10.6092/issn.1561-8048/11777
This commentary examines case C-692/19, an order in response to a request for a preliminary ruling regarding the scope of application of working time protection, handed down by the Court of Justice of the European Union (CJEU) in April 2020.
A courier working for a shipping company filed a claim before a UK employment tribunal demanding reclassification as a ‘worker’ with access to the national legislation implementing Directive 2003/88/EC on working time. The tribunal decided to refer the question to the CJEU. At first glance, some elements of the order may give us the impression that EU working time protection does not cover workers who may find themselves in a situation of (bogus) self-employment, including those in the platform economy. However, this is not the case. The order is based on a specific set of facts that are in line with the CJEU’s established jurisprudential practices on the concept of worker, according to which workers formally classified as self-employed under the contract or the national law are excluded from the scope of the Working Time Directive only if they enjoy genuine, not nominal organisational autonomy.
This analysis is organised as follows. After some introductory remarks, part 2 summarises the arguments of the remitting court and reviews the business model of the delivery company. Part 3 critically discusses some passages of the order. It also examines the notion of ‘worker’ as shaped by the CJEU, highlights strengths and shortcomings of this interpretive attitude, and summarises the proposals to overcome the weaknesses of an under-inclusive and potentially ineffective application of EU law. After appraising the widespread practices in the platform economy and the most recent regulatory developments, part 4 demystifies the issue of organisational flexibility, which is often understood in a unidirectional way, to the advantage of business. This analysis concludes by advocating for a purposive adaption of existing legal categories, beyond the formalistic approach adopted by the referring court in this case.
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Antonio Aloisi
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‘Time Is Running Out’. The Yodel Order and Its Implications  for Platform Work in the EU
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‘Time Is Running Out’. The Yodel Order and Its Implications  for Platform Work in the EU
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‘Time Is Running Out’                                                                Italian Labour Law e-Journal
The Yodel Order and Its Implications for Platform Work in the EU                            Issue 2, Vol. 13 (2020)
Antonio Aloisi                                                                                    ISSN 1561-8048
antonio.aloisi@ie.edu                                              https://doi.org/10.6092/issn.1561-8048/11777




                          ‘Time Is Running Out’
                   The Yodel Order and Its Implications
                       for Platform Work in the EU
                                              Antonio Aloisi

 1. Introduction. 2. The Yodel’s business model and its internal organisation: too good to be
 true? 3. Access denied! Who is a ‘worker’ for the purposes of EU social law? 4. Beyond
 formalism, exposing notional freedom: the way forward.


                                                     Abstract

     This commentary examines case C-692/19, an order in response to a request for a preliminary
     ruling regarding the scope of application of working time protection, handed down by the Court
     of Justice of the European Union (CJEU) in April 2020.
     A courier working for a shipping company filed a claim before a UK employment tribunal
     demanding reclassification as a ‘worker’ with access to the national legislation implementing
     Directive 2003/88/EC on working time. The tribunal decided to refer the question to the CJEU.
     At first glance, some elements of the order may give us the impression that EU working time
     protection does not cover workers who may find themselves in a situation of (bogus) self-
     employment, including those in the platform economy. However, this is not the case. The order
     is based on a specific set of facts that are in line with the CJEU’s established jurisprudential
     practices on the concept of worker, according to which workers formally classified as self-
     employed under the contract or the national law are excluded from the scope of the Working
     Time Directive only if they enjoy genuine, not nominal organisational autonomy.
     This analysis is organised as follows. After some introductory remarks, part 2 summarises the
     arguments of the remitting court and reviews the business model of the delivery company. Part
     3 critically discusses some passages of the order. It also examines the notion of ‘worker’ as
     shaped by the CJEU, highlights strengths and shortcomings of this interpretive attitude, and
     summarises the proposals to overcome the weaknesses of an under-inclusive and potentially
     ineffective application of EU law. After appraising the widespread practices in the platform
     economy and the most recent regulatory developments, part 4 demystifies the issue of
     organisational flexibility, which is often understood in a unidirectional way, to the advantage of
     business. This analysis concludes by advocating for a purposive adaption of existing legal
     categories, beyond the formalistic approach adopted by the referring court in this case.

     Keywords: Working time; Concept of ‘worker’; Platform work; Self-employment; Gig-economy;
     Substitution clauses.



 
  Assistant Professor and Marie Skłodowska-Curie Fellow, IE Law School, IE University, Madrid.
 This article is part of the ‘Boss Ex Machina’ project, which has received funding from the European Union’s
 Horizon 2020 Research and Innovation Programme under the Marie Skłodowska-Curie grant agreement No
 893888. This article has been submitted to a double-blind peer review process.
    Antonio Aloisi                                                                         Italian Labour Law e-Journal
                                                                                                  Issue 2, Vol. 13 (2020)
                                                                                                  Section: Miscellaneous


1. Introduction.

   At the end of April, the Court of Justice of the European Union (CJEU) – with the order
C-692/19 B v Yodel Delivery Network Ltd – ruled on a case, which concerns the legal fate of
platform work in the European Union (EU).1 The news went almost unnoticed, as it was
inevitably overshadowed by the Covid-19 pandemic and its nefarious effects on the labour
market.2 Broadly speaking, the issue revolves around the ‘qualifying dilemma’ of the
professional relationship between a courier and a shipping company. More specifically, the
order examines the personal scope of application of the EU Working Time Directive
(Directive 2003/88).3 Consequently, this order allows commentators to reflect once again on
the adequacy of EU social law and, more importantly, on its ability to accommodate the
profound paradigm shifts that are reshaping contemporary work relationships.
   The purpose of this article is to critically analyse the order issued in response to a question
referred by a British tribunal. The case is worth exploring, as it represents one of the few
judicial stances of the CJEU about a company that adopts the increasingly popular
‘horizontal’4 business model in the logistics and delivery sector5, a scheme that has grown
exponentially in parallel with the rapid emergence of digital platforms. Some rather
ambiguous passages of the order immediately spurred enthusiastic interpretation as if the
CJEU had abruptly given its green light to the liquid model of platform work.6 An in-depth
analysis, however, shows that the Court’s attitude is far from ground-breaking, all the more
so since the order does not endorse the distortions resulting from unaccountable contractual
templates that leverage legal loopholes and overly rigid interpretations of the notion of
‘worker’. In fact, the order clearly restates a consolidated judicial trend, which – if applied

1 CJEU, Case C-692/19, B v Yodel Delivery Network Ltd [2020] ECLI: EU: C: 2020: 288. This commentary largely
reflects and expands on the contents of a note written by Jeremias Adams-Prassl, Antonio Aloisi, Valerio De
Stefano and Nicola Kountouris and published in the Rivista Giuridica del Lavoro e della Previdenza Sociale, 3/2020.
I am grateful to Nastazja Potocka-Sionek and Amina Adwan for providing great discussion and feedback.
2 For a systematic overview of socioeconomic measures adopted to support businesses, workers and families,

see the special issue of the Italian Labour Law e-Journal, Covid-19 and Labour Law. A Global Review. The order has
been cited in two cases in Spain and Italy, taking a consistently pragmatic approach. See Tribunal Supremo, Sala
de lo Social, 23 September 2020, No. 4746/2019; Tribunale di Palermo, 24 November 2020, No. 3570.
3 Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning

certain aspects of the organisation of working time. Due to space constraints, it is not possible to analyse in
detail the directive. See Adnett N. E., Hardy S., Reviewing the Working Time Directive: Rationale, Implementation and
Case Law, in Industrial Relations Journal, vol. 32, 2001, 114; Kenner J., Uber Drivers Are ‘Workers’ – The Expanding
Scope of the ‘Worker’ Concept in the UK’s Gig Economy in Kenner J., Florczak I., Otto M. (eds.), Precarious Work. The
Challenge for Labour Law in Europe, Edward Elgar Publishing, Cheltenham, 2019, 197; Bogg A., The Regulation of
Working Time in Europe, in Bogg A, Costello C., Davies A.C.L. (eds.), Research Handbook on EU Labor Law,
Edward Elgar Publishing, Cheltenham, 2016, 267; Nowak T., The Turbulent Life of the Working Time Directive, in
Maastricht Journal of European and Comparative Law, vol. 25, n. 1, 2018, 118; Ales E., Popma J., Occupational Health
and Safety and Working Time, in T. Jaspers, F. Pennings, S. Peters (eds.), in European Labour Law, Intersentia,
Cambridge, 2019, 431. For a thorough analysis on the contested terrain of working time in the gig economy,
see Inversi C., Exploring the Concept of Regulatory Space: Employment and Working Time Regulation in the Gig-Economy,
PhD dissertation, University of Manchester, 2019.
4 Modern platform operators are described as unparalleled organisations situated between hierarchies and

markets or, even better, as transcending these two orthodox options, which results in the disintegration of the
employing entity and the pulverisation of employment-related obligations. See Adams-Prassl J., Humans as a
Service: The Promise and Perils of Work in the Gig Economy, Oxford University Press, Oxford, 2018.
5 CJEU, Case C-434/15, Asociación Profesional Elite Taxi v Uber Systems Spain [2017] ECLI:EU:C:2017:981.
6 Romera J., Semprún A., Europa niega la relación laboral a los repartidores de plataformas digitales, in ElEconomistas.es,

2020, available at: https://bit.ly/2B0TzsP, accessed 11 Nov. 2020.

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extensively – could ensure access to labour protection for many non-standard workers, who
are unfairly denied basic safeguards because of a too formalistic application of EU law.
   In short, the reference for a preliminary ruling concerns the total or partial resistance of
the European Directive 2003/88 to the adoption of substitution clauses and, to a certain
extent, hyperflexible arrangements organised on an ‘if and when’ basis. Moreover, the order
focuses on the problematic relationship between the initial moment and the execution phase
of the employment relationship, which is continuous yet inconstant.7 These aspects are even
more topical in times of unorthodox contractual templates. That is why the scholarly
community considers this order as a potential model of the CJEU’s position towards several
dominant features that are spreading from the platform economy context to larger segments
of the labour market.
   However, the acknowledgement of legal value of this order should dampen the most
fervent reactions. In fact, it is an order and not a ruling (the CJEU’s reply can take the form
of a reasoned order when it is possible to refer to the previous case law or when the issue is
easy to resolve). One should not overestimate its ability to set a leading precedent.
Furthermore, the ruling has limited relevance, since it is deeply influenced by the underlying
facts as well as by the actual organisational model, which – if ascertained in court – would
represent a rare exception in the ‘on-demand’ landscape. Finally, the legal background of the
United Kingdom’s labour law is characterised by significant peculiarities that cannot be
found in other jurisdictions, not to mention the uncertainty surrounding the process of the
country’s exit from the EU legal order.
   After these introductory remarks, this note is divided into three main sections. Part 2
analyses the arguments of the remitting court, summarises its main contents, and describes
the operational model under investigation. Part 3 critically discusses certain passages of the
order and offers some criticisms of the reasoning, notably as regards its failure to go beyond
pure contractual formalism focused on external elements. This section also reflects on the
notion of ‘worker’ as shaped by the CJEU and reviews the initiatives that have been
developed thus far to overcome the weaknesses of scarcely protective approaches. Part 4
appraises the widespread practices in the diverse segments of platform work and the most
recent regulatory developments in the context of the European Pillar of Social Rights
(EPSR). While this order restates a consolidated CJEU’s posture that could ensure protection
for a large group of non-standard workers, this interpretative attitude may prove to be
scarcely effective in the future. Therefore, this article concludes by advocating for a gradual
adaption of the current legal categories for the purposes of applying EU law.


2. The Yodel’s business model and its internal organisation: too good to be true?

   The claim was filed by a neighbourhood parcel delivery courier (‘B’) that had been
working for the Yodel delivery company since 2017. The service agreement expressly stated
that couriers were hired as ‘self-employed’ persons. After a training session on the operation
of the handheld delivery device, workers made deliveries using their own equipment and

7 Pacella G., La nozione euro-unitaria di lavoratore dipendente alla prova della gig-economy: si pronuncia la Corte di Giustizia
europea, in Labour Law & Issues, vol. 6, n. 1, 2020, 16.

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mobile phones to interact with the delivery company and customers. Couriers had the
possibility of appointing a subcontractor or a substitute for the whole or part of the service
provided while remaining liable for any acts or omissions thereof. The company reserved the
power of vetoing any substitute that did not meet the professional requirements (in terms of
skills and qualification) laid out in the main contract. Furthermore, a non-exclusive clause
allowed delivery couriers to make deliveries on behalf of other companies and third parties,
including Yodel’s direct competitors, without any restriction to parallel engagements.
    More importantly, the workers were free to set a maximum number of orders that they
would complete in a period of time and to refuse delivery requests. Likewise, the company
was not required to use the services of the rider. The agreement provided for a fixed payment
for any given delivery, varying according to the place of delivery. As far as working hours
were concerned, it was the couriers themselves who established the schedule, the
arrangement of deliveries as well as the route to complete the orders within a time window
ranging from 7.30 in the morning to 9 at night, from Monday to Saturday. At a closer look,
these contractual conditions allowed a supposedly wide margin of flexibility, which is
apparently unusual when compared to the most popular model implemented in the last mile
logistics sector.8 Regrettably, though, little is known about the operation of the internal
staffing and scheduling software or the consequences for non-compliance with internal rules.
    Mr. ‘B’ filed a claim to be reclassified as a ‘worker for the purposes of Directive 2003/88’
(Para 14 of the order).
    It should be noted that the ‘worker’ category is an intermediate classification in the United
Kingdom9, introduced in order to improve the protection of those who do not fulfil the
definition of ‘employee’. ‘Workers’ are those working under ‘any other contract … 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’.10 This ‘hybrid’ category
allows access to the minimum pay regime, working time regulations (and, therefore, to the
rules regarding rest and paid leave), anti-discrimination safeguards and protection for
‘whistleblowing’ (i.e. reporting wrongdoing in the workplace).11 The reference for a
preliminary ruling under Article 267 TFEU12 submitted by the Watford Employment

8 Woodcock J., Graham M., The Gig Economy: A Critical Introduction. Polity, Cambridge, 2019.
9 Kenner, nt. (3) (explaining that ‘“[w]orker” is an intermediate category in UK law in between an “employee”,
who is obliged to work for an employer when required in accordance with her/his contract, and has the greatest
level of employment protection, and an independent contractor, who works autonomously’).
10 Section 230(3) (b) Employment Rights Act (ERA) 1996. In UK law, the category includes both persons under

a contract of employment and persons who personally perform any work or service under any other contract,
excluding those carried out in a professional or business capacity. The term ‘worker’ is also used in Section 296
(1)(b) Trade Union and Labour Relations (Consolidation)TULRCA 1992, with a slightly different meaning, for
the purposes of collective labour rights. See Atkinson J., Dhorajiwala H., IWGB v RooFoods: Status, Rights and
Substitution, in Industrial Law Journal, vol. 48, n. 2, 2019, 278. See also Countouris N., The Concept of ‘Worker’ in
European Labour Law: Fragmentation, Autonomy and Scope, in Industrial Law Journal, vol. 47, n. 2, 2018, 219
(discussing the inevitable and undesirable fragmentation deriving from the term worker ‘in terms of clarity and
coherence of national labour law systems and their less than integrated relationship with EU law’).
11 Aloisi A., ‘A Worker is a Worker is a Worker’: Collective Bargaining and Platform Work, the Case of Deliveroo Couriers,

in International Labor Rights Case Law, vol. 5, n. 1, 2019, 36. See also https://www.gov.uk/employment-
status/worker.
12 This system is designed to ensure the uniform interpretation of EU law by all Member States. See CJEU,

Joined cases C-297/88 and C-197/89, Massam Dzodzi v Belgian State [1990] ECLI:EU:C:1990:360, Para 38.

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Tribunal is to be read in light of this peculiar component of UK labour law. However, the
referring court provides a questionable reading of the concept of ‘worker’13, a status which
in its view ‘presupposes that the person concerned undertakes to do or perform personally
any work or services’ and is ‘incompatible with that person’s right to provide services to
several customers simultaneously’ (Para 16).
    Moreover, according to the Court’s description of the main proceeding, the UK judge
goes so far as to argue that ‘the fact that the couriers […] have the possibility of
subcontracting the task entrusted to them precludes […] their classification as a “worker”’
(Para 17). Plus, signing the non-exclusive commitment in favour of the Yodel company is in
itself sufficient to classify the courier as a self-employed independent contractor (Para 18),
an interpretation that is not confirmed in UK legal scholarship and case law.14 In Pimlico
Plumbers, the UK Supreme Court stated that a comparable substitution clause, drafted in a
highly problematic way, could not defeat worker status, in part because the profile of the
substitute was restricted under the relevant contract, thus impairing the right to
substitution.15 Likewise, such a label can be easily defeated by the CJEU, which usually
disregards national classifications and contractual statuses. Among other things, the idea that
Yodel’s couriers can in no way be considered subordinate workers affects many passages of
the reasoning of the CJEU, as it is shown below.
    Based upon these contentious premises, the Watford Employment Tribunal remits
several preliminary questions to the CJEU regarding the compatibility of the provisions of
domestic law with EU law. The tribunal demands whether the EU Working Time Directive
precludes a narrow scope of application at the domestic level based on the notion of
‘personal work’ and whether the use of subcontractors or substitutes could prevent a courier
from falling within the scope of the abovementioned Directive at all or only during the period
of replacement. It also highlights notable specific elements, such as the courier did not
actually use a substitute, he was engaged on a ‘when needed’ basis, and he did not work for
competing companies, although the contract included this possibility. The tribunal also asks
whether these realities could have affected the determination of worker status. Besides,
should Mr. ‘B’ be classified as a ‘worker’, the referring court ‘wishes to obtain guidance as to
the method for calculating the working time’ (par. 19) in light of the discontinuous nature of
the arrangement which also allows multiple concomitant clients. Lastly, the Watford
Employment Tribunal asks for clarification on the calculation of working time when workers
can self-organise the execution of their tasks to a certain extent.
    It is also important to address a pivotal issue affecting the merit of the court decision,
from a procedural standpoint. According to Article 99 of the Rules of Procedure of the Court
of Justice, ‘the reply to a question referred to the Court for a preliminary ruling may be clearly
deduced from existing case law or where the answer to the question referred admits of no

13 Adams-Prassl J., Pimlico Plumbers, Uber Drivers, Cycle Couriers, and Court Translators: Who Is a Worker? in Law
Quarterly Review, vol. 133, n. 3, 2017, 366 ff.
14 On the issue of the ‘mutuality of obligation,’ see Bogg A., Taken for a Ride: Worker in the Gig Economy, in Law

Quarterly Review, n. 135, 2019, 219 ff.; Cabrelli D., Uber e il concetto giuridico di ‘worker’: la prospettiva britannica (nota
a UK Employment Tribunal, Central London, England, United Kingdom, 26 ottobre 2016, n. 2202551/2015, in Diritto
delle relazioni industriali, vol. 27, n. 2, 2017, 575 ff.; Collins H., A Review of The Concept of The Employer by Dr Jeremias
Prassl, November 10, 2015, available at: https://bit.ly/2Lp6PcG, accessed 11 Nov. 2020.
15 Supreme Court of the United Kingdom, Pimlico Plumbers Ltd and another v Smith [2018] UKSC 29, Para 32. See

also Supreme Court of the United Kingdom, Autoclenz v Belcher [2011] UKSC 41.

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reasonable doubt’ (par. 21).16 Therefore, the CJEU preferred to issue an order rather than a
ruling under Article 267 of the Treaty on the Functioning of the European Union (TFEU).
At the outset, there is no illusion that this order is a herald of sensational developments in
EU social law. As stressed above, the CJEU does not go beyond the settled case law, nor
does it claim that platform workers are self-employed persons. At the same time, criticising
this order is essential, as it offers some flawed arguments that are often weaponised at
different levels to justify the erosion of protections for non-standard workers.


3. Access denied! Who is a ‘worker’ for the purposes of EU social law?

    The Court of Justice rephrases the preliminary questions raised by the British judge as
follows: is ‘Directive 2003/88 [to] be interpreted as precluding a person, engaged by his
putative employer under a services agreement stipulating that he is a self-employed
independent contractor, from being classified as a “worker” for the purposes of that
directive, where that person is afforded discretion: to use subcontractors or substitutes to
perform the service which he has undertaken to provide; to accept or not accept the various
tasks offered by his putative employer, or unilaterally set the maximum number of those
tasks; to provide his services to any third party, including direct competitors of the putative
employer, and to fix his own hours of “work” within certain parameters and to tailor his time
to suit his personal convenience rather than solely the interests of the putative employer’
(Para 23)?
    Before offering an overview of the current acquis in terms of the personal scope of
application of EU employment protection legislation, it is worth recalling that the directive
in question remains silent on the meaning of the term ‘worker’.17 Nonetheless, the CJEU has
already ruled on that concept. There is, indeed, considerable settled case law that has led to
the definition of an independent concept of ‘worker’ which is referred to in the order at Para
2618 and is a concept that should not be entirely conflated with the classic notion of
‘employee’ at national level.19




16 Art. 99 of the Consolidated version of the Rules of Procedure of the Court of Justice of 25 September 2012.
CJEU, Joined cases C-428/06 to C-434/06, Unión General de Trabajadores de La Rioja (UGT-Rioja) and Others v
Juntas Generales del Territorio Histórico de Vizcaya and Others [2008] ECLI:EU:C:2008:488, Para 42.
17 Menegatti E., Taking EU Labor Law beyond the Employment Contract: The Role Played by the European Court of Justice,

in European Labour Law Journal, vol. 11, n. 1, 2020, 26; Sagan A., The classification as ‘worker’ under EU law, in
European Labour Law Journal, 2019, vol. 10, n. 4, 353 ff. See also Interpretative Communication on Directive
2003/88/EC of the European Parliament and of the Council concerning certain aspects of the organisation of
working time.
18 CJEU, Case C-147/17, Sindicatul Familia Constanţa and Others v Direcţia Generală de Asistenţă Socială şi Protecţia

Copilului Constanţa [2018] ECLI:EU:C:2018:926; Para 41 states that ‘[f]or the purpose of applying Directive
2003/88, the concept of “worker” may not be interpreted differently according to the law of Member States
but has an autonomous meaning specific to EU law. It must be defined in accordance with objective criteria
which distinguish the employment relationship by reference to the rights and duties of the persons concerned.
The essential feature of an employment relationship, however, is that for a certain period of time a person
performs services for and under the direction of another person in return for which he receives remuneration’.
19 See Countouris N., Uses and Misuses of ‘Mutuality of Obligations’ and the Autonomy of Labour Law, in Bogg A.,

Costello C., Davies ACL, Adams-Prassl J. (eds.), The Autonomy of Labour Law, Hart Publishing, Oxford, 2015.

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    EU social law does not include intermediate categories, such as that of the ‘worker’
referred to in the request for a preliminary ruling.20 Moreover, in light of the paramount
principle of the prevalence of substance over form (the so-called primacy of reality doctrine),
the re-classification completed by the domestic court must be based on objective criteria and
must involve an overall assessment of all the factors and circumstances characterising the
relationship between the parties (Para 28).21 Besides, the Court hastens to confirm that ‘the
essential feature of an employment relationship is that for a certain period of time a person
performs services for and under the direction of another person in return for which he
receives remuneration’.22 Intriguingly, though, in the CJEU’s case law, the test of ‘direction’
may also refer to tenuous elements of control and subordination (namely, subjection to the
employer’s organisational, monitoring and disciplinary prerogatives).23
    Understandably, these are not static indicators to determine an employment relationship,
and over the years the Court has developed a wide-ranging analysis that varies according to
the sector (i.e. ratione materiae).24 In addition, as is well known, even if a person is classified as
a ‘self-employed worker’ under national law, it is not precluded that a ‘person [is] classified
as an employee within the meaning of EU law if his independence is merely notional, thereby



20 The CJEU’s approach is consistent with the binary divide between ‘employment’ (implying the existence of
a hierarchical relationship) and the residual category of self-employment (defined a contrario as the lack of
subordination). As a result, a distinction is made between the workers to whom employment protection is
guaranteed en bloc (a category sometimes identified by a very low threshold for identifying the existence of
control and subordination) and genuinely self-employed workers. See CJEU, Case C-256/01, Debra Allonby v
Accrington & Rossendale College, Education Lecturing Services, trading as Protocol Professional and Secretary of State for
Education and Employment [2004] ECLI:EU:C:2004:18 stating that ‘the authors of the Treaty did not intend that
the term ‘worker’ […] should include independent providers of services who are not in a relationship of
subordination with the person who receives the services’ (Para 68).
21 Case C-147/17, Sindicatul Familia Constanţa and Others v Direcţia Generală de Asistenţă Socială şi Protecţia Copilului

Constanţa [2018] ECLI:EU:C:2018:926, Para 42. In line with the recommendations of ILO R198 – Employment
Relationship Recommendation, 2006 (n. 198). See De Stefano V., L’ambito di applicazione soggettivo degli International
Labour Standards dell’OIL, in Lavoro e Diritto, n. 3, 2019, 429
22 CJEU, Case C-66/85, Deborah Lawrie-Blum v Land Baden-Württemberg [1986] ECLI:EU:C:1986:284, Para 17.

These factors have been developed to define, in an extensive way, the scope of the fundamental freedom of
movement of workers. See Février V., The Concept of ‘Worker’ in the Free Movement of Workers and the Social Policy
Directives: Perspectives from the Case Law of the Court of Justice, in European Labour Law Journal, online first, 2020;
Hatzopoulos V., The Collaborative Economy and EU Law, Hart Publishing, Oxford, 2018, 148 ff; Van Peijpe T.,
EU Limits for the Personal Scope of Employment Law, in European Labour Law Journal, 2012, vol. 3, n. 1, 35 ff.
23 The CJEU remains committed to long-standing case law on the subject. CJEU, Case C-232/09, Dita Danosa

v LKB Līzings SIA [2010] ECLI:EU:C:2010:674. The Court observed that ‘even though Ms Danosa enjoyed a
margin of discretion in the performance of her duties, she had to report on her management to the supervisory
board and to cooperate with that board’ (Para 49). See also CJEU, Case C-47/14, Holterman Ferho Exploitatie BV
and Others v F.L.F. Spies von Büllesheim [2015] ECLI:EU:C:2015:574. See Nogler L., The Concept of ‘Subordination’,
Università degli Studi di Trento, Trento, 2009. Some scholars have gone so far as to equate the criterion defined
by EU case law with the Italian criterion of ‘hetero-organisation’. See Giubboni S., Per una voce sullo status di
lavoratore subordinato nel diritto dell’Unione europea, in Rivista del Diritto della Sicurezza Sociale, n. 2, 2018, 207 ff.; Pallini
M., Towards a New Notion of Subordination in Italian Labour Law?, in Italian Labour Law e-Journal, vol. 12, n. 1, 2019,
1. For a review of recent Italian case law on the subject, see Carinci F., L’art. 2 del d.lgs. n. 81/2015 a un primo
vaglio della Suprema Corte: Cass. 24.1. 2020, n. 1663, in WP C.S.D.L.E. ‘Massimo D’Antona’. IT, no. 414, 2020, 1;
Perulli A., Il diritto del lavoro ‘oltre la subordinazione’: le collaborazioni etero-organizzate e le tutele minime per i riders autonomi,
in WP C.S.D.L.E. ‘Massimo D’Antona’. IT, No. 410, 2020. 1 ff.; Santoro Passarelli G., Sui lavoratori che operano
mediante piattaforme anche digitali, sui riders e il ragionevole equilibrio della Cassazione 1663/2020, in WP C.S.D.L.E.
‘Massimo D’Antona’. IT, No. 411, 2020, 1; Speziale V., Un primo commento «a caldo», in Lavoro Diritti Europa, n. 1,
2020, 2.
24 Giubboni S., Being a Worker in EU Law, in European Labour Law Journal, vol. 9, n. 3, 2018, 1.



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disguising an employment relationship’.25 These passages reproduce the Allonby and FNV
Kunsten judgements.26 National courts are tasked with carrying out this classification
operation. However, the margin of appreciation of the domestic courts is not excessive, as
they are called upon to consider the criteria developed over time by the CJEU. As it has been
stated in relation to a part-time work case, an unlimited discretionary power exercised by the
national courts would ultimately deprive the general principles of EU law and the relevant
regulatory instruments of their effectiveness by ‘jeopardis[ing] the achievement of the
objectives pursued by a directive’.27
   In the Yodel order, the Court reviews specific cases in which a worker – though
contracted as a self-employed person under national law and for tax, administrative or
organisational reasons – acts under the direction of an employer as regards the choice of
time, place and content of his work, without assuming the employer’s business risk but rather
being integrated into the company for the duration of the employment relationship, forming
an economic unit with it.28


25 CJEU, Case C 413/13, FNV Kunsten Informatie en Media v Staat der Nederlanden [2014] ECLI:EU:C:2014:2411,
Para 35, and CJEU, Case C-256/01, Debra Allonby v Accrington & Rossendale College, Education Lecturing Services,
trading as Protocol Professional and Secretary of State for Education and Employment [2004] ECLI:EU:C:2004:18, Para 71.
The CJEU defines ‘false self-employed workers’ as those ‘service providers in a situation comparable to that of
employees’ (FNV Kunsten, Para 31). The same reasoning could be extended to many workers who offer their
services through a digital platform. In this regard, the recent ruling in the Uber case plays a crucial role, although
it does not expressly deal with labour law issues (CJEU, Case C-434/15, Asociación Profesional Elite Taxi v Uber
Systems Spain [2017] ECLI:EU:C:2017:981). The Court has found that Uber operates as a transport service
provider rather than a mere technological intermediary between clients and independent service providers (it is
with this formula that the platform indicates its drivers). The Court stated that ‘Uber exercises decisive influence
over the conditions under which that service is provided by those drivers. On the latter point, it appears, inter
alia, that Uber determines at least the maximum fare by means of the eponymous application, that the company
receives that amount from the client before paying part of it to the non-professional driver of the vehicle, and
that it exercises a certain control over the quality of the vehicles, the drivers and their conduct, which can, in
some circumstances, result in their exclusion’ (Para 39). In such a situation, it can be concluded that Uber
drivers – the reasoning could be extended to those workers whose activity is organised by an online platform
– operate only as ‘an auxiliary within the principal’s undertaking’ and, therefore, to put it in the words of the
FNV Kunsten’s judgement, are not able to ‘determine independently his own conduct on the market, but is
entirely dependent on [their] principal’ (Para 33). They can, therefore, be regarded as ‘integral part of that
employer’s undertaking, so forming an economic unit with that undertaking’ (Para 36). See De Stefano V., Aloisi
A., Fundamental Labour Rights, Platform Work and Human Rights Protection of Non-Standard Workers, in Bellace J. R.,
Ter Haar B. (Eds.), Labour, Business and Human Rights Law, Edward Elgar Publishing, Cheltenham 2019, 359 ff.;
Countouris N., De Stefano V., New Trade Union Strategies for New Forms of Employment, ETUC, Brussels, 2019.
26 Much has been written about the unintended consequences of this ruling as well as on the pitfalls of the ‘false

self-employed’ category. See De Stefano V., Aloisi A., nt. (25); Arena A., La Labor Antitrust Exemption al vaglio
della Corte di Giustizia: quale contrattazione collettiva per i lavoratori c.d. falsi autonomi?, in Diritti Lavori Mercati, vo1. 1,
2016, 144 ff.; Delfino M., Statutory Minimum Wage and Subordination. FNV Kunsten Informatie Judgement and Beyond
in Łaga M, Bellomo S. Gundt N, Miranda Boto J.M. (eds.), Labour Law and Social rights in Europe: the Jurisprudence
of the International Courts, Gdańsk University Press, Gdańsk, 2018, 41 ff.; Grosheide E., ter Haar B., Employee-
Like Worker: Competitive Entrepreneur or Submissive Employee? Reflections on ECJ, C-413/13, FNV Kunsten Informatie
in Łaga M., Bellomo S., Gundt N., Miranda Boto JM (eds.), Labour Law and Social Rights in Europe: the Jurisprudence
of the International Courts, Gdańsk, 2018, 21.
27 CJEU, Case C 393/10, Dermod Patrick O’Brien v Ministry of Justice, formerly Department for Constitutional Affairs

[2012] ECLI:EU:C:2012:110, Paras 34 and 35. A clear representation of this principle can be found in a
judgement on temporary work, CJEU, Case C-216/15, Betriebsrat der Ruhrlandklinik gGmbH v Ruhrlandklinik
gGmbH [2016] ECLI:EU:C:2016:883. It is not a coincidence that this purposive interpretation was developed
in two cases involving vulnerable and non-standard forms of employment.
28 CJEU, Case C 413/13, FNV Kunsten Informatie en Media v Staat der Nederlanden [2014] ECLI:EU:C:2014:2411,

Para 36 and case law cited therein. As stated in Para 33, ‘a service provider can lose his status of an independent
trader, and hence of an undertaking, if he does not determine independently his own conduct on the market,

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    This collection of jurisprudence is used to reinforce the CJEU’s prerogative to ‘surpass’
the domestic classification in case it does not reflect accurately the factual reality of the
performance execution. As the Court clarifies, ‘more leeway in terms of choice of the type
of work and tasks to be executed, of the manner in which that work or those tasks are to be
performed, and of the time and place of work, and more freedom in the recruitment of his
own staff’29 are the ‘features’ typically associated with the self-employment category (Para
32).30 Obviously, the analysis should not focus merely on the nominal existence of such
autonomy but rather on its actual latitude. This is the task entrusted to the referring court,
which is called upon to base its judgement on specific circumstances in a holistic way and in
continuity with the interpretative guidance refined over the years. Consistently, the CJEU
also recommends ascertaining the existence of a possible employment relationship between
B and Yodel.
    Having recalled these well-established jurisprudential practices, the Court rapidly
examines the factual conditions of the case at stake. After all, these rather uncritical passages
reproduce the representation of the facts made by the UK tribunal. Although the remitting
court has acknowledged that the courier B had a wide margin of autonomy vis-à-vis the
putative employer on paper, according to the Court, it is important to determine that this
independence is not merely ‘notional’.31
    At this stage, the Court seems to assess the substance of the case in question. It goes so
far as to validate the domestic court’s reading that the courier had a right to refuse orders
and to independently determine the maximum number of deliveries to be completed within
a said period of time. Similarly, it is ‘certified’ that the absence of an exclusivity clause
guaranteed the worker the possibility of offering services to multiple third parties ‘in parallel
and simultaneously’. Surprisingly, after admitting that the service is provided during specific
time slots allotted, the CJEU states that ‘such a requirement is inherent to the very nature of
that service since compliance with those time slots appears essential in order to ensure the
proper performance of that service’ (Para 42, emphasis added). In light of these objectionable
considerations, the Court prudently acknowledges, on the one hand, that the courier’s
autonomy ‘does not appear to be’ fictitious or nominal and, on the other hand, that he is not
engaged in a subordinate employment relationship with the delivery company (Para 43).
    Nonetheless, this adhesion to the external elements illustrated by the referring court
appears inaccurate, or at least premature. Indeed, as stressed by the CJEU itself, the outcome
of this investigation does not depend on the letter of the contract or the national system for
attributing labour protection, all the more so when the relevant worker did not benefit from
several clauses leaning towards the existence of an independent relationship with the client.
Indeed, a narrow interpretation of the entirely domestic concept of ‘personal work’ risks
excluding several groups of non-standard workers from the scope of application of EU

but is entirely dependent on his principal, because he does not bear any of the financial or commercial risks
arising out of the latter’s activity and operates as an auxiliary within the principal’s undertaking’.
29 CJEU, Case C 270/13, Iraklis Haralambidis v Calogero Casilli [2014] ECLI:EU:C:2014:2185, Para 33.
30 Re the absence of subordination, for example: CJEU, Case C-268/99, Aldona Malgorzata Jany and Others v

Staatssecretaris van Justitie [2001] ECLI:EU:C:2001:616, Paras 34 and 70.
31 Aloisi A., ‘With Great Power Comes Virtual Freedom’. A Review of the First Italian Case Holding That (Food-Delivery)

Platform Workers Are Not Employees, in Comparative Labor Law & Policy Journal, Dispatches, 2018, available at:
https://ssrn.com/abstract=3260669, accessed 11 Nov. 2020. See also Risak M., Dullinger T., The Concept of
‘Worker’ in EU Law: Status Quo and Potential for Change, ETUI Research Paper, no. 140, 2018.

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labour law. On a more positive note, the Court does not underestimate the fact that the term
‘worker’ has acquired an autonomous connotation for the purposes of applying EU law.32
    Finally, the Court concludes that the EU Directive 2003/88 ‘must be interpreted as
precluding a person engaged by his putative employer under a services agreement which
stipulates that he is a self-employed independent contractor from being classified as a
“worker” […], where that person is afforded discretion to use subcontractors or substitutes
[…]; to accept or not accept the various tasks offered by his putative employer, or unilaterally
set the maximum number of those tasks; to provide his services to any third party, […], and
to fix his own hours of “work” within certain parameters and to tailor his time to suit his
personal convenience rather than solely the interests of the putative employer’. This
preclusion, however, is valid only if the autonomy is not fictitious and it is not possible to
ascertain the existence of a relationship of subordination between the parties (Para 45).
    The business model at Yodel is fully in line with many working arrangements in the
platform economy.33 Thus, some elements of the order have been misinterpreted to contend
that gig-economy workers, at least those last-mile couriers providing services within a
business model comparable to that one implemented at Yodel, have been classified as self-
employed workers by the CJEU. This is entirely wrong. The order almost redundantly
confirms that the Working Time Directive does not apply to a worker who is a genuinely
self-employed person. Then, in a circular manner, it refers the critical assessment of the
professional statues to the domestic court, urging to ‘tak[e] account of all the relevant factors
relating to B and to the economic activity which he carries on, […], in the light of the criteria
laid down in the [settled] case-law’ (Para 44). Consequently, the order cannot be interpreted
as a green light for qualifying platform workers as self-employed persons.
    Delving deeper into the substance of the manifold issues triggered or exacerbated by the
rise of platform work would far exceed the scope of this commentary. Nevertheless, there is
a non-negligible weakness in the reasoned order. Indeed, the order appears too focused on
the formal description of the relationship presented by the remitting court to the point of
omitting an investigation into the most problematic elements of the case. There is no
question, for example, regarding the responsibility of the courier who subcontracts his
services or about the ‘implicit’ sanctions in the event that calls are actually rejected or, lastly,
about the practical impossibility of using the subcontracting and non-exclusivity regime in
the context of tasks that do not allow easy multi-tasking.
    Notwithstanding the silence surrounding these decisive aspects, the Court indulges in a
questionable viewpoint. The lack of flexibility in the choice of time slots is ‘inherent’ to the
internal organisation of the company (par. 42). It is not clear to what extent a purely
organisational issue can be read as natural or inevitable, nor is it apparent the reason for this
completely spurious assessment by the Court, proposed after so much insistence on the
principle of the non-availability of the legal regime. Furthermore, it is surprising that the


32 Countouris N., The Concept of ‘Worker’ in European Labour Law: Fragmentation, Autonomy and Scope, in Industrial
Law Journal, vol. 47, n. 2, 2018, 192 ff.; CJEU, Case C-428/09, Union syndicale Solidaires Isère v Premier ministre and
Others [2010] ECLI:EU:C:2010:612, Para 29 and CJEU, Case C-316/13, Gérard Fenoll v Centre d’aide par le travail
“La Jouvene” and Association de parents et d’amis de personnes handicapées mentales (APEI) d’Avignon [2015]
ECLI:EU:C:2015:200, Para 29.
33 Buendia R., The Court of Justice of the European Union’s Order on B v Yodel Delivery Network, Dispatch No. 24 –

United Kingdom, 2020, available at: https://cllpj.law.illinois.edu/dispatches, accessed 11 Nov. 2020.

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Court recalls a standard argument invoked by advocates of the ‘exceptionalism’ allowed to
platform operators. They often claim that their businesses cannot adhere to the rules of
labour law ‘by default’, as this would entail the unsustainability of the model and the loss of
flexibility for workers.34 The argument of ‘inevitability of noncompliance’, which has been
refuted by those operators who have adopted less liquid organisational solutions35, is not
relevant from a legal point of view unless the CJEU wants to yield to a paternalism that
tolerates a competitive advantage gained through the capricious, partial application of labour
and social security regulation.36 To tell the truth, the passage also sounds inconsistent with
the attempt to demonstrate the existence of an ample margin of manoeuvre for the courier.
   Broadening this perspective, many digital platforms and other economic actors include
standard ‘membership agreements’ and boilerplate clauses that provide margins of flexibility
and purport to establish a self-employment relationship that often remains on paper.
Increasingly, these formulas expressly allow the possibility of using substitutes, rejecting calls
or orders, and even freely organising one’s own working time to minimise the legal risk that
the provider is reclassified as an employee. These agreements do not neutralise the principles
of non-availability of the legal regime and primacy of facts. In many EU countries, such as
Spain37, France38, Italy39 and the United Kingdom40, the courts and tribunals disregarded such
clauses whenever they did not reflect the actual unfolding of the work performance or even
when the managerial prerogative of the putative employer was fully exercised during the
contractual relationship, despite the ‘terms and conditions’ to which workers adhere.
   In many cases, the impracticability of the allegedly unfettered substitution clauses emerged
both for the reasons of the feasibility of replacement and because of the restrictions they
introduce, for example, with respect to the conditionality pertaining to the professional
profile of the substitute. More importantly, without transparency, predictability and human
oversight over the opaque algorithms that organise and evaluate work performances, it is not
possible to exclude that workers who choose flexible plans will not end up penalised by
digital systems in the allocation of shifts and orders, as many surveys and reports have
revealed.41 Much more emphasis should be put on mapping and understanding the


34 Sachs B., Enough with the Flexibility Trope, in On Labor, 15 May, 2018, available at: https://onlabor.org/enough-
with-the-flexibility-trope/, accessed 11 Nov. 2020.
35 Josephs J., Just Eat to Stop Using Gig Economy Workers, in BBC news 2020, available at: https://bbc.in/32oWaay,

accessed 11 Nov. 2020.
36 Aloisi A., De Stefano V., Regulation and the Future of Work: The Employment Relationship as an Innovation Facilitator,

in International Labour Review, vol. 159, n. 1, 2020, 47 ff.; Lane M., Regulating Platform Work in the Digital Age, Going
Digital Toolkit Policy Note, No. 1, 2020, available at: https://bit.ly/3l1EXL9, accessed 11 Nov. 2020.
37 Tribunal Supremo, Sala de lo Social, 23 September 2020, No. 4746/2019. Juzgado de lo Social de Madrid, S.

19, 22 July 2019, No. 2952/2019.
38 Cour de Cassation, Chambre sociale, 4 March 2020, No. 374.
39 Tribunale di Palermo, 24 November 2020. No. 3570.
40 Labour Court of Appeal, 19 December 2018, No. A2/2017/3467. Regrettably, the personal work

requirement has also been recently read in a highly formalistic way. See Bogg A., nt. (14).
41 Ivanova M., Bronowicka J., Kocher E., Degner A., The App as a Boss? Control and Autonomy in Application-Based

Management in Arbeit, Grenze, Fluss, Work in Progress interdisziplinärer Arbeitsforschung, No. 2, 2018; Wood A. J.,
Graham M., Lehdonvirta V., Hjorth I., Good Gig, Bad Gig: Autonomy and Algorithmic Control in the Global Gig
Economy in Work, Employment and Society, vol. 33, n. 1, 2019, 56 ff. In Sorry We Missed You (2019), Ken Loach
depicts the inhumane situation of a worker ‘onboarded’ with a parcel delivery company on a zero-hour contract,
still under the thumb of the manager, who dictates routes, shifts and targets. See also CEPS, EFTHEIA, HIVA-
KU Leuven (2019), Study to Gather Evidence on the Working Conditions of Platform Workers, VT/2018/032 Final

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transformation, or even the ‘genetic variation’, of the ways in which employers exercise their
hierarchical powers that now affect a very wide range of workers, spilling beyond the realm
of employment.42 This pressing challenge should be also embraced by domestic and
supranational courts. Worryingly, the scarce knowledge of the perilous system of
organisation, appraisal, incentivisation and punishment impairs the judicial analysis.43
   In a similar vein, we should also be wary of accepting the possibility of barely usable
contractual clauses denying access to basic employment protective legislation. When control
is exercised by means of digital tools, such as algorithms, geolocation devices or rating
systems outsourced to users and clients, neither the existence of substitution clauses nor the
flexibility of the worker in deciding whether and when to provide the service may exclude
the possibility of the latter being reclassified as an employee, precisely because the principal
is able to dictate instructions by means of technological instruments and sophisticated
nudges.44 Standardised contractual terms should not alter the judicial review on the existence
of an employment relationship, where the factual circumstances indicate a situation which is
not in line with the one represented in the agreement, as rightly pointed out by the CJEU.


4. Beyond formalism, exposing notional freedom: the way forward.

   Despite its limitations, contrary to what could be inferred from a cursory reading, the
Yodel order does not stipulate that working time regulation does not apply to workers who
are falsely classified as self-employed, including those who are organised through online
platforms insidiously interfering in the work performance. Nor does the order represent an
unrestrained judicial blessing of improper or fraudulent contractual classification, as it often
occurs in the manifold segments of the ‘omnipotent’ gig-economy. Stepping back, it should
be noted that the moderate interpretive choice of CJEU does not fall outside the path traced
over the years when it comes to defining the personal scope of application of the main
employment-related instruments of the EU law.
   In a moment where a large part of the workforce on a global scale is confronted with the
high instability of labour-related issues, working time has taken centre stage due to the
disruption of the classical coordinates of time, space and action.45 On the one hand, there
has been a contraction in the number of hours worked due to the application of short-time
work schemes to address lockdown’s closures. On the other, an uncontrolled and subtle
expansion in working time is witnessed due to the massive adoption of ‘work from home’

Report (‘The algorithm, ratings and rewards systems […] undermine the formal autonomy of the platform
worker regarding the decision to work or not’).
42 Calo R., Rosenblat A., The Taking Economy: Uber, Information and Power, in Columbia Law Review, vol. 117, 2017,

1623 ff.; Calo R., Rosenblat A., The Taking Economy: Uber, Information and Power, in Columbia Law Review, vol. 117,
2017, 1623 ff.
43 De Stefano V., A More Comprehensive Approach to Platform-Work Litigation, Regulating for Globalization, 2018a,

available at: https://bit.ly/2zHE74c, accessed 11 Nov. 2020.; Cefaliello A., Health and Safety and AI, presented
at the ‘Rethinking Labour Law in the Digitalisation Era’ conference, Brussels, 15-16 October, 2020, available at:
https://bit.ly/328cLQ4, accessed 11 Nov. 2020.
44 Woodcock J., The Algorithmic Panopticon at Deliveroo: Measurement, Precarity, and the Illusion of Control, in Ephemera,

Online first, 2020, accessed 11 Nov. 2020; De Stefano V., nt. (43).
45 For an in-depth review of the issues, see Bavaro V., Un itinerario sui tempi del lavoro, in Rivista giuridica del lavoro e

della previdenza sociale, vol. 60, n. 2, 2009, 213 ff.

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patterns that have led to the acceleration of the process of blurring the boundaries between
the private and professional spheres.46 These arrangements are seldom ‘agile’, given the
restrictions imposed, the non-voluntary nature of the emergency arrangements and the
difficulty in keeping a sustainable work-life balance, especially for those with additional caring
duties.
    For this reason, the relevance of the legal framework regulating working time has returned
to the forefront and will certainly remain so over the next months, as it will be necessary to
experiment with organisational formulas capable of balancing the protection of public health
and safety, flexible arrangements, decent and proportionate wages and business continuity.
Therefore, it is urgent to regain confidence with working time regulation, especially at a time
when the mirage of organisational elasticity has revealed its unidirectional nature, to the
advantage only of businesses, both in traditional sectors and in the most innovative segments
of the labour market.47 Bedazzled by the official technology narratives, few people have
realised that the promise of enhanced productivity and improved work quality, afforded by
‘elastic’ models, remains a prophecy that unfortunately takes time to come true. This is also
due to the absence of a corporate culture that overcomes ‘presenteeism’ by adopting schemes
that reward trust, responsibility and results. At the same time, new technologies, which were
expected to create an emancipating new reality, are often used to deepen hierarchy and
control, despite the efforts to limit the unrestrained adoption of automated decision-making
processes.48 It will be up to the rule makers and the social partners to open a bargaining
season on these practices.49
    The challenges posed by platform work far outweigh the small but still growing size of
the gig-economy sector. On the one hand, the seductive model combining ‘organised
irresponsibility’50 and precarious employment could be replicated in other areas of the labour
market.51 On the other hand, the state of exception granted to self-proclaimed disruptors
risks morphing into a blank proxy for self-regulation (and deregulation) processes that
disavow the existing system, nullifying any attempt to offer adaptable solutions that
accommodate the needs of a constantly changing world of work. Given the broad scope of
the questions referred, while not renouncing the strengths of the interpretative arsenal
developed in the last decades, the CJEU seems to adopt a ‘wait and see’ approach,
relinquishing the role as a key player in the debate on the alleged ineffectiveness of the

46 These issues have been further exacerbated by the Covid-19 outbreak. See also Ales E., Subordination at Risk
(of ‘Autonomisation’): Evidences and Solutions from Three European Countries, in Italian Labour Law e-Journal, vol. 12, n.
1, 2019, 65 ff; Szpejna M., Boudalaoui-Buresi Z., The Scope of EU Labour Law, Publication for the Committee
on Employment and Social Affairs, Policy Department for Economic, Scientific and Quality of Life Policies,
European Parliament, Luxembourg, 2020.
47 De Stefano V., Platform Work and Labour Protection. Flexibility Is Not Enough, Regulating for Globalization, 2018b,

available at: https://bit.ly/2TdoBDV, accessed 11 Nov. 2020.
48 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection

of natural persons with regard to the processing of personal data and on the free movement of such data.
49 Armaroli I., Dagnino E., A Seat at the Table: Negotiating Data Processing in the Workplace in Comparative Labour

Law & Policy Journal. Special Issue: Automation, Artificial Intelligence & Labour Law, vol. 41, n. 1, 2019, 173 ff.
50 Aloisi A., Hierarchies without Firms? Vertical Disintegration, Personal Outsourcing and the Nature of the Platform, in

Quaderni Giorgio Rota, 2020, available at: https://ssrn.com/abstract=3124389, accessed 11 Nov. 2020; Collins
H., nt. (14).
51 Stone K.V.W., Flexibilization, Globalization and Privatization: The Three Challenges to Labor Rights in Our Time, in

Osgoode Hall Law Journal, vol. 44, n. 1, 2005, 77 ff.; Dubal V.B., The Time Politics of Home-Based Digital Piecework,
in The Future of Work in the Age of Automation and AI c4ejournal, 2020, accessed 11 Nov. 2020.

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interpretation of existing categories.52 In the previous paragraphs, an attempt was made to
justify this stance, indicating the lack of innovation in the questions referred to and the
peculiarities of the case at stake (or even their rather formalistic presentation thereof).
    This cautious attitude has, however, found an unintentional ally in the EU institutions. In
2019, they adopted a Directive on transparent and predictable working conditions53, which
has reached a seemingly modest compromise as regards its personal scope of application.
Some protective provisions indeed have a social reference point in second-generation forms
of atypical employment54, including the limitation to the use and duration of casual and on-
call contracts, the prohibition of unnecessary exclusivity clauses, the possible rebuttable
presumption of the existence of an employment relationship with a guaranteed number of
paid hours based on the hours worked in a previous reference period or other equivalent
measures against abusive practices (Article 11).55 Moreover, in the case of work patterns that
are ‘entirely or mostly unpredictable’, the directive provides that workers must be informed
about the organisation and the number of guaranteed paid hours. Workers have a right to
information on how they will be paid for the additional hours worked, when exactly their
assignments will start and within what timeframe a call can be cancelled (Art. 4). These
provisions design an availability timeframe outside of which workers can refuse to show up
without adverse consequences and inside which they must be compensated if previously
agreed slots are revoked. Although this regulatory tool was aimed at providing an answer to
the unresolved issues of non-standard, discontinuous, precarious and vulnerable work, the
results are not entirely convincing.
    The scope of the Directive will undoubtedly be a source of conflict, since its provisions
‘apply to every worker in the Union who has an employment contract or employment
relationship as defined by the law, collective agreements or practice in force in each Member
State with consideration to the case-law of the Court of Justice’ (Article 1 ).56 This nuanced
formula, which reflects the difficulty of reaching consensus around a more autonomous, pan-
European and inclusive definition of ‘worker’, almost basically combines respect for the
autonomy of the Member States in defining the concept of worker with the expansive force
of the case law of the CJEU.57 This opportunity for constructive dialogue between the courts
should not be wasted in view of the laudable purposes of the new directive. The most

52 Šadl U., Does the Court of Justice Make Law in Small Steps? (Circumstantial) Evidence from the Free Movement of Persons
Jurisprudence, paper presented at the EUI Faculty Seminar, 2020.
53 Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 2019 on transparent

and predictable working conditions in the European Union.
54 Lo Faro A., Core and Contingent Work: A Theoretical Framework in Ales E., Deinert O., Kenner J. (eds.), Core and

Contingent Work in the European Union: A Comparative Analysis, Hart Publishing, Oxford, 2017, 7 ff.
55 Bednarowicz B., Delivering on the European Pillar of Social Rights: The New Directive on Transparent and Predictable

Working Conditions in the European Union, in Industrial Law Journal, n. 48, 2019, 604 ff.
56 Recital 8 states that ‘provided that they fulfil those criteria [for determining the status of a worker], domestic

workers, on-demand workers, intermittent workers, voucher based-workers, platform workers, trainees and
apprentices could fall within the scope of this Directive’, while ‘[g]enuinely self-employed persons should not
fall within the scope of this Directive since they do not fulfil those criteria’.
57 The same formula is used in the Directive (EU) 2019/1158 of the European Parliament and of the Council

of 20 June 2019 on work-life balance for parents and carers. See Chieregato E., A Work-Life Balance for All:
Assessing the Inclusiveness of EU Directive 2019/1158, in International Journal of Comparative Labour Law and Industrial
Relations, vol. 36, n. 1, 2020, 59 ff. See also Proposal for a Directive of the European Parliament and of the
Council on adequate minimum wages in the European Union COM/2020/682 final.


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vulnerable workers represent the ideal target group that could most benefit from the new
provisions offering accountability and programmability. To claim otherwise is to do the
EPSR (and the workers who benefit from its protection) a disservice.58
    Many advanced business models often stand out for their contractual creativity aimed at
sidestepping employment and social security rules. At a closer look, the qualification of
worker is often denied not so much because of the insufficient flexibility of the category,
which in fact allows for the full exercise of the employers’ prerogative and thus creates an
elastic system, but rather for the desire to avoid the contribution and tax costs deriving from
this classification.59 In the long run, this downward spiral threatens to disrupt the social pact
underlying our societies. In fact, over the years, we have witnessed the spread of deceitful,
rigid, and pervasive forms of control that are not matched by the activation of
counterweights defined by the legislator or collectively negotiated by social partners. It is
imperative to contain this decoupling of hierarchical powers and protective obligation by
legislative and interpretative means. In an incremental fashion60, the courts are called upon
to undertake an in-depth study of the contours and implications of organisational systems
enabled by algorithms and other technological devices. This ‘deeply political exercise’ can
only be done by going beyond pure contractual formalism, which is focused on external and
deceptive elements, to analyse new templates in their complexity.61
    Undeniably, the delimitation of the areas of self-employment and subordination risks
becoming increasingly complex and elusive due to a natural process of the hybridisation of
the performances. (Employees are currently offered very flexible organisational solutions,
while the self-employed ones remain trapped in forms of organisational or economic
dependency that betrays the spirit of this model).62 However, the employee status still
represents the sole gateway to the protective ambit of labour law. Although many voices
have been raised calling for the dissolution of the binary distinction between employment
and self-employment, this system is anything but exclusive.63 To avoid conflicts concerning
the specific connotations of the categories, a broader construction of the subjective scope of
protection could be developed64, without dissolving the very notion of employment.

58 European Pillar of Social Rights, Chapter II: Fair working conditions, Fifth Principle (‘Secure and adaptable
employment’). See Rainone S., The European Pillar of Social Rights – Tell Me Where You Come from and I Will Tell You
Who You Are, in Perspectives on the European Pillar of Social Rights, Zbornik Znanstvenih Razprav, LETNIK LXXX,
2020.
59 Aloisi A., De Stefano V., nt. (36).
60 Lenaerts K., EU citizenship and the European Court of Justice’s ‘stone-by-stone’ approach, in International Comparative

Jurisprudence, vol. 1., n. 1, 2015, 1 ff.
61 Countouris N., De Stefano V., nt. (25), 19. For a comprehensive overview, see Tomassetti J., Algorithmic

Management, Employment, and the Self in Gig Work, in Das Acevedo D. (eds.), Beyond the Algorithm: Qualitative Insights
for Gig Work Regulation, Cambridge University Press, Cambridge, 2020, 123 ff.
62 Del Punta R., ‘Un diritto per il lavoro 4.0’, in Cipriani A., Gramolati A., Mari G. (Eds.), Il lavoro 4.0, Firenze

University Press, Firenze, 2018, 225 ff. It is also indisputable that the multifactor analysis devised by the national
courts suffer from many weaknesses linked to unpredictability and fact dependency.
63 Davidov G., Setting Labour Law’s Coverage: Between Universalism and Selectivity, in Oxford Journal of Legal Studies,

vol. 34, n. 3, 2014, 543 ff.; Fudge J., Fragmenting Work and Fragmenting Organizations: The Contract of Employment
and the Scope of Labour Regulation, in Osgoode Hall Law Journal, vol. 44, n. 4, 2006, 609 ff. Moreover, in several
countries, protections have been extended to those workers who are genuinely self-employed. See Cherry M.A.,
Aloisi A., ‘Dependent Contractors’ in the Gig Economy – A Comparative Approach, in American University Law Review,
vol. 66, n. 3, 2017, 635 ff.
64 Countouris N., De Stefano V., nt. (25), 65 (advocating for a new model of labour law as applicable to ‘any

person that is engaged by another to provide labour, unless that person is genuinely operating a business on

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    A modern and cohesive approach must lead to the definition of an evolved concept of
‘worker’ for the purposes of applying the social acquis65 by ‘strengthening and clarifying
(without necessarily expanding) the EU “worker” definition’.66 There are several available
tools, whether it is a directive amending the personal scope of EU secondary legislation or a
more pragmatic role of the CJEU aimed at shaping a notion that can be further adapted
interpretively in judicial fora. The EU institutions are expected to take up this challenge to
avoid having an increasing number of workers unreasonably excluded from the scope of
labour law protections. This should also serve to address the resurgence of resentment that
risks jeopardising the process of harmonisation.67
    In conclusion, arguing that the mere insertion of substitution clauses and flexible shifts is
sufficient to prove the autonomous nature of the professional relationship, including when
such contractual terms are clearly incongruent with the reality of the performance execution,
would misrepresent the meaning of the order and, even more seriously, contradict the long-
lasting case law of the CJEU on bogus self-employment. While the Court’s order is perfectly
consistent with a line of interpretation based on the ‘binary divide’, regrettably, it does not
go so far as to provide useful elements to update the classical analysis, which also many
national courts are revising in the face of the emergence of algorithmic management and
real-time surveillance. New forms of work may not meet the rigid national requirements or
formalities defined by law or case law, as they purport to grant flexibility and agency. Hence,
the Court must strive to adopt an expansive reading of the existing legal categories to
safeguard social rights and ensure a level playing field for all economic operators.
    It is also hoped that the EU institutions will revamp the social agenda for all non-standard
workers, whose ‘essentiality’ is now before everyone’s eyes, especially amid the Covid-19
crisis.68




her or his own account’). See also Freedland M., Countouris N., Some Reflections on the 'Personal Scope' of Collective
Labor Law, in Industrial Law Journal, vol. 46, n. 1, 2017, 52 ff.
65 Garben S., Kilpatrick C., Muir E., Towards a European Pillar of Social Rights: Upgrading the EU Social Acquis, in

College of Europe Policy Briefs, n. 1, 2017.; Menegatti E., The Evolving Concept of ‘Worker’ in EU law, in Italian Labour
Law e-Journal, vol. 12, n. 1, 2019, 71 ff.; Potocka-Sionek N., Aloisi A., ‘Festina Lente’: the ILO and EU Agendas on
the Digital Transformation of Work, in International Journal of Comparative Labour Law and Industrial Relations, vol. 37,
n. 1, 2021, available at SSRN: https://ssrn.com/abstract=3694754, accessed 11 Nov. 2020.
66 Countouris N., De Stefano V., nt. (25), 16.
67 Sciarra S., Solidarity and Conflict, Cambridge University Press, Cambridge, 2018.
68 Mangan D., Gramano E., Kullmann M., An unprecedented social solidarity stress test, in European Labour Law Journal,

vol. 11, n. 3, 2020, 247 ff.; Benner C., Mason S., Carré F., Tilly C., Delivering Insecurity: E-commerce and the Future
of Work in Food Retail, UC Berkeley Labor Center and Working Partnerships USA, Berkeley, 2020.

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                                               Bibliography


Adams-Prassl J., Humans as a Service: The Promise and Perils of Work in the Gig Economy, Oxford
University Press, Oxford, 2018;
Adams-Prassl J., Pimlico Plumbers, Uber Drivers, Cycle Couriers, and Court Translators: Who Is a
Worker? in Law Quarterly Review, vol. 133, n. 3, 2017, 366;
Adnett N. E., Hardy S., Reviewing the Working Time Directive: Rationale, Implementation and Case
Law, in Industrial Relations Journal, vol. 32, 2001, 114;
Ales E., Popma J., Occupational Health and Safety and Working Time, in T. Jaspers, F. Pennings,
S. Peters (eds.), in European Labour Law, Intersentia, Cambridge, 2019, 431;
Ales E., Subordination at Risk (of ‘Autonomisation’): Evidences and Solutions from Three European
Countries, in Italian Labour Law e-Journal, vol. 12, n. 1, 2019, 65;
Aloisi A., ‘A Worker is a Worker is a Worker’: Collective Bargaining and Platform Work, the Case of
Deliveroo Couriers, in International Labor Rights Case Law, vol. 5, n. 1, 2019, 36;
Aloisi A., ‘With Great Power Comes Virtual Freedom’. A Review of the First Italian Case Holding That
(Food-Delivery) Platform Workers Are Not Employees, in Comparative Labor Law & Policy Journal,
Dispatches, 2018, available at: https://ssrn.com/abstract=3260669, accessed 11 Nov. 2020;
Aloisi A., Hierarchies without Firms? Vertical Disintegration, Personal Outsourcing and the Nature of
the Platform, in Quaderni Giorgio Rota, 2020, available at: https://ssrn.com/abstract=3124389,
accessed 11 Nov. 2020;
Aloisi A., De Stefano V., Regulation and the Future of Work: The Employment Relationship as an
Innovation Facilitator, in International Labour Review, vol. 159, n. 1, 2020, 47;
Arena A., La Labor Antitrust Exemption al vaglio della Corte di Giustizia: quale contrattazione
collettiva per i lavoratori c.d. falsi autonomi?, in Diritti Lavori Mercati, vo1. 1, 2016, 144;
Armaroli I., Dagnino E., A Seat at the Table: Negotiating Data Processing in the Workplace in
Comparative Labour Law & Policy Journal. Special Issue: Automation, Artificial Intelligence & Labour
Law, vol. 41, n. 1, 2019, 173;
Atkinson J., Dhorajiwala H., IWGB v RooFoods: Status, Rights and Substitution, in Industrial Law
Journal, vol. 48, n. 2, 2019, 278;
Bavaro V., Un itinerario sui tempi del lavoro, in Rivista giuridica del lavoro e della previdenza sociale,
vol. 60, n. 2, 2009, 213;
Bednarowicz B., Delivering on the European Pillar of Social Rights: The New Directive on Transparent
and Predictable Working Conditions in the European Union, in Industrial Law Journal, n. 48, 2019,
604;
Benner C., Mason S., Carré F., Tilly C., Delivering Insecurity: E-commerce and the Future of Work
in Food Retail, UC Berkeley Labor Center and Working Partnerships USA, Berkeley, 2020;
Bogg A., Taken for a Ride: Worker in the Gig Economy, in Law Quarterly Review, n. 135, 2019, 219;
Bogg A., The Regulation of Working Time in Europe, in Bogg A, Costello C., Davies A.C.L. (eds.),
Research Handbook on EU Labor Law, Edward Elgar Publishing Ltd, Cheltenham, 2016, 267;
Buendia R., The Court of Justice of the European Union’s Order on B v Yodel Delivery Network,
Dispatch           No.         24        –      United        Kingdom,         2020,      available    at:
https://cllpj.law.illinois.edu/dispatches, accessed 11 Nov. 2020;



https://doi.org/10.6092/issn.1561-8048/11777                                                                   83
 Antonio Aloisi                                                            Italian Labour Law e-Journal
                                                                                  Issue 2, Vol. 13 (2020)
                                                                                  Section: Miscellaneous


Cabrelli D., Uber e il concetto giuridico di ‘worker’: la prospettiva britannica (nota a UK Employment
Tribunal, Central London, England, United Kingdom, 26 ottobre 2016, n. 2202551/2015, in Diritto
delle relazioni industriali, vol. 27, n. 2, 2017, 575;
Calo R., Rosenblat A., The Taking Economy: Uber, Information and Power, in Columbia Law Review,
vol. 117, 2017, 1623;
Carinci F., L’art. 2 del d.lgs. n. 81/2015 a un primo vaglio della Suprema Corte: Cass. 24.1. 2020, n.
1663, in WP C.S.D.L.E. ‘Massimo D’Antona’. IT, no. 414, 2020, 1;
Cefaliello A., Health and Safety and AI, presented at the ‘Rethinking Labour Law in the
Digitalisation Era’ conference, Brussels, 15-16 October 2020, 2020, available at:
https://bit.ly/328cLQ4, accessed 11 Nov. 2020;
CEPS, EFTHEIA, HIVA-KU Leuven, Study to Gather Evidence on the Working Conditions of
Platform Workers, VT/2018/032 Final Report, 2019;
Cherry M.A., Aloisi A., ‘Dependent Contractors’ in the Gig Economy – A Comparative Approach, in
American University Law Review, vol. 66, n. 3, 2017, 635;
Chieregato E., A Work-Life Balance for All: Assessing the Inclusiveness of EU Directive 2019/1158,
in International Journal of Comparative Labour Law and Industrial Relations, vol. 36, n. 1, 2020, 59;
Collins H., A Review of The Concept of The Employer by Dr Jeremias Prassl, November 10, 2015,
available at: https://bit.ly/2Lp6PcG, accessed 11 Nov. 2020;
Countouris N., The Concept of ‘Worker’ in European Labour Law: Fragmentation, Autonomy and
Scope, in Industrial Law Journal, vol. 47, n. 2, 2018, 192;
Countouris N., Uses and Misuses of ‘Mutuality of Obligations’ and the Autonomy of Labour Law, in
Bogg A., Costello C., Davies ACL, Adams-Prassl J. (eds.), The Autonomy of Labour Law, Hart
Publishing, Oxford, 2015;
Countouris N., De Stefano V., New Trade Union Strategies for New Forms of Employment, ETUC,
Brussels, 2019;
Davidov G., Setting Labour Law’s Coverage: Between Universalism and Selectivity, in Oxford Journal
of Legal Studies, vol. 34, n. 3, 2014, 543;
De Stefano V., ‘Master and Servers’: Collective Labour Rights and Private Government in the
Contemporary World of Work, in International Journal of Comparative Labour Law and Industrial
Relations, vol. 36, no. 4, 2020, available at SSRN: https://ssrn.com/abstract=3675082,
accessed 11 Nov. 2020;
De Stefano V., A More Comprehensive Approach to Platform-Work Litigation, Regulating for
Globalization, 2018a, available at: https://bit.ly/2zHE74c, accessed 11 Nov. 2020;
De Stefano V., L’ambito di applicazione soggettivo degli International Labour Standards dell’OIL,
in Lavoro e Diritto, n. 3, 2019, 429;
De Stefano V., Platform Work and Labour Protection. Flexibility Is Not Enough, Regulating for
Globalization, 2018b, available at: https://bit.ly/2TdoBDV, accessed 11 Nov. 2020;
De Stefano V., Aloisi A., Fundamental Labour Rights, Platform Work and Human Rights Protection
of Non-Standard Workers, in Bellace J. R., Ter Haar B. (Eds.), Labour, Business and Human Rights
Law, Edward Elgar Publishing, Cheltenham 2019, 359;
Del Punta R., ‘Un diritto per il lavoro 4.0’, in Cipriani A., Gramolati A., Mari G. (Eds.), Il lavoro
4.0, Firenze University Press, Firenze, 2018, 225;
Delfino M., Statutory Minimum Wage and Subordination. FNV Kunsten Informatie Judgement and
Beyond in Łaga M, Bellomo S. Gundt N, Miranda Boto J.M. (eds.), Labour Law and Social rights


https://doi.org/10.6092/issn.1561-8048/11777                                                                84
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                                                                                       Issue 2, Vol. 13 (2020)
                                                                                       Section: Miscellaneous


in Europe: the Jurisprudence of the International Courts, Gdańsk University Press, Gdańsk, 2018,
41;
Dubal V.B., The Time Politics of Home-Based Digital Piecework, in The Future of Work in the Age
of Automation and AI c4ejournal, 2020, accessed 11 Nov. 2020;
Février V., The Concept of ‘Worker’ in the Free Movement of Workers and the Social Policy Directives:
Perspectives from the Case Law of the Court of Justice, in European Labour Law Journal, online first,
2020;
Freedland M., Countouris N., Some Reflections on the 'Personal Scope' of Collective Labor Law, in
Industrial Law Journal, vol. 46, n. 1, 2017, 52;
Fudge J., Fragmenting Work and Fragmenting Organizations: The Contract of Employment and the Scope
of Labour Regulation, in Osgoode Hall Law Journal, vol. 44, n. 4, 2006, 609 ff.
Garben S., Kilpatrick C., Muir E., Towards a European Pillar of Social Rights: Upgrading the EU
Social Acquis, in College of Europe Policy Briefs, n. 1, 2017;
Giubboni S., Being a Worker in EU Law, in European Labour Law Journal, vol. 9, n. 3, 2018a, 1;
Giubboni S., Per una voce sullo status di lavoratore subordinato nel diritto dell’Unione europea, in Rivista
del Diritto della Sicurezza Sociale, n. 2, 2018, 207;
Grosheide E., ter Haar B., Employee-Like Worker: Competitive Entrepreneur or Submissive Employee?
Reflections on ECJ, C-413/13, FNV Kunsten Informatie in Łaga M., Bellomo S., Gundt N.,
Miranda Boto JM (eds.), Labour Law and Social Rights in Europe: the Jurisprudence of the International
Courts, Gdańsk, 2018, 21;
Hatzopoulos V., The Collaborative Economy and EU Law, Hart Publishing, Oxford, 2018, 148;
Inversi C., Exploring the Concept of Regulatory Space: Employment and Working Time Regulation in
the Gig-Economy, PhD dissertation, University of Manchester, 2019;
Ivanova M., Bronowicka J., Kocher E., Degner A., The App as a Boss? Control and Autonomy in
Application-Based Management in Arbeit, Grenze, Fluss, Work in Progress interdisziplinärer
Arbeitsforschung, No. 2, 2018;
Josephs J., Just Eat to Stop Using Gig Economy Workers, in BBC news 2020, available at:
https://bbc.in/32oWaay, accessed 11 Nov. 2020.
Kenner J., Re-evaluating the Concept of Working Time: An Analysis of Recent Case Law, in Industrial
Relations Journal, vol. 35, 2004, 587;
Kenner J., Uber Drivers Are ‘Workers’ – The Expanding Scope of the ‘Worker’ Concept in the UK’s
Gig Economy in Kenner J., Florczak I., Otto M. (eds.), Precarious Work. The Challenge for Labour
Law in Europe, Edward Elgar Publishing Ltd, Cheltenham, 2019, 197;
Lane M., Regulating Platform Work in the Digital Age, Going Digital Toolkit Policy Note, No. 1,
2020, available at: https://bit.ly/3l1EXL9, accessed 11 Nov. 2020;
Lenaerts, K., EU citizenship and the European Court of Justice’s ‘stone-by-stone’ approach, in
International Comparative Jurisprudence, vol. 1., n. 1, 2015, 1;
Lo Faro A., Core and Contingent Work: A Theoretical Framework in Ales E., Deinert O., Kenner
J. (eds.), Core and Contingent Work in the European Union: A Comparative Analysis, Hart
Publishing, Oxford, 2017, 7;
Mangan D., Gramano E., Kullmann M., An unprecedented social solidarity stress test, in European
Labour Law Journal, vol. 11, n. 3, 2020, 247;
Menegatti E., Taking EU Labor Law beyond the Employment Contract: The Role Played by the
European Court of Justice, in European Labour Law Journal, vol. 11, n. 1, 2020, 26;


https://doi.org/10.6092/issn.1561-8048/11777                                                                     85
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                                                                                            Issue 2, Vol. 13 (2020)
                                                                                            Section: Miscellaneous


Menegatti E., The Evolving Concept of ‘Worker’ in EU law, in Italian Labour Law e-Journal, vol. 12,
n. 1, 2019, 71;
Nogler L., The Concept of ‘Subordination’, Università degli Studi di Trento, Trento, 2009;
Nowak T., The Turbulent Life of the Working Time Directive, in Maastricht Journal of European and
Comparative Law, vol. 25, n. 1, 2018, 118;
Pacella G., La nozione euro-unitaria di lavoratore dipendente alla prova della gig-economy: si pronuncia la
Corte di Giustizia europea, in Labour Law & Issues, vol. 6, n. 1, 2020, 16;
Pallini M., Towards a New Notion of Subordination in Italian Labour Law?, in Italian Labour Law e-
Journal, vol. 12, n. 1, 2019, 1;
Perulli A., Il diritto del lavoro ‘oltre la subordinazione’: le collaborazioni etero-organizzate e le tutele minime
per i riders autonomi, in WP C.S.D.L.E. ‘Massimo D’Antona’. IT, No. 410, 2020. 1;
Potocka-Sionek N., Aloisi A., ‘Festina Lente’: the ILO and EU Agendas on the Digital
Transformation of Work, in International Journal of Comparative Labour Law and Industrial Relations,
vol. 37, n. 1, 2021, available at SSRN: https://ssrn.com/abstract=3694754, accessed 11 Nov.
2020;
Rainone S., The European Pillar of Social Rights – Tell Me Where You Come from and I Will Tell You
Who You Are, in Perspectives on the European Pillar of Social Rights, Zbornik Znanstvenih Razprav,
LETNIK LXXX, 2020;
Risak M., Dullinger T., The Concept of ‘Worker’ in EU Law: Status Quo and Potential for Change,
ETUI Research Paper, no. 140, 2018;
Romera J., Semprún A. , Europa niega la relación laboral a los repartidores de plataformas digitales, in
ElEconomistas.es, 2020, available at: https://bit.ly/2B0TzsP, accessed 11 Nov. 2020;
Rosenblat A., Stark L., Algorithmic Labor and Information Asymmetries: A Case Study of Uber’s
Drivers, in International Journal of Communication, vol. 10, 2016, 3758;
Sachs B., Enough with the Flexibility Trope, in On Labor, 15 May, 2018, available at:
https://onlabor.org/enough-with-the-flexibility-trope/, accessed 11 Nov. 2020;
Šadl U., Does the Court of Justice Make Law in Small Steps? (Circumstantial) Evidence from the Free
Movement of Persons Jurisprudence, paper presented at the EUI Faculty Seminar, 2020;
Sagan A., The classification as ‘worker’ under EU law, in European Labour Law Journal, 2019, vol.
10, n. 4, 353;
Santoro Passarelli G., Sui lavoratori che operano mediante piattaforme anche digitali, sui riders e il
ragionevole equilibrio della Cassazione 1663/2020, in WP C.S.D.L.E. ‘Massimo D’Antona’. IT, No.
411, 2020, 1;
Sciarra S., Solidarity and Conflict, Cambridge University Press, Cambridge, 2018;
Speziale V., Un primo commento «a caldo», in Lavoro Diritti Europa, n. 1, 2020, 2;
Stone K.V.W., Flexibilization, Globalization and Privatization: The Three Challenges to Labor Rights
in Our Time, in Osgoode Hall Law Journal, vol. 44, n. 1, 2005, 77;
Szpejna M., Boudalaoui-Buresi Z., The Scope of EU Labour Law, Publication for the
Committee on Employment and Social Affairs, Policy Department for Economic, Scientific
and Quality of Life Policies, European Parliament, Luxembourg, 2020;
Tomassetti J., Algorithmic Management, Employment, and the Self in Gig Work, in Das Acevedo D.
(eds.), Beyond the Algorithm: Qualitative Insights for Gig Work Regulation, Cambridge University
Press, Cambridge, 2020, 123;



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Van Peijpe T., EU Limits for the Personal Scope of Employment Law, in European Labour Law
Journal, 2012, vol. 3, n. 1, 35;
Wood A. J., Graham M., Lehdonvirta V., Hjorth I., Good Gig, Bad Gig: Autonomy and
Algorithmic Control in the Global Gig Economy in Work, Employment and Society, vol. 33, n. 1, 2019,
56;
Woodcock J., Graham M., The Gig Economy: A Critical Introduction. Polity, Cambridge, 2019;
Woodcock J., The Algorithmic Panopticon at Deliveroo: Measurement, Precarity, and the Illusion of
Control, in Ephemera, Online first, 2020, accessed 11 Nov. 2020.




Copyright © 2020 Antonio Aloisi. This article is released under a Creative Commons
Attribution 4.0 International License




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