Collective Rights, Competition, and Self-Employed Workers in the EU: Recent Developments and Ongoing Problems

Prohibition of Discrimination on Grounds of Nationality in the Freedom of Movement of Persons within the EU in the Light of Case Law of the Court of Justice of the European Union

The objective of this article is to present the most significant recent case law of the Court of Justice of the European Union (CJEU) related to the competition law. Firstly, focus is given to some recent CJEU case law in the antitrust area, i.e. the judgments dealing with the application of Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU). A special attention is paid to the most recent CJEU case law analyzing the distinction between the object and effect of the prevention, restriction or distortion of competition. Secondly, some significant State aid cases are dealt with, i.e. the cases related to the application of Article 107 TFEU. Although the CJEU case law has not recently undergone major changes in the competition law field, the article reflects the main trends towards the current jurisprudence and what challenges may be expected in the future.

The Court of Justice of the European Union (CJEU) is one of the institutions of the European Union, mentioned among the other institutions, such as the European Council, the Council (of Ministers), the Parliament and the Court of Auditors, in Article 13 of the Treaty on European Union (TEU). Its fundamental task is to ensure ‘that in the interpretation and application of the Treaties the law is observed’, according to Article 19 TEU, which also lays down in brief the Court’s structure, composition and jurisdiction. Articles 251–281 of the Treaty on the Functioning of the European Union (TFEU) develop the three elements mentioned in Article 19 and list the different actions to which the CJEU is open and the means of enforcement of its judgements. The Statute of the CJEU gives further details on the position of the judges and Advocates General (AG) of the Court of Justice (CoJ) and the General Court (GC), the way in which these courts are organized and conduct their business. The Statute is one of the Protocols attached to the TFEU and as such has treaty rank, but its provisions, except Title 1 on the status, nomination, obligations and loss of office of judges and Article 64, the provision on the language regime of the CJEU, can be modified by normal legislative procedure, that is to say by Council and Parliament acting together, on a proposal of the CoJ after consultation of the Commission or on a proposal of the Commission, after consultation of the CoJ (Article 281 TFEU). In some instances, the TFEU provides for special decision-making rules where the CJEU is concerned. Thus the Council may unanimously increase the number of Advocates-General (8) of the CoJ laid down in Article 252 TFEU at the request of the Court, and the Council must approve the Rules of Procedure of the CoJ, the GC and any specialised court. The CJEU consists of the Court of Justice (CoJ), the General Court (GC) and may also include specialized courts. The first two are mentioned explicitly in Article 19 TEU; specialized courts have to be created by the colegislators according to the same procedure as provided for the amendment of the Statute of the Court. Such specialized courts are created for hearing at first instance specific categories of cases, which may be defined by the type of action under which they are brought or by the area of Union law that they cover. They are ‘attached’ to the GC, and appeal from their judgements lies with the GC and is limited to points of law (Article 257 TFEU). The only specialized court ever created under these provisions is the EU Civil Service Tribunal (EUCST), which has been abolished as a consequence of the transfer on 1 September 2016 to the General Court of the jurisdiction over disputes between the European civil servants and the institutions for which they work. The elements that influence the legitimacy of the CJEU and its case law will be approached according to the general schedule of analysis used in this book. The analysis will focus on the CoJ and the GC with emphasis on the first. The EUCST will only sporadically be referred to.

This article deals with the fundamental procedural rights of companies that are targeted in the enforcement of Articles 101 and 102 Treaty on the Functioning of the European Union (TFEU) by the European Commission or the competition authorities of the EU Member States. The paper first provides a (non-exhaustive) list of such rights as applicable to the enforcement of Articles 101 and 102 TFEU by the European Commission, and explains the source of these fundamental rights in the EU legal order. The paper then examines the relationship between fundamental procedural rights and effective enforcement of Articles 101 and 102 TFEU. It argues that procedural rights often contribute to effective enforcement, but not always. The interplay between fundamental rights of legal persons and competition enforcement remains a balancing exercise, and this balancing exercise is not the same as in traditional criminal law. Finally, the paper examines the question whether or to what extent EU Member States can, for the enforcement of Articles 101 and 102 TFEU by their national competition authorities (NCAs), provide for a lower or a higher level of procedural rights than the level of fundamental procedural rights applicable to the enforcement of Articles 101 and 102 TFEU by the European Commission.

This chapter addresses the Treaty's provisions on the enforcement of EU law, particularly looking at Articles 258–260 TFEU (Treaty on the Functioning of the European Union). The European Commission's enforcement action, known as ‘infringement proceedings’, is set out in Article 258 TFEU. If the Commission proves an infringement has occurred, the Court of Justice of the European Union (CJEU) will issue a binding verdict that requires the Member State to rectify the breach: in other words, to amend its domestic laws until they are compliant with EU law. Article 260 TFEU makes clear, however, that the CJEU can only order ‘compliance’. Article 259 sets out a very similar process, rarely used, for Member State v Member State infringement proceedings. The chapter then considers the CJEU's development of the principles of direct and indirect effect and state liability, and explores the remedies for breaches of EU law. It also assesses the impact of Brexit on the enforcement of EU law.

Injunctions for Standard-Essential Patents in the European Union

Just before Christmas 2014, the Court of Justice of the European Union (CJEU) unexpectedly put a stop to the European Union's (EU) accession to the European Convention of Human Rights (ECHR). It declared the agreement on the accession of the EU to the ECHR to be incompatible with the specific characteristics and autonomy of EU law in Opinion 2/13. This Opinion reflects the increasing worries of the CJEU about the sometimes far-reaching case law of the European Court of Human Rights (ECtHR), which could hamper the effectiveness of EU law. This tension has become especially visible in the Area for Freedom Security and Justice in cases dealing with the Dublin Regulation and the European Arrest Warrant. While the CJEU has to balance the uniformity, primacy and effectiveness of EU law, and the upholding of the system based on mutual trust and mutual recognition with fundamental rights concerns, the ECtHR's sole objective is to guarantee the latter. CJEU judges expressed their concern that the ECtHR does not always take the particularities of EU law, such as mutual trust in the context of the Dublin system, sufficiently into account, because some Strasbourg judges are not familiar with them. There has also been growing uneasiness in Luxembourg with the intrusive case law of the ECtHR in relation to the preliminary reference procedure in Article 267 of the Treaty on the Functioning of the European Union (TFEU). This is because the ECtHR found violations of Article 6 ECHR in Dhahbi and Schipani for the failure of the highest Italian court to provide a statement of reasons for its refusal to request a preliminary ruling from the CJEU on the basis of Article 267 TFEU. Similar frustration exists in Strasbourg vis- a -vis the CJEU and especially Opinion 2/13, which was not received warmly. Dean Spielmann, former President of the ECtHR, stated that it was ‘a great disappointment’ and held that the ‘the onus will be on the Strasbourg Court to do what it can in cases before it to protect citizens from the negative effects of this situation’.Against this background, it is not surprising that the official contacts between the CJEU and the ECtHR were only resumed in March 2016, when a delegation from the ECtHR visited the CJEU.

Democracy and equality of citizens are the fundamental values of the European social and economic order. This axiological assumption is generally reflected in extensive legal regulations organizing the social and economic life in the European Union (EU). For the purposes of this chapter, a detailed analysis of those foundations intend to be limited to the manifestations of the democratic values in the Court of Justice of the European Union (CJEU) adjudication in the selected issues of the European antitrust law where, under private enforcement against practices violating the prohibitions of the European antitrust law, equal participation and citizen's access to the proceedings before the courts, based on the principle of freedom of choice of all concerned, are ensured.

The paper addresses the issue of self-employed platform workers’ access to collective labour rights from the perspective of international law (ILO) and supranational European law (EU and Council of Europe). In this regard, the paper addresses the right to collective bargaining, the right to strike and the collective right to information and consultation. The main finding is that at the current stage, the relevant international and European legal framework is not providing access of self-employed platform workers to all examined collective labour rights. In light of the analysed legal developments the binary divide “has fallen” (for those self-employed platform workers who fulfil the 2022 Guidelines criteria) regarding access to collective bargaining. Therefore, as argued in the paper, also access to the right to strike should be ensured for the latter platform workers due to the purposeful interconnectedness and inseparability of both rights. Nonetheless, the binary divide is remaining “firm” regarding access to collective information and consultation rights. The latter remain accessible (including considering the Platform Work Directive proposal) only to platform workers with a subordinate “worker” status. However, as argued in the paper, the possibility to drop the binary divide (at least regarding certain matters) also in relation to collective information and consultation rights (in the context of platform work) should be seriously considered.

The EU has an established history of public enforcement concerning antitrust infringements under what are now Articles 101 and 102 of the Treaty of the Functioning of the European Union (TFEU). Yet, until recently, this has not been true in respect of private compensatory damages actions in relation to the said articles. Hence, these actions are now seen as reinforcing the existing deterrent provided by pubic enforcement fines. This paper focuses upon the ongoing sea change that aims to enable and encourage compensatory damages claims in relation to harm caused by breaches of 101 and 102 TFEU. It reveals that both the Court of Justice of the European Union (CJEU) and the European Commission have played pioneering roles in advancing this sea change. It further asserts that, although the rulings of the CJEU have created a hybrid architecture that makes possible private actions in relation to the said breaches under Member state procedural laws before national courts, the architecture itself is problematic as it fails to guarantee that Member states’ procedural rules have a high degree of uniformity, thereby failing to guarantee a regulatory level playing field across the Union concerning the said damages actions. Moreover, not only is the architecture problematic, but it needed further development in respect of rules and requirements in several key areas, such as the right of evidential disclosure, the limitation period issue, collective redress and the quantification of harm, so as to facilitate and encourage claims. The Commission was aware of these concerns, and this paper explores its response. The issues could have been addressed by the establishment of a set of EU procedural rules which national courts would apply in the said actions but the Commission decided upon a different way forward. Working with the said hybrid architecture, and through the vehicle of the 2014 Directive on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union, the Commission has amended and created rules and requirements which will form part of Member states’ domestic procedural law—and therefore will be applied by national courts—in order to establish a more level regulatory playing field across the Union which should facilitate and encourage private compensatory damages actions for harm caused by EU antitrust breaches. Of course, a more level playing field means that differences will still remain. Moreover, it will be some time before the success of the Directive can be gauged, and further measures may be required in the future.

This paper aims to analyse collective labour rights of both “classic” selfemployed persons and economically dependent self-employed workers under the Spanish Statute of Self-Employed Workers (Ley 20/2007 del Estatuto del Trabajo Autónomo). The author applies comparative analysis and critical reasoning with a view to answering the questions: is the scope of protection wide enough, and can Poland draw a lesson from it? The paper presents evidence that demonstrates that among all self-employed workers, only economically dependent self-employed workers are granted the right to bargain collectively. However, findings suggest that in practice, collective bargaining is stymied mainly because it takes place only at the enterprise level, and because the number of economically dependent self-employed workers is minimal. The paper concludes that collective labour rights under the Statute of Self-Employed Workers could be better protected (especially as regards “classic” self-employed persons). On the other hand, however, in Poland, the lack of any criteria that would enable a diversification of the scope of collective rights granted to self-employed persons is subject to criticism. It appears that in some areas the legislator should differentiate the scope of protection. The criterion of economic dependence, which exists in Spanish law, could be successfully used for this purpose.

The lively debate about the right of gig workers to bargain collectively stems from the idea that European Union (EU) competition law treats this group of workers worse than it treats employees. Namely, it is common to argue that employees, unlike gig workers, are permitted to conclude collective agreements because they are not undertakings and, therefore, not subject to EU competition law. In sharp contrast, by analysing the EU notion of undertaking, this article demonstrates—and this is the first of its theses—that in the labour market, which is the market that should matter in relation to the effects of collective agreements, employees are as much undertakings as any other worker, such as gig workers or other self-employed workers. The article further maintains that the reason employees are currently allowed to bargain collectively, while other workers are not, is to be found not within competition law, but outside it. At present, employees’ collective agreements are exempt from the application of EU competition law because employees enjoy the right to bargain collectively, among other social rights, and because the Court of Justice of the European Union has (rightly) recognized that the protection of these rights must trump the protection of competition. Consequently, this article argues, as its second thesis, that if Articles 151–161 TFEU were interpreted so as to grant social rights to workers other than employees, the collective agreements of gig workers and other under-protected self-employed workers would be exempt from EU competition law, as are those of employees. At the same time, however, this paper recognizes that, in the absence of such an interpretative turn, antitrust legislators and policy makers could aid gig workers and other under-protected self-employed workers by excluding them and their collective agreements from the scope of application of competition law. This—and here is the third thesis of the article—would not force the interpretation of antitrust notions and rules and would thus not require antitrust authorities and courts to use competition law to pursue goals different from the protection of efficiency and innovation.

The Court of Justice of the European Union (CJEU) can be placed at the origins of the pan-European awakening of private enforcement of EU competition law. The CJEU has, in a steadfast and unwavering manner, advocated for the rights of victims of competition law infringements, elevating cartel damages proceedings from a rare sight to a well-established phenomenon. In its judgment Vantaan kaupunki v. Skanska Industrial Solutions Oy and others (Skanska), the CJEU ruled that the circle of persons liable for the harm resulting from an anticompetitive behaviour is to be determined according to the concept of undertaking as referred to in Art. 101 of the Treaty on the Functioning of the European Union (TFEU). In Sumal v. Mercedes Benz Trucks Espana (Sumal) the Court clarified under which circumstances distinct legal entities within a group of companies form one single undertaking and are thus to be made the defendant in cartel damages proceedings. The CJEU’s judgments in Skanksa and Sumal mark a certainly provisional climax in the evolution of private enforcement of EU competition law. This article aims to depict the conceptual backbone of both judgments and to explore possible consequences in regard to liability within groups of companies.

Since the European Commission announced its Green Deal in 2019, the debate as regards how European Union (EU) competition law could contribute to making Europe climate-neutral and “green(er)” has steadily increased. However, the discussion about whether aspects other than economic ones shall be considered within the assessment of a measure from a competition law perspective has indeed been going on much longer. Following the European Court of Justice’s (ECJ) landmark judgement in Wouters, for example, there is a strand in the case law where non-economic considerations were taken account of already at the level of Article 101(1) of the Treaty on the Functioning of the European Union (TFEU) itself. The debate on how to interpret Article 101(3) TFEU and the question whether improvements in economic efficiency shall be considered only or whether Article 101(3) TFEU is to be interpreted broadly and in line with the wider EU aims and objectives, such as, for example, social, environmental or sustainability aspects, serves as another example to this effect. Against this backdrop, this article shall provide an analysis of the Treaty competition provision of Article 101, and shed light on the question if, to what extent and on which legal basis environmental considerations and sustainability aspects, can be taken account of within the current competition law framework of the European Union. Hence, light shall be shed on the question whether our competition law toolkit is “fit and proper” to meet the challenges as imposed by climate change.

African RTAs are flexible legal regimes. These agreements are not designed to commit their members to scrupulous and rigorous adherence; rather they have been designed as flexible regimes of cooperation. If enforcement is not intended (in reference to African RTAs) a scarcity of formal trade agreement disputes should be no surprise. The European Union (EU) and its Treaty on the Functioning of the European Union (TFEU) and its predecessors has been hailed as the yardstick for Regional Trade Agreements (RTAs). The provisions of the TFEU have served as templates for RTAs across the world. Among the most influential of these provisions are those on Dispute Settlement Mechanism (DSM), centred on the Court of Justice of the European Union (CJEU).The CJEU has played a major role in the integration process of the EU through its proclamations of principles such as direct effect and the supremacy of community law. All the African RTAs have provided for DSMs and Regional Courts in their treaties that emulate the EU rule-based DSM and its CJEU. This paper appraises the paradox of the leading role played by the CJEU in European integration and yet its clones, amongst them the African Regional Courts, have failed to play a similar role in African regional integration. Taking the TFEU and the EU Court of Justice as benchmarks, the paper examines African RTAs' treaty provisions on DSM and African Regional Courts with their jurisprudence and evaluates their impact in regional integration in Africa. The paper finds that African RTAs' treaty provisions on implementation of integration, particularly those on sanctions for infringements, are weak and the impact of the African Regional Courts in the integration process is minimal.