10.6092/issn.1561-8048/14005
The paper aims to discuss the intersections between self-employment and in-work poverty in the EU. In the first part of the article, after an analysis of the polysemic concept of self-employment, the Author examines the self-employment/poor work dyad in the European Union.The second part of the paper deals with the possible answers to in work-poverty in terms of policies and regulatory options at EU level, considered in the framework of the overall aim of fighting poverty and social exclusion in the European Union.
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Veronica Papa
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Italian Labour Law e-Journal
EU anti-poverty policies
The New Working (Poor) Class.  Self-Employment and In-Work Poverty in the EU: a Supranational Regulatory Strategy
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2021-12-22
2021-12-11
2021-12-22
2021-12-22
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ILLeJ
Veronica Papa
2021/12/22
10.6092/issn.1561-8048/14005
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EU anti-poverty policies
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The New Working (Poor) Class.  Self-Employment and In-Work Poverty in the EU: a Supranational Regulatory Strategy
https://illej.unibo.it/article/download/14005/13685
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The New Working (Poor) Class. Self-Employment and In-Work                                Italian Labour Law e-Journal
Poverty in the EU: a Supranational Regulatory Strategy                                          Issue 2, Vol. 14 (2021)
Veronica Papa                                                                                         ISSN 1561-8048
vpapa@lex.unict.it                                                     https://doi.org/10.6092/issn.1561-8048/14005




              The New Working (Poor) Class.
     Self-Employment and In-Work Poverty in the EU: a
             Supranational Regulatory Strategy
                                              Veronica Papa



 1. Premise: the dyad self-employment/in-work poverty in the EU. 2. The multidimensional
 notion of self-employment. An overview. 3. Anti-poverty policies in the EU. 3.1. In-work
 poverty and the EPSR. 4. Minimum wage and self-employment: revising the scope of Labour
 law? 4.1. Minimum income schemes as a last safety net for self-employed in times of crisis.
 5. Which medium and long-term routes out of in-work poverty? From quality jobs to
 collective voice.


                                                      Abstract

     The paper aims to discuss the intersections between self-employment and in-work poverty in
     the EU. In the first part of the article, after an analysis of the polysemic concept of self-
     employment, the Author examines the self-employment/poor work dyad in the European
     Union. The second part of the paper deals with the possible answers to in work-poverty in terms
     of policies and regulatory options at EU level, considered in the framework of the overall aim
     of fighting poverty and social exclusion in the European Union.

     Keyword: In-work poverty; Self-employment; Minimum wage; Minimum income; EU anti-
     poverty policies.



 1. Premise: the dyad self-employment/in-work poverty in the EU.

    In-work poverty is a hybrid notion that require, for its demarcation, a previous definition
 of the concepts of worker and poverty.
    According to Eurostat, individuals (workers) are at risk of in-work poverty (later on, also
 IWP) when they work for over half of the year and their equivalised yearly disposable
 household income is below 60% of the national household median income level.1 So, this is

 
   Veronica Papa, Associate Professor in Labour Law, University of Catania. This article has been submitted to
 a double-blind peer review process.
 1 According to Eurostat [EU statistics on income and living conditions (EU-SILC) methodology - in-work poverty, 2021],

 the in-work at-risk-of-poverty “refers to the percentage of persons in the total population who declared to be
 at work (employed or self-employed) who are at-risk-of-poverty (i.e. with an equivalised disposable income
  Veronica Papa                                                                                   Italian Labour Law e-Journal
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                                                                                                                Section: Theme




a notion of in-work poverty deduced from the household income, in which a low-wage
worker might not be automatically attracted and in which, instead, a worker living in a low-
work-intensity household might more easily be included (in addition, obviously, to those
affected by a combination of the two drivers of in-work poverty).2
    Based on these conventional parameters, about 9% of the European workers belong to a
household at risk of (relative) poverty, with a peculiarly high incidence of in-work poverty
on self-employed workers. For the latter, the exposure to the in-work poverty risk is more
than doubled with respect to full-time employees (22%).3
    The IWP risk for self-employed was naturally destined to expand, as it has already
happened, in connection with the health, economic and employment crisis triggered by the
Covid-19 pandemic. In fact, despite the almost generalised negative effects on the labour
market, the adverse consequences of the pandemic have disproportionally affected those
engaged in precarious working relationships.4
    The European Commission itself showed to be aware of the asymmetrical impact of the
Covid-19 crisis, observing that “the crisis is a test for our social protection systems and
necessary investments need to fill the gaps in coverage that have become apparent in the
crisis […] for those self-employed”.5 Similarly, in response to the economic shocks caused
by the 2020 lockdown, most European governments adopted forms of income support for
self-employed workers – especially in the form of una tantum monetary supports - and the
extension of some social security protections. This might be seen as a partial
acknowledgement of the socio-economic weakness of large segments of self-employment,
in particular, of the so-called solo self-employed.6


below the risk-of-poverty threshold, which is set at 60 % of the national median equivalised disposable income
(after social transfers)”. Eurofound, In-work poverty in the EU, Luxembourg, 2017, 5. Looking at this definition
it can be easily argued that “the most precarious workers, those with volatile and marginal labour market attachment during
the income reference period, are not included”: Horemans J., Marx I., Poverty and Material Deprivation among the Self-
Employed in Europe: An Exploration of a Relatively Uncharted Landscape, in Iza Discussion Paper, 2017, 11007, 11.
2 For a more precise semantic and conceptual demarcation between notions that can be only partially

overlapped, it is therefore necessary to distinguish between working poor and low-wage workers: Lohmann H., Marx
I. (eds.), Handbook on In-Work Poverty, Edward Elgar Publishing, 2018, 8.
3 See Eurostat, People at risk of poverty or social exclusion by most frequent activity status (population aged 18 and over), 2020.
4 Eurofound, Economic downturns expose the vulnerability of a growing number of precarious workers, 21 April 2020; EAPN,

The impact of Covid-19 on people experiencing poverty and vulnerability. Rebuilding Europe with a social heart, EAPN Report,
July, 2020.
5 Communication from the Commission to the European Parliament, the European Council, the Council, the

European Economic and Social Committee and the Committee of the Regions, Europe's moment: Repair and
Prepare for the Next Generation, COM(2020) 456 final. Significantly, in the legislative proposal for the SURE
regulation, the Commission referred explicitly to the necessity of supporting the “increased financial burden of
Member States for short-time work schemes and similar measures that help protect jobs and thus employees
and self-employed against the risks of unemployment and loss of income” (see Proposal for a Council
Regulation on the establishment of a European instrument for temporary support to mitigate unemployment
risks in an emergency (SURE) following the COVID-19 outbreak, COM/2020/139 final). In addition to that,
it is possible to detect in the text of the SURE Regulation multiple citations to the need of providing for “short-
time work schemes” (for the employees) or “similar measures” (for the self‐employed), thus reducing “the
incidence of unemployment and loss of income” [see Article 1, par. 2, of the Council Regulation (EU)
2020/672 of 19 May 2020 on the establishment of a European instrument for temporary support to mitigate
unemployment risks in an emergency (SURE) following the COVID-19 outbreak].
6 However, given the un-systematic nature of those emergency measures, it is too soon to predict a progressive

extension of social security and welfare protections to the self-employed. For a comparative analysis of the

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   It is from this viewpoint that – even if bearing in mind the polysemic nature of self-
employment - the dyad self-employed/in-work poverty in the EU will be analysed in the first
part of this article (§ 2). The second part of the paper will focus on the viable regulatory
options to combating in-work poverty for the self-employed, in the wider framework of EU
anti-poverty policies (§§ 3-4). In this latter regard and given the potentially very broad
extension of this topic, the attention will be focused on just two of the many possible anti-
poverty tools – currently widely discussed at European level - adequate minimum wages (§
4) and guaranteed minimum incomes (§ 4.1).


2. The multidimensional notion of self-employment. An overview.

    As numerous empirical studies pointed out, self-employed are highly exposed to the risk
of in-work poverty.7 From these data arise the necessity of a shift in the investigation of self-
employment, that may be analysed, in this regard, as the ultimate form of flexibility (or better,
precarity) of employment relationships.8 This perspective, however, cannot be referred to
self-employment as a whole and needs to be precisely demarcated.
    Even considering the complex and heterogeneous socio-economic composition of self-
employment as a category, a possible basic taxonomy of self-employed workers may be
aggregated – according to a Eurofound report – around five clusters, 9 including, respectively:
self-employed with employees, “stable” self-employed without employees, small traders and
farmers, vulnerable and concealed self-employed.
    According to this categorisation, the first two clusters – employers and stable own-
account workers – comprise the majority of self-employment and are mainly self-employed
“out of opportunity”, enjoying economic independence and autonomy in their work.10
    The last two groups – vulnerable and concealed self-employed – include at least a quarter
of self-employment and are mostly characterised by economic dependence, low levels of




emergency measures adopted by European governments: Battista L., Covid-19 and Self-employment: emergency
measures and unsolved challenges, in Italian Labour Law e-Journal, 1, 2020, 85; Mangan D., Gramano E., Kullmann
M., An unprecedented social solidarity stress test, in European Labour Law Journal, 3, 2020.
7 It is true, from one side, that the reliability of income data for the self-employed is somewhat debated, given

“the potential problem of under-reporting of income” [Bardone L., Guio A. C., In-work poverty: New commonly
agreed indicators at the EU level (Statistics in Focus, Population and Social Conditions No. 5/ 2005. Population
and Living Conditions), Office for Official Publications of the European Communities/Eurostat, Luxembourg,
2005, 3] and, from the other, that the in-work poverty rate of the self-employed may not be “a robust measure
of their actual living conditions for reasons related to the difficulty of assessing their income accurately”. For
this reason, it was observed that the IWP indicator for self-employed should be “complemented with other
indicators, such as material and social deprivation” (see Peña-Casas R.., Ghailani D., Spasova S., Vanhercke B.,
In-work poverty in Europe. A study of national policies, European Social Policy Network - ESPN, Brussels, 2019).
8 Conen W., Schippers J. (eds.), Self-Employment as Precarious Work. A European Perspective, Edward Elgar

Publishing, Cheltenham, 2019.
9 Eurofound, Exploring self-employment in the European Union, Luxembourg, 2017.
10 Unfortunately, this statement might deserve to be reconsidered in the light of the destructive impact of the

pandemic on this kind of workers, as already demonstrated by numerous empirical studies: Eurofound, Living,
working and COVID-19, COVID-19 series, Luxembourg, 2020.

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autonomy and financial vulnerability.11 Economically dependent workers and the bogus self-
employed are likely to be included in these two groups. Clearly, within this taxonomy, the
rising working poor class of (mostly false) autonomous workers - i.e. riders and, broadly,
platform workers - will be included alternatively, or maybe transversely, in one of these latter
groups of “weak” self-employed.
    If, in the last few years, the overall percentage of self-employed in the European union
remained stable – around 15% of the workforce12 – the internal composition of this
heterogeneous group has shifted over the time. On the one hand, the relative weight of the
self-employed without employees has gradually increased13 and, on the other, that of some
traditional professions has decreased; conversely, there has been an increase in the share of
self-employed in the service sector.14
    Another trait of precarization of self-employment concerns the dilatation of the share of
involuntary self-employed – about 20% of the autonomous workforce15 – that, far from
deliberately taking the risks of under-utilization by their clients, are induced to accept a, more
or less genuine, classification of their working contracts as self-employment.16
    So, it is possible to detect a series of trends converging towards a line of investigation
grounded on the multiple grades of precariousness to which a great deal of the “new
generation of self-employed” is exposed. This is particularly relevant with regard to the risks
of discontinuity and income-poverty (and, in a future projection, pension-poverty) as well as,
more generally, to limited access to traditional labour protections.17
    Considering that the risk of IWP affects not only the false self-employed but also the
genuine ones - such as freelancers in a weak position on the labour market - the remedies to
in-work poverty for both kinds of workers need to take into account the diversity between



11 In particular, the difference between vulnerable and concealed autonomous workers, although destined to
overlapping in practice, would lie in the economic vulnerability of the former ones, characterised by a very
small number of clients to rely on, and in the lack of work autonomy of the second ones, whose working
relationships recall the typical traits of subordinate work.
12 Eurofound, Exploring self-employment in the European Union, nt. (9), 7.
13 Conen W., Schippers J., Schulze Buschoff K., Self-employed without personnel between freedom and insecurity, in WSI

Stydy, 2016, 5.
14 In this context and using a different taxonomy, it could be noted that the category of I-Pros (Independent

professionals) is on the rise too. The acronym I-Pros refers itself to self-employed without personnel, mainly
working in intellectual professions in the service sector and exposed to risks of income-discontinuity and low-
wages. On the I-Pros, see Rapelli S., European I-Pros: A Study, London, 2012; Leighton P., Future Working: The Rise
of Europe’s Independent Professionals, London, 2013.
15 Eurofound, nt. (12), 10. To this portion of involuntary self-employed it should be added another 16% of

self-employed who “became self-employed based on their own preferences, but also because there were no
other alternatives for work”.
16 As a study commissioned by the European Parliament demonstrates, the likelihood of ending up in precarious

working relationships is higher for those who become self-employed as a necessity: Broughton A., Green M.,
Rickard C., Swift S., Eichhorst W., Tobsch V., Tros F., Precarious Employment in Europe. (Employment and Social
Affairs), European Parliament. Directorate-General for Internal Policies, Brussels, 2016. In addition to that,
different studies showed that, even if self-employment rate has not increased in the last few years, what has
increased, especially after the economic crisis, is the share of self-employed without employees (most of them
working part-time).
17 Schippers J., Conen W., Between freedom and insecurity: future challenges, in Conen W., Schippers J. (eds.), nt. (8),

261 ff.

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them, differentiating tools and regulatory options for the two categories of “autonomous
working poor”.
   From one side, a normative strategy calibrated on the divergencies between these two
hypotheses should consider the opportunity to include those in a situation of economic
dependence and in a single-client relationship within the scope of minimum wage guarantees
(§ 4). From the other, it would be necessary to provide, for self-employed workers with
insufficient income levels, the extension of welfare safety nets and the inclusion under the
protective umbrella of a guaranteed minimum income (§ 4.1).


3. Anti-poverty policies in the EU.

   The fight against in-work poverty is a fundamental part of the broader strategy to combat
poverty and social exclusion pursued by the institutions of the European Union. Although
the word poverty is not expressly associated, in the Treaties, with the objectives of social
inclusion18 and the notion of IWP became part of the institutional lexicon of the EU only
relatively recently, in 2003, with the introduction of the AROP (“At-Risk-of-Poverty”)
index,19 the institutions of the EU conducted pilot projects and programs designed to combat
poverty and exclusion since the 70s, even if in absence of a legal basis on this subject.20
   The situation changed with the entry into force, in 1999, of the Treaty of Amsterdam,
which embedded the fight against social exclusion among the objectives of Community social
policy.21
   Social inclusion then became, since the adoption of the Lisbon Strategy, in 2000, a crucial
objective to be pursued in the context of the open method of coordination.22 At the same
time, with the aim of combating social exclusion and poverty, art. 34 of the Charter of
Fundamental Rights of the European Union provided – even if with a vaguely generic
formulation - a right to social and housing assistance, with the purpose to “ensure a decent
existence for all those who lack sufficient resources”.
   However, in the two decades following the adoption of the Lisbon Strategy - which was
also followed by the emphasis on poverty reduction in Europe 2020 - and even after the

18 Apart from its citation with limited reference to relationships of the EU with third countries. See: art. 208
TFEU – where is proclaimed that the “the eradication of poverty” is the “primary objective” of Union
development cooperation policy; articles 3 and 21 TEU, where the eradication of poverty and the support to
sustainable development constitutes principles orienting the “external action” of the EU (art. 21) and its
relationships “with the wider world” (art. 3).
19 The AROP index was introduced by the Regulation (EC) No 1177/2003 of the European Parliament and of

the Council of 16 June 2003 concerning Community statistics on income and living conditions (EU-SILC).
20 Cf. Council Resolution of 21 January 1974 concerning a social action programme.
21 In the TFEU, references to social exclusion are made by art. 153, par. 1, j, and in the social mainstreaming

clause contained in art. 9 TFEU. For an analysis of the progressive rise of the issue of in-work poverty in EU
policies and of the relevance, for this purpose, of the Proposal for a Directive on adequate minimum wages,
Ratti L., La proposta di direttiva sui salari minimi adeguati nella prospettiva di contrasto all’in-work poverty, in Diritto delle
relazioni industriali, 1, 2021, 59.
22 Another piece of the European framework on the fight to poverty and social exclusion is the Commission

Recommendation of 3 October 2008 on the active inclusion of people excluded from the labour market
(2008/867/EC).

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establishment of the Social OMC,23 the role of the Union in the fight against poverty
remained exclusively confined to soft governance initiatives, such as the formulation of non-
binding objectives and targets and the monitoring of Member States’ progress in this field.
   It is not like saying that Social OMC, first, and the European semester, then, were
completely ineffective in the field of contrasting poverty and social exclusion. 24 But, if the
inadequacy of mere peer pressure strategies might have seen predictable, ex-ante, twenty years
of (excessively) soft approaches made this opinion scarcely disputable, ex-post.


3.1. In-work poverty and the EPSR.

    More recently, the issue of in-work poverty has been specifically addressed within the
European Pillar of Social Rights.25
    In this document – even if the context of a soft law text26 - for the first time, is explicitly
stated the necessity to guarantee the right to “fair wages that provide for a decent standard
of living”; to prevent “in-work poverty”27 and, moreover, to provide “the right to adequate
social protection”, “regardless of the type and duration” of the employment relationship for
workers, and, “under comparable conditions” for the self-employed, too.28
     Besides, Principle 14 (Minimum income) provides, for those “lacking sufficient resources”,
“the right to adequate minimum income benefits ensuring a life in dignity at all stages of
life”, stating, at the same time, for those who can work, that “minimum income benefits
should be combined with incentives to (re)integrate into the labour market”.
    Although contained in a mere solemn proclamation, without binding effects, the
principles stated in the Social Pillar brought a sort of a new impetus for a political
commitment of European institutions to the aim of (re)launching legislative initiatives in the
Social Law field.29
    Anyway, the perception of weakness regarding the European strategy to combat poverty
– and IWP, in particular – will not be destined to change until, as was requested even by
institutional actors, the EPSR will not be implemented via binding legal documents.30

23 The  Social OMC was instituted by the Communication of the Commission, COM (2005) 706 of 22 December
2005, Working together, working better. A new framework for the open coordination of social protection and inclusion policies in
the European Union.
24 On this theme: Wang J., van Vliet O., Goudswaard K., Minimum income protection and EU coordination, in

European Journal of Social Security, 3, 2018, 253.
25 See European Pillar of Social Rights, solemnly proclaimed by the European Parliament, the Council and the

Commission at the Social Summit in Gothenburg in November 2017.
26 For a dialogue on the prospects of implementation of the ESPR, see Ferrera M. (ed.), Towards a European

Social Union. The European Pillar of Social Rights and the Roadmap for a fully-fledged Social Union. A Forum debate, Turin,
Centro di Ricerca e Documentazione Luigi Einaudi, 2019.
27 Principle 6 (Wages) of the Social Pillar.
28 Principle 12 (Social protection) of the Social Pillar.
29 The “social activism” of the Von der Leyen Commission could be almost defined as unprecedented. Among

many other initiatives in the social law field, it is sufficient to recall, with this regard, the newly issued Proposal
for a Directive of the European Parliament and of the Council on improving working conditions in platform
work, COM(2021) 762 final.
30 See the European Parliament resolution of 19 January 2017 on a European Pillar of Social Rights, where – in

the paragraph devoted to Updating existing labour and social standards – the Parliament invited “social partners and

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    A light, at the end of the tunnel of the ineffectiveness of EU anti-poverty policies, started
to shine with the initiatives carried out by the Commission31 and especially with the proposal
for a directive on adequate minimum wages, which cites, among its “sources of inspiration”
the anti-poverty principles of the Social Pillar.32
   If that is true, it has to be underlined that on the issue of combating poverty through the
introduction of minimum income schemes, the current approach of the Commission,
remarked with the Action Plan, is still focused on the adoption of non-binding measures
and, notably, of a Proposal for a Council Recommendation on minimum income to
effectively support and complement the policies of Member States (to be issued in 2022).
   The persistent adoption of a soft law strategy, if comprehensible in the light of the political
obstacles to hard law initiatives,33 is nevertheless questionable for its lack of effectiveness,
reminding - as Olivier De Schutter recently did – that “if poverty could be eliminated with
good intentions, the EU would have long eradicated it”.34


4. Minimum wage and self-employment: revising the scope of Labour law?

   “When set at adequate levels, minimum wage protection ensures a decent living for
workers, helps sustain domestic demand, strengthens incentives to work, and reduces in-
work poverty and inequality at the lower end of the wage distribution”.35
   In this part of the paper, the connection between in-work poverty and self-employment
will be addressed analysing potentialities and constraints of viable EU policies on minimum
wage.
   Leaving aside here a thorough study of contents and prospects of implementation of the
proposed directive on adequate minimum wages,36 it is necessary to deal with the opportunity

the Commission to work together to present a proposal for a framework directive on decent working conditions
in all forms of employment, extending existing minimum standards to new kinds of employment relationships”.
For a detailed analysis of the possibilities for implementing the principles of the Social Pillar, with an indication
of the legal bases that can be used, see the study of Lörcher K., Schömann I., The European pillar of social rights:
critical legal analysis and proposals, in ETUI Report, 2016, n. 139.
31 The reference is made to the Action Plan to implement the European Pillar of Social Rights: European Commission,

European Pillar of social rights Action Plan, 4 March 2021, https://op.europa.eu/webpub/empl/european-pillar-
of-social-rights/en/; European Commission, The European Pillar of Social Rights: turning principles into actions,
Brussels, 4 March 2021, Press release. In this perspective, see also Communication from the Commission to
the European Parliament, the Council, the European Economic and Social Committee and the Committee of
the Regions, A strong social Europe for just transitions, COM(2020) 14 final, 14 January 2020.
32 See in particular the citations of Principle 6 of EPSR: Proposal for a Directive of the European Parliament

and of the Council on adequate minimum wages in the European Union, Brussels, 28 October 2020,
COM(2020) 682 final.
33 Not to mention the issues related to the legal base, on which see § 4.1.
34 Statement by Professor Olivier De Schutter, United Nations Special Rapporteur on extreme poverty and

human rights, on his visit to the European Union (25 November 2020 to 29 January 2021), Brussels, 29 January
2021.
35 COM(2020) 682 final.
36 Apart from the expected negative reaction of Business Europe (Business Europe, BusinessEurope position

paper on the proposal for an EU directive on fair minimum wages:
https://www.businesseurope.eu/sites/buseur/files/media/position_papers/social/2020-12-
04_pp_minimum_wages.pdf ), the Directive proposal is also strongly opposed by Nordic trade unions, fearing

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that the proposed legislation includes, among its beneficiaries, those self-employed who are
in a situation of economic dependence and/or who work, mainly or exclusively, for a specific
client.37
    Should the Directive be approved,38 its potential of protection towards self-employed
workers will mainly lie in a “purposive” extension, according to the canons of teleological
interpretation39 and of the effect utile, of the notion of worker so far elaborated by the Court
of Justice.40 A teleological interpretation of the guarantees of wage adequacy should bring
with it, as a matter of fact, the necessity to extend any regulatory provision on this theme to
economically dependent as well as, obviously, to false self-employed workers. This is
particularly true considering the explicit anti-poverty inspiration conferred to the Proposal,
which repeatedly refers to the anti-poverty principles of the EPSR and, in its Explanatory
memorandum, to the need of “improving working conditions and reducing in-work poverty
by establishing a framework for adequate minimum wage levels”.41
    From this point of observation, an analysis of the proposed scope of the Directive shows
lights and shadows. With regards to the “lights”, it should be observed that the list of non-
standard workers cited in the Preamble of the Proposal – recalling the definition contained
in the Directive 1152/201942 – may allow the inclusion within the scope of a relevant portion


that it will undermine their social models. See S. Engblom, EU Minimum Wage: Unlawful, Unfit for Purpose and
Utmost Complicated, in https://www.tco.se/tco-bloggar/bloggare/samuel-engblom/eu-minimum-wage-
unlawful-unfit-for-purpose-and-utmost-complicated/.
37 According to the OECD Employment Outlook 2014, dependent self-employed workers may be defined as

follows: “own-account self-employed – i.e. independent contractors without employees who either
autonomously produce and sell goods or engage with their clients in contracts for services, regulated by
commercial law – whose conditions of work are nonetheless similar to those of employees, in the sense that
they work mainly or exclusively for a specific client-firm […] with limited autonomy and often closely integrated
into its organizational structure. Even though their degree of subordination is similar to that of an employee,
they are usually not protected by employment protection rules because these rules do not apply to commercial
contracts. In addition, they typically have the same fiscal and social protection regimes as for the other self-
employed, which is typically less burdensome for their employers”.
38 Currently both the European Parliament and the Council approved the mandate for negotiations of the

Proposal. On November 25th, the European Parliament plenary confirmed the mandate to enter into “trilogue”
negotiations with the Commission and the Council, on the basis of the Report of the European Parliament’s
Employment and Social Affairs Committee (EMPL) on the European Commission’s proposal for a directive
on adequate minimum wages (Committee on Employment and Social Affairs, Report on the proposal for a
directive of the European Parliament and of the Council on the adequate minimum wages in the European
Union, (COM(2020)0682 – C9‑0337/2020 – 2020/0310, 18 November 2021). On December 6th the Council
agreed its position on the Commission proposal (Council agrees on mandate for negotiations on a EU
framework on adequate minimum wages, Council of the EU Press release, 6 December 2021).
39 On the notion of worker and its link with the scope of EU Labour law, Szpejna M., Boudalaoui-Buresi Z.,

The scope of EU labour law, in Publication for the committee on Employment and Social Affairs, Policy
Department for Economic, Scientific and Quality of Life Policies, European Parliament, Luxembourg, 2020.
40 Cf.: CJEU, Case C-66/85, Deborah Lawrie-Blum v Land Baden-Württemberg, ECLI:EU:C:1986:284; CJEU,

Case C-428/09, Union Syndicale Solidaires Isère v Premier ministre and Others, ECLI:EU:C:2010:612; CJEU,
Case C-413/13, FNV Kunsten Informatie en Media v Staat der Nederlanden, ECLI:EU:C:2014:2411.
41 This might be read in the Explanatory memorandum of the proposal, 4. The aspects related to in-work poverty are

clearly underlined in the Commission staff working document: Commission Staff Working Document,
Analytical document Accompanying the document Consultation document Second phase consultation of Social Partners under 154
TFEU on a possible action addressing the challenges related to fair minimum wages, SWD(2020) 105 final 3 June 2020.
42 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, recital 8.

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of self-employed, that could be defined as “not independent”.43 According to paragraph 17
of the Preamble, a comprehensive list of workers potentially involved in fake self-employed
job relations and generally excluded from the scope of wage guarantee measures - such as
“domestic workers, on-demand workers, intermittent workers, voucher based-workers,
bogus self-employed,44 platform workers, trainees and apprentices” - should “fall within the
scope” of the proposed Directive”. As for the shadows,45 it has to be remarked that this
“inclusive” approach is immediately withdrawn or, at least, weakened by the subsequent
clarification according to which the salary protection of non-standard workers should be
granted with limited reference to the cases in which they fulfil the “criteria established by the
Court of Justice of the European Union for determining the status of a worker”. 46 Even
sharper, in the perspective of the exclusion of “authentic” self-employment relationships, is
the next passage of par. 17 of the Preamble, in which is clearly stated that “genuinely self-
employed persons do not fall within the scope of this Directive since they do not fulfil those
criteria”. What is clear, reading this part of the Proposal, is that the outright exclusion of
genuinely self-employed persons from the Scope continues to push the economically
dependent self-employed within the notion of genuine self-employed and outside of the
protective umbrella of minimum wages.47 This exclusion seems to be in stark contrast with
the anti-poverty purposes allegedly pursued by the Proposal, which should include whoever
doesn’t have control over the price of business transactions (i.e. on the salary), regardless of
the formal classification of the contract.48

43 After all, similar views have already been expressed by the CJEU in FNV Kunsten [CJEU, Case C-413/13, nt.
(40)], where the Court stated “it must be recalled that, according to settled case-law, on the one hand, 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, 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”. Similarly, in Allonby (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,
ECLI:EU:C:2004:18), the Court declared “the formal classification of a self-employed person under national
law does not exclude the possibility that a person must be classified as a worker within the meaning of Article
141(1) EC if his independence is merely notional, thereby disguising an employment relationship within the
meaning of that article. In the case of teachers who are, vis-à-vis an intermediary undertaking, under an obligation
to undertake an assignment at a college, it is necessary in particular to consider the extent of any limitation on
their freedom to choose their timetable, and the place and content of their work. The fact that no obligation is
imposed on them to accept an assignment is of no consequence in that context”.
44 With specific regard to false self-employment, it is possible to read that “bogus self-employment occurs when

a person is declared to be self-employed while fulfilling the conditions characteristic of an employment
relationship, in order to avoid certain legal or fiscal obligations. Such persons should fall within the scope of
this Directive” [COM(2020) 682 final, 19].
45 About the shadows, it should be also noted, from an anti-poverty perspective, that one of the most disputable

aspects of the Proposal is that it does not provide for a “threshold of decency” below which statutory minimum
wages cannot fall (see the requests for improvements of the Directive formulated by ETUC: European Trade
Union Confederation. Crucial wages directive needs improvement, Press Release, Brussels, 28 October 2020 and, more
recently, Müller T., Schulten T., More ambitious European minimum-wages directive demanded, in Social Europe, 26
November 2021, https://socialeurope.eu/more-ambitious-european-minimum-wages-directive-demanded).
46 COM(2020) 682 final, 12.
47 And in fact in the Preamble it is also stated that “a minimum wage would not be appropriate for genuinely

self-employed persons”.
48 See Countouris N., De Stefano V., The Labour Law Framework: Self-Employed and Their Right to Bargain Collectively,

in Bulletin of comparative labour relations, 2021, relying on the notion of “predominantly personal work” as a new
conceptual tool for re-defining the scope of the fundamental right to bargain collectively.

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    Anyway, and beyond its intrinsic limitations,49 it is the possibility of a purposive interpretation
of the scope of labour protections50 potentially arising from this proposal that deserves to be
emphasized and preserved. In this direction, it will be necessary to verify if the notion of
worker emerging from CJEU case law might be further extended, to go beyond the “false”
self-employed, and further adapted, to some extent, to genuine but vulnerable self-
employed,51 following an expansive trend of labour protections’ scope already plainly
admitted for other areas of European social law (namely, for anti-discrimination law).52


4.1. Minimum income schemes as a last safety net for self-employed in times of crisis.

   If an adequate minimum wage may be a viable option for low-wage autonomous workers
in a situation of economic dependence, the mere provision of a wage floor could not cope
with the issue of low work intensity, another major driver of IWP.53
   Even if minimum income schemes (MIS) are addressed to poverty in general and not
specifically to in-work poverty - and beyond the necessity to provide for ad hoc social
protection measures for self-employed persons - the introduction of MIS may be necessary
to complement the protection guaranteed by minimum wages and for the hypotheses in
which one is not eligible for social insurance payment.
   With regards to the possibility of providing forms of income integration for self-
employed, as a kind of guaranteed minimum income for those below a certain threshold, it
is worthwhile to recall the political evolution in the field of decent minimum incomes.
   As mentioned above (§ 3.1.), the EPSR contains highly relevant declarations on issues
related to low-wage and under-protected workers, even if self-employed, as, e.g., the
statement about the workers’ right to “fair and equal treatment”, “regardless of the type and
duration of the employment relationship”.54 Even more important is the provision relating
to the “right to adequate minimum income benefits”, to be combined with strategies for the
(re)integration into the labour market (Principle 14 of the Social Pillar).

49 On which see Peña-Casas R., Ghailani D., A European minimum wage framework: the solution to the ongoing increase
in in-work poverty in Europe?, in Vanhercke B., Spasova S., Fronteddu B. (eds.), Social policy in the European Union:
state of play 2020, Brussels: ETUI and OSE, 2021, 133.
50 This expression is borrowed from the book of Davidov G., A Purposive Approach to Labour Law, Oxford

University Press, Oxford, 2016.
51 Risak M., Dullinger T., The concept of ‘worker’ in EU law: status quo and potential for change, in ETUI Report 140,

2018.
52 Barnard C., Blackham A., Discrimination and the Self-Employed: The Scope of Protection in an Interconnected Age, in

Collins H. (ed.), European Contract Law and the Charter of Fundamental Rights, Intersentia, Cambridge, 2017, 197.
The principles of the EPSR (especially nr. 4, 12, 14) are undoubtedly an expression of the expansive trend of
the scope of Labour law; on this point, L. Ratti, Self-employment matters – the EU’s response to the lack of social protection
for independent workers, in European Employment Law Cases, 3, 2020, 165.
53 Eurofound, Minimum wages in 2020: annual review, Minimum Wages in the EU series, Publications Office of the

European Union, 2020.
54 Principle 5 (Secure and adaptable employment), where it is declared the right to “fair and equal treatment regarding

working conditions, access to social protection and training”, “regardless of the type and duration of the
employment relationship”. In this declaration, it might be seen the willingness to protect all forms of work and
therefore also self-employment, see: Caruso B., I diritti dei lavoratori digitali nella prospettiva del Pilastro sociale, in WP
C.S.D.L.E. “Massimo D’Antona” INT., 146/2018.

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    But the European framework on decent minimum incomes dates back to the 90s, with
the adoption of two recommendations in 1992,55 which attests the significant
acknowledgement, at Union level, of the inability of economic growth to automatically
produce the improvement of living and working conditions in the EU.
    More explicitly, in 2010, the European Parliament, starting from the awareness of an
“increasing number of working poor”, underlined “the need to tackle this new challenge by
combining different instruments”, stating “that a living wage must always be above the
poverty threshold, and that workers who for multiple reasons remain below the poverty
threshold should receive top-ups that are unconditional and easy to take up”.56
    Lately, the Parliament exhorted the Commission “to present an EU framework on
minimum income”,57 formulating this invitation, significantly, in the context of a Resolution
“on reducing inequalities with a special focus on in-work poverty”, in which the issue of the
rising number of self-employed working poor is repeatedly highlighted. However, as
demonstrated by the decades passed since the Recommendations of 1992,58 these indications
are destined to remain in the limbo of good intentions, if not followed by binding regulatory
interventions.
    It is true that, until now, the idea of the lack of a supranational legislative competence on
minimum income schemes prevailed; this happened mainly in connection with the absence
of harmonization powers in the “specific” legal base, namely art. 153 TFEU, paragraph 1, J),
expressly devoted to the “fight against social exclusion”.59
    On this point, however, there is no shortage of alternative legal bases for the adoption of
a legislation on guaranteed minimum income.60 It is sufficient to think about the multiple
legal grounds mentioned in an EESC Opinion,61 in which are invoked a series of
“transversal” provisions of the Treaties – such as articles 3 TEU, 9 TFEU and 151 TFEU –
in combination with art. 153 and, in particular, to some of its paragraphs, regarding,
respectively: c) social security and social protection of workers; h) integration of persons
excluded from the labour market; j) combating of social exclusion; k) modernisation of social
protection systems.


55 Council Recommendation of 24 June 1992 on common criteria concerning sufficient resources and social
assistance in social protection systems (92/441/EEC); Council Recommendation of 27 July 1992 on the
convergence of social protection objectives and policies (92/442/EEC).
56 European Parliament resolution of 20 October 2010 on the role of minimum income in combating poverty

and promoting an inclusive society in Europe, p. 26. See also European Parliament resolution of 24 October
2017 on minimum income policies as a tool for fighting poverty.
57 European Parliament resolution of 10 February 2021 on reducing inequalities with a special focus on in-work

poverty, p. 34.
58 As well as the years passed since the inauguration of the Lisbon Strategy.
59 This is the provision mentioned by the Commission in the Communication from the commission to the

European Parliament, the Council, the European Economic and Social Committee and the Committee of the
Regions, Launching a consultation on a European Pillar of Social Rights COM/2016/0127 final.
60 Recently there was a multiplication of declarations, even in institutional documents, on the necessity of an

update of the European framework on these matters: cf. Council conclusions on strengthening minimum
income protection to combat poverty and social exclusion in the COVID-19 Pandemic and Beyond, 9 October
2020.
61 Opinion released by the European Economic and Social Committee: EESC, For a European Framework Directive

on a Minimum Income, 20 February 2019, SOC/584.

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    Anyway, should a political will on this point arise,62 further elements for the legal feasibility
of a framework directive on minimum income could be detected in the detailed legal opinion
provided by a pool of experts appointed by the EAPN (European Anti-Poverty Network).63
    Particularly interesting is the identification, within this document, of a kind of “squaring
of the circle” for a directive on adequate minimum income: with the recurse to a mechanism
already used for social law legislation in the past – for example, for adopting Regulation
883/2004 64 - that is the foundation on two different, but complementary, legal bases. This
dual legal basis – composed by article 153, paragraph 1, letter h), and 175 TFEU - compared
to those relying only on Article 153, would allow the overcoming, on the one hand, of the
obstacle represented by the unanimity rule – provided by art. 153, paragraph 1), letter c). On
the other, it would make it possible to avoid the limitations deriving, respectively, from the
application of art. 153, paragraph 1, letter c) - which refers only to “workers” - or, conversely,
from its letter h) - which refers only to “people excluded from the labour market”.65 So,
considering the lack of self-sufficiency, in terms of subjective coverage, of the two mentioned
letters of art. 153 TFEU, if used separately,66 in the EAPN opinion it is recalled, alongside
letter h) of art. 153, the legal basis contained in article 175 TFEU, which can be invoked for
regulatory provisions aimed at increasing social cohesion and reducing disparities between
Member States.67
    The solution grounded on the combination of article 153, paragraph 1, letter h), and 175
TFEU could, in this perspective, allow a legal intervention capable of protecting “all persons
at all stages of life”, as required by Principle 14 of the Social Pillar.68


62 As the European Economic and Social Committee pointed out, in fact, “the question of introducing a decent
minimum income guaranteed by the EU is highly political” (par. 1.7.).
63 A Van Lancker A., Aranguiz A., Verschueren H.,, Expert Study on a binding EU framework on Adequate National

Minimum Income Schemes. Making the case for an EU framework directive on minimum income, 2020; see also Servulo &
Associados for the European Anti-Poverty Network, An Eu Directive on Adequate Minimum Income: A legal
assessment, 2010. Many other documents of EAPN deal with the notion of adequate minimum income; see, ex aliis,
EAPN, EAPN Position Paper on Adequate Income, 2020.
64 Regulation (EC) no 883/2004 of The European Parliament and of the Council of 29 April 2004 on the

coordination of social security systems, adopted on a dual legal basis, represented by the combination of Articles
48 and 352 TFEU. More recently see also the Recommendation on access to social protection for workers and
the self-employed (Council Recommendation of 8 November 2019 on access to social protection for workers
and the self-employed 2019/C 387/01), in this case, the dual basis resulted by the combination of article 153
and 352 TFEU.
65 This provision, in fact, with a limitation opposite to the one contained in letter c), would not apply to those

who are, in some way, “included” in the labour market, even if lacking sufficient resources.
66 As well as the impossibility of referring to a combination of both. In fact, the possibility of a joint application

as legal bases of the two letters of article 153 – letter c) and h) – is precluded by the diversity of the respective
legislative procedures: a special legislative procedure, with the adoption by the Council unanimously under letter
c); the ordinary legislative procedure, with the approval by qualified majority, under letter h).
66 As well as the impossibility of referring to a combination of both. In fact, the possibility of a joint application

as legal bases of the two letters of article 153 – letter c) and h) – is precluded by the diversity of the respective
legislative procedures: a special legislative procedure, with the adoption by the Council unanimously under letter
c); the ordinary legislative procedure, with the approval by qualified majority, under letter h).
67 As provided by Article 174 TFEU – in combination with art. 175 – the Union shall “develop and pursue its

actions leading to the strengthening of its economic, social and territorial cohesion” and shall aim, in particular,
“at reducing disparities between the levels of development of the various regions and the backwardness of the
least favoured regions”.
68 Van Lancker A., Aranguiz A., Verschueren H., nt. (63), 31.



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    In any case, even considering a framework directive on minimum income as one of the
necessary tools for alleviating IWP and, lately, for mitigating the disruptive effects of the
pandemic, it has to be underlined that the recourse to minimum income schemes (MIS) for
self-employed should be intended as a “last safety net”. This is particularly true considering
that it is necessary to avoid the risk that “the recurrent use of the MIS to alleviate situations
of IWP […] may contribute to a social acceptance of low-wage employment and to
acquiescence with the benefit being used to subsidise both capital and low wages, without
regard to the underlying causes of low wages”.69


5. Which medium and long-term routes out of in-work poverty? From quality jobs to
collective voice.

    A conclusive reflection must be devoted, in this paper, to the insufficiency of mere wage
guarantees or income support strategies, in front of the notorious multifaceted nature of in-
work poverty.70 These kinds of strategies, however crucial – especially, in times of crisis, as
economic stabilisers71 – might contribute to reducing the impact of in-work poverty intended
as income insufficiency or income discontinuity of a single low-wage earner. But they could
hardly work as self-sufficient ways out of in-work poverty.
    Although it is not possible, in this paper, to address the phenomenon of poverty as a
whole, it is worth pointing out that a credible strategy can only derive from an integrated system
for combating in-work poverty. Such a systematic approach should require that in-work
incentives, life-long learning and active labour market policies, from one side, and income
support measures and social transfers, from the other, are properly theorised and structured
as complementary tools.72
    From this perspective, it should be incidentally remarked that a medium-long term
strategy should also include and coordinate a whole series of direct and indirect measures to
combat IWP on the side of access to goods and services, taxes and social security
contributions73 and, most importantly, the removal of gender inequalities, as an issue
inevitably linked to in-work poverty.74

69 Rodríguez Cabrero G., Arriba A., Marbán V., Montserrat J., Thematic Report on In-work poverty: Spain, European
Social Policy Network (ESPN), Brussels, European Commission, 2019.
70 It is not possible, in fact, to detect unique or exclusive causes, even within apparently homogeneous social

groups, for the exposure to the risk of poverty; cf. Crettaz E., Bonoli G., Why Are Some Workers Poor? The
Mechanisms that Produce Working Poverty in a Comparative Perspective, in REC-WP, 12, 2010.
71 How it can be read in the Council conclusions on strengthening minimum income protection, nt. (60), 3

“minimum income schemes not only contribute in an essential manner to the social protection of those groups
that have been hit hardest by the crisis, they also have a stabilising effect on the overall demand for goods and
services produced in the economy”; on this point see also European Parliament, Study on “The Role of Social
Protection as Economic Stabiliser: Lessons from the Current Crisis”, 2010.
72 For a classification of the measures adopted by different Member States on in-work poverty, Tufo M., The

Working Poor in the European Union, in Italian Labour Law e-Journal, 1, 2019, 99.
73 For an in-depth analysis of these themes, see Ratti L. (ed.), In-Work Poverty in Europe. Vulnerable and Under-

represented Persons in a Comparative Perspective, Wolters Kluwer, Alphen aan den Rijn, forthcoming.
74 On the connections between in-work poverty and gender inequality (and on the recurrent overlap between

low work-intensity households and in-work poverty): EAPN, Gender and Poverty in Europe. EAPN briefing note,

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    Turning back to the specific features of in-work poverty and given that poor-quality jobs
can be included among the main drivers of IWP, active labour market policies and incentives
to work should be directed to the creation of quality jobs. In this respect, a fundamental role
can be assigned to training policies75 and in particular to lifelong learning policies.76
   Finally, in an integrated strategy of support to self-employment, there should be space for
options of collective “voice” for weak self-employed workers.77 In this context, the collective
organisation of self-employed should be considered a “necessary response to increasing
income inequality”,78 both with regard to neo-mutualistic organisations and traditional forms
of collective representation. It is true that, until now, the Court of Justice, in compliance with
the flat assimilation of self-employed to businesses, has mainly analysed the issue of collective
labour agreements laying down minimum fees in the shadow of competition law,79 excluding
the violation of Article 101 TFEU only with regard to false self-employed workers.80 But it is
also true that such an interpretation deserves to be revisited in front of the legal and
economic weakness of kinds of self-employed, other than the false ones, that are certainly
more similar to subordinate workers than to companies.81
   On this point, since 2020 the European Commission launched a process to address the
issue of collective bargaining for the self-employed,82 coming to admit that, even beyond the
cases of misclassification and bogus self-employment, “solo self-employed persons […] may
nevertheless be in a weak bargaining position vis-à-vis their counterparties and therefore may
be unable to significantly influence their working conditions”.83


2017; Ponthieux S., Gender and in-work poverty, in Lohmann H., Marx I. (eds.), Handbook on In-Work Poverty,
Edward Elgar Publishing, Cheltenham, 2018, 70.
75 Principle 1 (Education, training and life-long learning) of the EPSR is devoted to these subjects, stating that

“everyone has the right to quality and inclusive education, training and life-long learning in order to maintain
and acquire skills that enable them to participate fully in society and manage successfully transitions in the
labour market”.
76 Even if among the working poor are currently included the so-called I-Pros, the correlation between low

levels of education and low-skilled jobs is a well-known feature of in-work poverty.
77 In this field it should also be taken into account the aim of supporting small and medium-sized enterprises

(art. 173 TFEU) and of promoting entrepreneurship as an “instrument to improve employability levels” (cf.
Communication from the Commission to the European Parliament, the Council, the European Economic and
Social Committee and the Committee of the Regions, Entrepreneurship 2020 Action Plan, Reigniting the
entrepreneurial spirit in Europe, COM/2012/0795 final).
78 On these subjects, recently, Razzolini O., Collective action for self-employed workers: a necessary response to increasing

income inequality, in WP C.S.D.L.E. “Massimo D’Antona”.INT – 155/2021.
79 Court of Justice of the European Union 18 July 2013, C-136/12, Consiglio nazionale dei geologi v Autorità garante

della concorrenza e del mercato.
80 Court of Justice of the European Union 4 December 2014, C-413/13, FNV Kunsten.
81 These workers might also be affected by the “pathologies of work” traditionally typical of employment

relationships (see Jaeggi R., Pathologies of Work, in WSQ: Women’s Studies Quarterly, 3 & 4, Fall/Winter, 2017, 59)
and this fact could easily justify a re-assessment of the balancing paradigms between the right to bargain
collectively and the tight constraints imposed by EU antitrust law. In this sense, see Caruso B., Papa V., A new
rationale of collective social rights for self-employed workers, Paper presented during the webinar Labour Law Beyond
Subordination. Issues, ideas, proposals and perspectives, International Society for Labour and Social Security Law
(ISLSSL), 7th Seminar on International and Comparative Labour Law (21/22/23 June 2021).
82 Competition: The European Commission launches a process to address the issue of collective bargaining for

the self-employed, press release, Brussels, 30 June 2020.
83 Annex to the Communication from the Commission, Approval of the content of a draft for a

Communication from the Commission, Guidelines on the application of EU competition law to collective

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   This is just one step on the long and dangerous path that could possibly lead to a partial
overcoming of competition law constraints for self-employed collective voice, but this is path
that deserves to be encouraged and attentively followed.84




                                                    Bibliography


Bardone L., Guio A. C., In-work poverty: New commonly agreed indicators at the EU level (Statistics
in Focus, Population and Social Conditions No. 5/ 2005. Population and Living Conditions), Office for
Official Publications of the European Communities/Eurostat, Luxembourg, 3, 2005;
Barnard C., Blackham A., Discrimination and the Self-Employed: The Scope of Protection in an
Interconnected Age, in H. Collins (ed.), European Contract Law and the Charter of Fundamental
Rights, Intersentia, Cambridge, 2017, 197;
Battista L., Covid-19 and Self-employment: emergency measures and unsolved challenges, in Italian Labour
Law e-Journal, 1, 2020, 85;
Broughton A., Green M., Rickard C., Swift S., Eichhorst W., Tobsch V., Tros F., Precarious
Employment in Europe (Employment and Social Affairs), European Parliament. Directorate-
General for Internal Policies, Brussels, 2016;
Caruso B., I diritti dei lavoratori digitali nella prospettiva del Pilastro sociale, in WP C.S.D.L.E.
“Massimo D’Antona” INT., 146, 2018;
Caruso B., Papa V., A new rationale of collective social rights for self-employed workers, Paper presented
during the webinar Labour Law Beyond Subordination. Issues, ideas, proposals and perspectives,


agreements regarding the working conditions of solo self-employed persons, Brussels, 9.12.2021 C(2021) 8838
final: http://ec.europa.eu/competition/consultations/open.html.
84 This path should be monitored and accompanied for avoiding simplistic slips, that are already appearing in

the text of the Draft Guidelines, according to which collective bargaining tailored to solo self-employed should
be allowed with limited reference to these two hypotheses: a) collective agreements concluded by solo self-
employed persons with counterparties of a certain economic strength; b) collective agreements concluded by
self-employed persons pursuant to national or EU legislation (see Annex to the Communication from the
Commission, nt. (83), 13 ff.). Referring in particular to the cases listed under letter a), it is highly disputable the
provision of an economic threshold for identifying the imbalance of power between solo self-employed and
their counterparties. See, in particular, p. 13 of the Draft Guidelines, where is stated that the “imbalance in
bargaining power will be considered to exist at least: where solo self-employed persons negotiate or conclude
collective agreements with one or more counterparties which represent the whole sector or industry; and where
solo self-employed persons negotiate or conclude collective agreements with a counterparty whose annual
aggregate turnover exceeds EUR 2 million or whose staff headcount is equal or more than 10 persons or with
several counterparties which jointly exceed one of these thresholds”. For a brief comment, cf. ETUC on
competition law and collective agreements for self-employed, 09.12.2021, Press release, where is possible to read that
“making the fundamental right to collective bargaining of self-employed workers conditional upon thresholds
such as the size or turnover of the employer, as proposed in the guidelines, is unacceptable. Collective
agreements establish a level playing-field for both workers and business, which must not be undermined by
allowing for exceptions for small enterprises”.



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International Society for Labour and Social Security Law (ISLSSL), 7th Seminar on
International and Comparative Labour Law (21/22/23 June 2021);
Commission Staff Working Document, Analytical document Accompanying the document
Consultation document Second phase consultation of Social Partners under 154 TFEU on a possible action
addressing the challenges related to fair minimum wages, SWD(2020) 105 final 3 June 2020;
Committee on Employment and Social Affairs, Report on the proposal for a directive of the
European Parliament and of the Council on the adequate minimum wages in the European
Union, (COM(2020)0682 – C9‑0337/2020 – 2020/0310, 18 November 2021);
Conen W., Schippers J. (eds.), Self-Employment as Precarious Work. A European Perspective,
Edward Elgar Publishing, 2019;
Conen W., Schippers J., Schulze Buschoff K., Self-employed without personnel between freedom and
insecurity, in WSI Study, 5, 2016;
Council Conclusions on strengthening minimum income protection to combat poverty and
social exclusion in the COVID-19 Pandemic and Beyond, 9 October 2020;
Council of the EU, Council agrees on mandate for negotiations on a EU framework on
adequate minimum wages, Press release, 6 December 2021;
Countouris N., De Stefano V., The Labour Law Framework: Self-Employed and Their Right to
Bargain Collectively, in Bulletin of comparative labour relations, 2021;
Crettaz E., Bonoli G., Why Are Some Workers Poor? The Mechanisms that Produce Working Poverty
in a Comparative Perspective, in REC-WP, 12, 2010;
Davidov G., A Purposive Approach to Labour Law, Oxford University Press, Oxford, 2016.
EAPN, EAPN Position Paper on Adequate Income, 2020.
EAPN, Gender and Poverty in Europe. EAPN briefing note, 2017;
Eapn, The impact of Covid-19 on people experiencing poverty and vulnerability. Rebuilding Europe with a
social heart, EAPN Report, July, 2020;
EESC, For a European Framework Directive on a Minimum Income, 20 February 2019, SOC/584.
Engblom S., EU Minimum Wage: Unlawful, Unfit for Purpose and Utmost Complicated, in
https://www.tco.se/tco-bloggar/bloggare/samuel-engblom/eu-minimum-wage-unlawful-
unfit-for-purpose-and-utmost-complicated/ (last visited on 10 December 2021);
ETUC, European Trade Union Confederation. Crucial wages directive needs improvement, Press Release,
Brussels, 28 October 2020;
Eurofound, Economic downturns expose the vulnerability of a growing number of precarious workers, 21
April 2020;
Eurofound, Exploring self-employment in the European Union, Luxembourg, 2017;
Eurofound, In-work poverty in the EU, Luxembourg, 2017;
Eurofound, Living, working and COVID-19, COVID-19 series, Luxembourg, 2020;
Eurofound, Minimum wages in 2020: annual review, Minimum Wages in the EU series, Publications
Office of the European Union, 2020;
European Commission, Annex to the Communication from the Commission, Approval of
the content of a draft for a Communication from the Commission, Guidelines on the
application of EU competition law to collective agreements regarding the working conditions
of solo self-employed persons, Brussels, 9.12.2021 C(2021) 8838 final:


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 Veronica Papa                                                                Italian Labour Law e-Journal
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                                                                                            Section: Theme




http://ec.europa.eu/competition/consultations/open.html, (last visited on 10 December
2021);
European Commission, Communication from the Commission to the European Parliament,
the European Council, the Council, the European Economic and Social Committee and the
Committee of the Regions, Europe's moment: Repair and Prepare for the Next Generation,
COM(2020) 456 final;
European Commission, Communication from the commission to the European Parliament,
the Council, the European Economic and Social Committee and the Committee of the
Regions, Launching a consultation on a European Pillar of Social Rights COM/2016/0127
final;
European Commission, Communication from the Commission to the European Parliament,
the Council, the European Economic and Social Committee and the Committee of the
Regions, A strong social Europe for just transitions, COM(2020) 14 final, 14 January 2020.
European Commission, Communication of the Commission, COM (2005) 706 of 22
December 2005, Working together, working better. A new framework for the open
coordination of social protection and inclusion policies in the European Union;
European Commission, European Pillar of social rights Action Plan, 4 March 2021,
https://op.europa.eu/webpub/empl/european-pillar-of-social-rights/en/ (last visited on 10
December 2021).
European Commission, Recommendation of 3 October 2008 on the active inclusion of
people excluded from the labour market (2008/867/EC);
European Commission, The European Pillar of Social Rights: turning principles into actions,
Brussels, 4 March 2021, Press release;
European Parliament, Resolution of 20 October 2010 on the role of minimum income in
combating poverty and promoting an inclusive society in Europe;
European Parliament, Resolution of 24 October 2017 on minimum income policies as a tool
for fighting poverty;
European Parliament, Study on “The Role of Social Protection as Economic Stabiliser:
Lessons from the Current Crisis”, 2010;
Eurostat, EU statistics on income and living conditions (EU-SILC) methodology - in-work poverty, 2021.
Ferrera M. (ed.), Towards a European Social Union. The European Pillar of Social Rights and the
Roadmap for a fully-fledged Social Union. A Forum debate, Centro di Ricerca e Documentazione
Luigi Einaudi, Turin, 2019;
Hills J., Cantillon B., Goedemé T. (eds.), Decent Incomes for All: Improving Policies in Europe,
Oxford University Press, Oxford, 2018;
Horemans J., Marx I., Poverty and Material Deprivation among the Self-Employed in Europe: An
Exploration of a Relatively Uncharted Landscape, in Iza Discussion Paper, 11007, 2017, 11;
Jaeggi R., Pathologies of Work, WSQ: Women’s Studies Quarterly, 3 & 4, Fall/Winter, 2017, 59.
Leighton P., Future Working: The Rise of Europe’s Independent Professionals, London, 2013;
Lörcher K., Schömann I., The European pillar of social rights: critical legal analysis and proposals, in
ETUI Report, 139, 2016;
Mangan D., Gramano E., Kullmann M., An unprecedented social solidarity stress test, in European
Labour Law Journal, 2020, n. 3;

https://doi.org/10.6092/issn.1561-8048/14005                                                              57
 Veronica Papa                                                                Italian Labour Law e-Journal
                                                                                     Issue 2, Vol. 14 (2021)
                                                                                            Section: Theme




Mangan D., Gramano E., Kullmann M., An unprecedented social solidarity stress test, in European
Labour Law Journal, 3, 2020;
Müller T., Schulten T., More ambitious European minimum-wages directive demanded, in Social Europe,
26 November 2021, https://socialeurope.eu/more-ambitious-european-minimum-wages-
directive-demanded (last visited on 10 December 2021);
Peña-Casas R., Ghailani D., A European minimum wage framework: the solution to the ongoing increase
in in-work poverty in Europe?, in Vanhercke B., Spasova S. and Fronteddu B. (eds.), Social policy
in the European Union: state of play 2020, ETUI and OSE, Brussels, 2021, 133;
Peña-Casas R., Ghailani D., Spasova S., Vanhercke B., In-work poverty in Europe. A study of
national policies, European Social Policy Network (ESPN), Brussels, 2019, 13;
Ponthieux S., Gender and in-work poverty, in H. Lohmann, I. Marx (eds.), Handbook on In-Work
Poverty, Edward Elgar Publishing, Cheltenham, 2018, 70;
Rapelli S., European I-Pros: A Study, London, 2012;
Ratti L. (ed.), In-Work Poverty in Europe. Vulnerable and Under-represented Persons in a Comparative
Perspective, Wolters Kluwer, Alphen aan den Rijn, forthcoming;
Ratti L., La proposta di direttiva sui salari minimi adeguati nella prospettiva di contrasto all’in-work
poverty, in Diritto delle relazioni industriali, 1, 2021, 59;
Ratti L., Self-employment matters – the EU’s response to the lack of social protection for independent
workers, in European Employment Law Cases, 3, 2020, 165;
Razzolini O., Collective action for self-employed workers: a necessary response to increasing income
inequality, in WP C.S.D.L.E. “Massimo D’Antona”.INT, 155, 2021;
Risak M., Dullinger T., "The concept of ‘worker’ in EU law: status quo and potential for change",
ETUI, Report 140, 2018;
Rodríguez Cabrero G., Arriba A., Marbán V., Montserrat J., Thematic Report on In-work poverty:
Spain, European Social Policy Network (ESPN), European Commission, Brussels, 2019;
Servulo & Associados for the European Anti-Poverty Network, An Eu Directive on Adequate
Minimum Income: A legal assessment, 2010;
Szpejna M., Boudalaoui-Buresi Z., The scope of EU labour law, in Publication for the Committee
on Employment and Social Affairs, Policy Department for Economic, Scientific and Quality
of Life Policies, European Parliament, Luxembourg, 2020;
Tufo M., The Working Poor in the European Union, in Italian Labour Law e-Journal, 2019, n. 1, p.
99 ff.;
Van Lancker A., Aranguiz A., Verschueren H., Expert Study on a binding EU framework on
Adequate National Minimum Income Schemes. Making the case for an EU framework directive on
minimum income, 2020;
Wang J., van Vliet O., Goudswaard K., Minimum income protection and EU coordination, in
European Journal of Social Security, 3, 2018, 253.


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https://doi.org/10.6092/issn.1561-8048/14005                                                              58
