
subordination(110). Therefore, to explain how a labour relationship that does
not entail the worker always performing their tasks (for instance on-call or
part-time jobs) can be deemed to be classified as a contract of employment,
the emphasis should be on the functionality of tasks to reach an external
purpose. The employer indeed decides this purpose, and it can change over
time.
        The obligation to cooperate with the employer’s targets and purpose
can also be understood as a way of ‘translating’ a technical and organisational
element of integration in the employer’s organisation.
        In a way, a link with this point can be found in the idea of ‘double
alienness’, which was first elaborated in legal literature(111), and thereafter
applied in a judgment of the Constitutional Court(112). According to the latter


           (109) On this point and for more references, see O. Razzolini, I confini tra subordinazione,
collaborazioni etero-organizzate e lavoro autonomo coordinato: una rilettura, DRI, 2020, 2, 360-61 and the
doctrine mentioned ivi.
           (110) Cass. Civ. 5024/85; 57/84.
           (111) U. Romagnoli, La prestazione di lavoro nel contratto di società, Giuffré, 1967, 188 ss. and L.
Mengoni, Lezioni sul contratto di lavoro, Celuc, 1971 as well as in La questione della subordinazione in due
trattazioni recenti, in RIDL, 1986, 17.
           (112) Case n. 30/1996 Constitutional Court. This approach to detecting a case of subordinate
work was further applied in a small number of judgments both at the highest level by the national
Corte di Cassazione (Cass. n 19657/2019; Cass. n. 26813/2018; Cass. n. 14660/2017; Cass. n.
820/2007) and by first or second instance Courts (Trib. Lucca 18 gennaio 2018, n. 35; App. Genova
30 settembre 2013; Trib. Siena, 24 luglio 2012, n. 32; Trib. Siena 12 luglio 2012, n. 16; Trib. Siena, 27
aprile 2011, n. 257; Trib. Siena 15 ottobre 2010, n. 119; Trib. Siena 6 settembre 2010, n. 80). V.




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                              P. DIGENNARO, Subordination or subjection?



judgment, two conditions are always bound with one another only in the case
of subordination. One is the alienness of the result, which means that the final
result of the work performed by each of the members of the workforce does
not belong to any of them. The second element is the alienness of the
organisation, which belongs to the employer and to which each employee has
to integrate. The Court also clarified that this condition of ‘double alienness’ is
implied in the circumstance for which the work performance is integrated into
an organisation over which the employee has no control, because the said
organisation is crafted for a purpose over which the employee has no
legitimate interest.
        This leads us to consider the relevance of the hetero-organisation as an
intrinsic characteristic of subordinate employment. Indeed, case law also
underlined that work performances are strictly interlinked with the employer’s
organisation functionality. This means that an employee becomes an integral
‘particle’ of the employer’s technical, economic and administrative
organisation(113). Since hetero-direction was deemed to be a key element, and
once it has been strictly defined as a technical power, the legislator decided not
to make any change in the general definitions of both subordinate
employment and self-employment, rather it used the hetero-organisation as a
tool to expand protection over freelancers that were not completely
independent.
        At first, this happened by ensuring the same judicial protection
provided to subordinate employment applied to a category of self-employed
that was labelled as para-subordinate by the doctrine(114). Art. 409 n. 3 of the
Code of Civil Procedure, recently amended by Art. 15 law 81/2017, contains a
definition of ‘coordinate and continuative work relationship’ indeed. This is
the case of self-employed workers who perform a continuative service, mainly
in person, for a client with whom they have a deal in order to coordinate tasks
with the client’s organisation. The law specifies that this form of cooperation
should not compromise the autonomy of the worker in organising their work.


Pietrogiovanni, op. cit., describes the concept of ‘double alienness’ for an English audience endorsing
its use to reconduct, in particular, the case of Uber drivers under the umbrella of subordination.
          (113) Cf. ex multis, Cass. Civ. 5921/80; 5210/78.
          (114) On the topic of ‘para-subordinate work’, ex multis, refer to G. Santoro Passarelli, Il lavoro
parasubordinato, Franco Angeli, 1979; M. Pedrazzoli, Prestazione d’opera e parasubordinazione, RIDL, 1984,
I, 506; V. Ballestrero, L’ambigua nozione di lavoro parasubordinato, L&D, 1987, 41; S. Leonardi, Il lavoro
coordinato e continuativo: profili giuridici e problematici, RGL, 1999, I, 501; A. Perulli, Lavoro coordinato,
Digesto, VI ed., disc. Priv.-sez. comm., Torino, 2000, L. Nogler., La doppia nozione giuslavoristica di
parasubordinazione, MGL, 2000, 1024; C. Colantoni, A proposito delle collaborazioni coordinate e continuative,
DRI, 2001, 29.




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                           P. DIGENNARO, Subordination or subjection?



In other words, coordination means a necessary connection between
execution (by the worker) and organisation (of the client) that does not imply
directional powers.
         The legal framework underwent several amendments, none of which
were free of faults and interpretative conundrums, and lately art. 2 of the
decree 81/2015 (amended soon after by law 128/2019) introduced the so-
called ‘hetero-organised work relationship’. The law provides that labour law
regulations that apply to subordinate employment also cover those not-
dependent collaborators who perform continuous activities on a prevalently
personal basis which are organised by the employer. An amendment also
added that those dispositions apply to those self-employed workers who
deliver goods when platforms are in use to issue modality of work execution.
         The national Corte di Cassazione already applied(115) the previous
drafting(116) of this new disposition to a case related to Foodora riders. In this
circumstance, the Court interpreted the law stating that it does not create
a tertium genus. Indeed, according to the Court, the law has the effect of
broadening labour law protection (to the extent that excludes only provisions
that are, in the Court’s wording, "ontologically incompatible" with the
concrete case) when three characteristics stand out: work performed
personally, continuity of the service, and hetero-organisation. The judgment
does not solve all the issues that this new provision poses to the current legal
framework, and the issues are twofold. First, the need for delineating
differences between ‘coordinate and continuative work’ and a ‘hetero-
organised work relationship’ emerges. Both, according to the law, are forms of
independent work performed mainly personally and in a continuative way.
Moreover, both imply a form of coordination that, only in the former case,
has to follow a specific agreement between the parties. Furthermore, the
legislation wording seems to imply a different level of coordination between
the client and the collaborator, which is tighter in the case of a ‘hetero-
organised work relationship’, since the law refers to coordination in the
method of execution of work. The second issue is related to the distinction
between subordination and hetero-organised work, since the latter is the form
of self-employment that is closer to dependent work.



         (115) Cass. 1663/2020.
         (116) Before the latest amendment, the law provided that the work should have been
performed exclusively on a personal basis and that the coordination with the external organisation
could involve also timing and place of the performance.




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                              P. DIGENNARO, Subordination or subjection?



        On both sides of this conundrum, the debate is still open among Italian
scholars, and it speaks to the inconsistency and poor drafting of the laws
realised over the years. This is also probably due to different targets that
governments of different political composition had in their mind in drafting
the issued amendments.
        Broadly speaking, the methods that were used in each of these
legislative interventions are highly contestable, as the legislator chose not to
operate on the general category on which the Italian system has been built
(embedded in art. 2094 CC) to clarify its scope and therefore valorising, in this
way, its inherent adaptive nature. Instead the preferred technique has always
been to keep untouched the original concept of subordination embedded in
the code, and conversely to carve out one of the main characteristics of
subordination that was the most useful in order to extend pieces of protection
over the area of self-employment that was more in need of protection. The
result is a fragmented legal framework that lacks systematic consistency and
opens the door to many possible interpretations and dilemma that case law
will have to cope with shortly.


         Section 3. Conclusions

         3.1. Concluding remarks on the study

        The analysis has revealed that the legal systems under scrutiny still
show similarities that are due to the historical evolution of labour law across
the whole of Europe and above all in the area of the civil law family. In
continental Europe, and in the UK(117), the principle of ‘primacy of facts’ is
preferred over the formal acknowledgement of the contract when the
relationship between the parties is assessed.
        The contract of employment is considered to be a synallagmatic
exchange of labour, on the one side, and a salary or wage, on the other. Self-
employment has evolved as a residual category that collects all the workers
that do not match the required criteria to be considered employees.
        The hetero-direction served as the main parameter to which the
investigation of circumstances has been entrusted for a long time, until it lost

          (117) It is worth mentioning that, in the UK, Courts have shown at least for some time a
significant degree of deference to the written contract. Sic G. Davidov, M. Freedland and N.
Countouris, The subject of labour law: Employees and other workers, in Research Handbook in Comparative Labor
Law, (eds) Matthew Finkin & Guy Mundlak, Edward Elgar 2015.




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                              P. DIGENNARO, Subordination or subjection?



the capability to regulate reality. In many countries it remains the most
relevant factor, at least formally. Moreover, legal systems have evolved to
confront economic and social reality but have not always moved along a
homogeneous path. On one hand, a neo-liberal wave extensively insufflated
flexibility, starting in the 1980s. On the other hand, the scope of the
application of labour law was extended by means of a mix of sources(118).
        All the techniques operate on a specific area of self-employment whose
ranks have been enlarged by the enterprise reorganisation of production and
by their financialization, both beginning around 40 years ago.
        A crucial role has been played in all the countries by case law, and it is
easy to understand the reason why. Judges are always confronted with reality
and have to provide responses on a case-by-case basis. Moreover, in many
countries, general principles exist that are in favour of the weaker party of the
contract as well as and constitutional principles that oversee labour and judges
are bound to them. Courts started to elaborate new criteria to enucleate
dependent employment and to attribute a particular case to the general
category of subordination. This often happened by means of a typological
technique or underlining circumstances that could shed light on the existing
link with the employer organisation or the economic dependence of the self-
employed worker. In some cases, once a stable case law was created on a
specific position, the legislators decided to issue reforms that embedded this
jurisprudence in their Codes. This happened, as described above, in Germany
with the new definition in section 611(a) and also in France with Part VII of
the Labour Code, which extended the scope of labour protection to some
workers according to their profession.
        It is clear that in all six countries there has been an attempt to cope
with the issue related to the growing inadequacy of the concept of
subordination in ensuring protection, when understood merely as a power to
direct someone else’s work. This process is tendentially easier in legal systems
that do not have a legislative definition of subordination or that have crafted a
broader one. However, in Slovakia, whose Labour Code embeds the strictest
and demanding definition of ‘dependent work’, an attempt to enlarge the
protection ensured by labour law and therefore restrain the use of bogus self-
employment has been made by loosening the original version of the provision
that defines the scope of the Code itself.

          (118) The analysis conducted in the present study about the techniques used shares
commonalities with the recent analysis in A. Perulli, The legal and jurisprudential evolution of the notion of
employee, ELLJ, 11, 2, 117-130, 2020.




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                               P. DIGENNARO, Subordination or subjection?



        Another interesting technique is that of providing a presumption of the
existence of an employment contract, which in the Netherlands is based on
the length of work performed in favour of the other party, whereas in France
it is based on the idea that some professions are more at risk of being
exploited. Some other countries preferred instead to rely on the concept of
economic dependence, and consequently crafted a hybrid genus between
subordination and self-employment, which is based on criteria that are clearly
thought to measure the capability of the self-employed to remain and operate
on the market by themselves (i.e. lack of clients, percentage of earnings,
continuity of service for the same client).
        This approach creates two inconveniences. First of all, intermediate
categories often simply offer a more accessible opportunity for misclassifying
employees and therefore end up lowering protections for many workers(119).
Secondly, a tertium genus often has the effect of narrowing the area of
subordination, which ensures the maximum standard of protection. This is the
case for the ‘worker’ in the UK(120). Indeed, often this tertium genus is created
starting from some of the criteria that judges also use to frame the area of
subordination, thus the consequence is the watering down of protection for
workers that share characteristics typical of subordinate work.
        The peculiarity of the Italian case lies in the technique that has been
used to operate on the border between self-employment and subordinate
work. The focus is not on factors that are able to measure the economic
dependence of self-employed workers directly in terms of earnings (as
happens in Germany, for example), rather it is on the need for coordination
with the business organisation, which creates a stable form of connection
between the two parties. This parameter becomes the selective element to
which the protection granted by labour law is fastened.




          (119) N. Countouris and V. De Stefano, New trade union strategies for new form of employment,
ETUC, Brussels, 2019, 60.
          (120) According to the analysis of the UK case-law related to riders in V. Pietrogiovanni,
L’importanza di chiamarsi lavoratori, ossia delle Corti del Regno Unito alla (p)rese con il lavoro a chiamata sulle
piattaforme, LLI, 2019, 5, 1, 65, the category of ‘worker’ did not prove to be able to shield those
platform-workers from being exploited. On this point and the issue of the gig economy, cfr. also M.
A. Cherry - A. Aloisi, Dependent contractors in the gig economy: A comparative approach, AML, 2016, vol. 66, p.
635-689.




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                            P. DIGENNARO, Subordination or subjection?



     3.2 The concept of subjection as a more inclusive
conceptualization to redefining subordination and ensuring protection

        Modern private law has been a consequence of the bourgeois
revolution and the proclamation of the formal equality principle. At its starting
point, the recognition of the equality principle aimed to replace a society based
on status with a new one based on the contract(121) which inevitably
postulated that any person should be free to determine their condition on their
own merit, and no longer because of their original social status.
        The contract of employment is the outcome of a long-lasting
elaboration, and it is theoretically based on an agreement between two free
and equal parties, with the employee ceding only their work while, in reality, it
conceals a concrete hierarchical relationship of subjection and power. Labour
law, as well as the welfare state promulgated in all the European countries in
the 20th century, was also finalised to balance the differences in power and
conditions between the counterparts of the employment relationship and
more broadly in favour of the socially disadvantaged. Both can be considered
tools to reach a more substantial form of equality, with the difference being
that labour law is centred on the contract of employment, and it works
through the lens of the contract, whereas the welfare state and social
protection operate on a broader scenario. Both try to align law outlined with
empirical facts(122) but original settings entail path dependency effects that
need to be considered.
        As has been noted(123) prominent labour law scholars, such as
Sinzheimer and Kahn Freund, were aware of the difference between the
structural dependency on wage and salary, due to social conditions and the
specific subordination experienced vis-a-vis a particular employer. It is
important to remember the distinction between these two kinds of
vulnerability, first because of the difference in the tangible way they
materialise, and second because the tools the legal framework should operate
with can be different too.



        (121) The reference is clearly to the influential work of Henry Summer Maine, Ancient Law,
John Murray, 1861.
        (122) In this regard, the development of trade union law can also be seen as a second step
stemming from the striving of the workers who rejected the original denial of a social dimension
among the workforce in the firms.
        (123) Davidov G., Subordination vs Domination: Exploring the Differences, IJCLL&IR, Forthcoming;
Hebrew University of Jerusalem Legal Research Paper No. 17-27, 2017. Available at
SSRN: https://ssrn.com/abstract=2969141




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                         P. DIGENNARO, Subordination or subjection?



        The issue with the concept of economic dependence is that it is
ambiguous on this point. It creates different legal regimes for different
categories of workers (and therefore it modulates rights) based on a situation –
economic dependence – that can be experienced transversely by employees,
self-employed and even small entrepreneurs.
        A different and more recent proposal(124) suggested making a
distinction between individuals genuinely operating a business on their own account
and individuals who are engaged by another to provide labour in order to attach
labour law protection to the latter condition. This perspective relies mainly on
the business-test since the selective criterion would be limited to verifying that
the person should not genuinely operate a business on their own(125). In other
words, whereas traditionally labour law standards were attached to the
employee status, this option would ensure the same protection to all workers
who cannot be 'assimilated' with the legal definition of 'entrepreneur'.
Therefore, following this path, the problem seems to shift from defining the
dividing line between dependent and self-employed work to identifying the
inherent characteristics related to the status of the entrepreneur. Since the
proposal also seems to disconnect the protection from the contract, different
technical tools linking labour standards are in need of being further discussed.
        To contribute to the current debate, this article started from the idea
that the current economic and social scenario needs labour law to align once
again with reality since what has happened in those last 40 years is, in very
simple terms, the successful attempt to use all the possible means to escape
from the protections ensured by the concept of subordination pursued by
those who in the position of using the work of others.
        From this perspective, the same concept of subordination needs to be
deeply revised or, more properly, should be replaced. This is necessary because
the concept is weighed down by its original crafting or its consolidated
interpretation.
        As the analysis has shown, since the power to direct someone else’s
work lost its ability to define all cases of subordination, the case law in many
countries developed a way to enlarge the original selective criteria. In the face
of this challenge, general categories and elements that the case law elaborated
in many European countries are a precious resource that deserves to be better
valued by both legislators and scholars.

        (124) Leveraging the work of Mark Freedland, Countouris & De Stefano, 2019, op. cit.
proposed the concept of ‘personal work relation’.
        (125) See, ivi, 65.




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                              P. DIGENNARO, Subordination or subjection?



        According to the analysis conducted above(126), parameters in use in
different countries can be connected to a small number of broader categories.
They measure the power to direct someone else’s work (hetero-direction), the
degree of integration in the organisation of the putative employer (hetero-
organisation), who bears the business risk or, more broadly, the economic
dependence (business test or economic realities test). It is possible to elaborate
further on those criteria and overcome the limits of the case law technique to
outline a new concept to couples with the labour law protection. I suggest
using the idea of ‘subjection’. As underlined in the introduction, forms of the
subjection of workers to an employer (formally a client) are also pursued by
means of civil and commercial forms of contracts (workers that are formally
self-employed or independent contractors can also be ‘subjected’). The
connection with the purposes and results pursued by the employer/company
is not necessarily ensured by the technical subordination today. The external
market works well as an effective functional substitute once the law allows this
form of exploitation. Longer is this form of connection with the needs of an
external entity (i.e. a single client, for instance); more the workers became
incapable of finding new clients on the market. It is not by chance that
continuity in putting work at the disposal of the employer is one of the factors
commonly used by national courts to identify subordinate work, whereas
countries that acknowledge a tertium genus investigate whether the worker has
one only client or whether most of their revenue comes from just one client.
        Years ago, with a different social and economic scenario, Collins argued
that there are two sources of subordination: one due to the inequality of
market bargaining power; the other due to the bureaucratic structure of the
organisation. Of course, when a company is vertically integrated, the
organisation can be seen as a bureaucratic structure. Today, instead, the
hetero-integration has to be seen in regards to the employer business. The
subjection is integrated into a structure that is built within the external market
and does not pertain simply to the internal market of the company as it would
have been in the past. Understood in this way, the hetero-integration comes to
basically overlap in functional terms with the ‘double alienness’ concept
elaborated by the Italian Constitutional Court(127).



          (126) On this point cf. G. Davidov M. Freedland and N. Kountouris op.cit.; G. Casale (ed).
Op.cit.; N. Countouris, The Changing law of the employment relationship: comparative analyses in the European
context, Ashgate, 57-83.
          (127) See n. 112 above.




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                        P. DIGENNARO, Subordination or subjection?



        Even if we consider the integration test (or hetero-organisation test) as
the most promising criterion among those already in place in the legal orders
under scrutiny in terms of capability to unify different situations – which are
homogeneous in terms of the subjection of the worker – nonetheless the
potential of this criterion can be reduced by some factors. In all the legal
systems under scrutiny, subordination conceived as direction and control still
plays a central and diriment role. Therefore, the potential is lost whenever the
integration test is regarded only as a pale shadow of the main test and so as a
different manner to measure the capability to control and direct the work. The
criterion also loses its potentially unifying character once it is used to define
the outline of intermediate categories of semi-dependent workers that are
nonetheless placed in the autonomous work genus. Moreover, there are two
other related problems. The first is that the borders of the business of a
company or employer are not always clearly evident. For this reason, the idea
of the ‘double alienness’, which can be considered a sort of specular image
from the employee’s side, is an easier criterion to determine the state of
subjection in at least some cases. Of course, the author is well aware that many
Constitutions recognise the relevance of the economic freedoms – this is even
more marked in the EU legal framework – and therefore an extension of the
labour law protections that compromise economic freedoms could be
considered unlawful. In this case, the relevance of other constitutional rights
and principles should oppose this point of view.
        As mentioned, a second test can be the so-called business test. It also
has flaws when used as the only crucial test. The significant use of self-
employment is a signal that points out how the business-risk test can actually
be used to circumvent the protections granted to subordinate employment
when a person is engaged to provide labour integrated into an artefact or
service, which can be potentially refused by the client. For instance, nowadays
a company in need of a new logo or brand identity, or a newspaper looking for
exciting stories to publish on a daily basis, can launch a contest for freelancers
by means of professional ad hoc platforms. In both cases, the freelance holds
all the economic risk if the company or newspaper does not opt to use their
piece of work. The two mentioned examples are not exactly interchangeable
since the former can be regarded as an una tantum job based on a selection of
the best project, while the latter case is a typical example of outsourcing of the
core business of a company, which in the case of enclosed kinds of platforms
entails continuity in the relationship with a cluster of workers in competition
with one another.



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                            P. DIGENNARO, Subordination or subjection?



        If the hetero-direction criterion is still useful in more ‘traditional’ cases
of subordination, the point is that although the business test and the hetero-
integration test were developed to move beyond the strict use of the hetero-
direction test, they never reached the level to be considered as stand-alone
tests. Indeed, they are used mostly in a kind of overall judgment that gives the
Courts a significant level of discretion in evaluating the single concrete case.
        The ABC test developed for the first time in Wisconsin (USA) in 1935
could be seen instead as one possible way of taking advantage of the
parameters that case-law has employed in the USA, but also in Europe, as the
study demonstrates. This test had a rebirth recently because it proved both to
be able to avoid misclassification problems and to include workers as
employees covered by some protective statutes(128). Both Massachusetts(129)
and California embedded this test in a bill (in the latter State, Assembly Bill
No. 5, CHAPTER 296 followed the California Supreme Court decision in
Dynamex)(130(.
        Despite some small differences in the wording of the laws, the three
conditions of the tests are designed in the same way. An individual performing
a service or work is considered to be an employee unless: a) they are free from
direction and control in connection with the performance of the work, both
under the contract for the performance of the work and in fact; (b) the person
performs work that is outside the usual course of the hiring entity’s business;
(c) the person is customarily engaged in an independently established trade,
occupation, or business of the same nature as that involved in the work
performed. Moreover, under this test, it is the responsibility of the employer
to prove that the worker does not fulfil any of the conditions that basically
resemble the three categories discussed above. In this way, each can be
considered a stand-alone condition that, once it occurs, will trigger the
application of labour law. As underlined in the analysis provided, this scheme
is not completely alien to the European legal context, both because of the
case-law of the European countries and because of the European landmark


          (128) In these terms see R. Bales and C. Garden, The Cambridge Handbook of U.S. Labor Law for
the Twenty-First Century, Cambridge University Press, 2019, p. 146. They also clarify how this test is
able: a) to include agents who are either controlled or dependent; b) shift the burden of proof to the
employer; and c) has the added advantage that it simplifies the legal arguments and thus increasing
predictability. In the common law systems, and particularly in the US, the possibility to predict the
outcome in a potential trial is of particular relevance when deciding whether to embark on a judicial
proceeding.
          (129) MASS. GEN. LAW. ANN. Chapter 149, Section 148B(a) 1-3, 2014
          (130) California Supreme Court issued a unanimous decision in Dynamex Operations West,
Inc. v. Superior Court of Los Angeles (April 2018) 4 Cal.5th 903.




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                             P. DIGENNARO, Subordination or subjection?



judgment quoted in section one. Moreover, presumption mechanisms aimed at
reversing the burden of proof on the employer are already in use both in the
Netherlands and in French labour law. Of course, a test like this is an
equivalent, in functional terms, of a different technique that is in use in the
Civil Law area which implies the reconnection of a given concrete case to a
general and abstract rule.
        A final consideration concerns the self-employed workers who are
genuinely independent and not subject to another entity. Their direct voice
should be heard more carefully since they are organised and able to strive for
their positions, as the broader study conducted within the ‘SHARE’ project
observed. Indeed, the absence of a condition of subjection does not mean that
they are not in re ipsa in a condition of vulnerability when certain conditions
are met, as for instance, in cases of incapacity to work due to sickness or
disability. Another issue is related to the pension system, since often self-
employed workers struggle to pay the minimum assessment base and therefore
run a significant risk of receiving an inadequate pension once they retire.
European states have already implemented provisions to partially overcome
some of these welfare-related issues, but there is still room for improvement.


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