Rethinking the Lawrie-Blum Doctrine of Subordination: A Critical Analysis Prompted by Recent Developments in Italian Employment Law

Abstract

This paper takes as its starting point the European Court of Justice (ECJ) case law dealing with the concept of ‘worker’ for the purposes of Article 39 of the EC Treaty (free movement of persons). In particular, the leading case, Lawrie-Blum v. Land Baden-Württemberg, provides the classic definition of worker, based on the criterion of the ‘performance of services for and under the direction of another person’, in short ‘subordination’, a concept that appears to have no parallel in English labour and employment law. It is argued that a general, standard EU-law notion of employed persons or workers, based on the concept of subordination, is lacking. The paper examines the connections between para-subordinate workers in Italy and employee-like persons in Germany (Arbeitnehmerähnliche Personen), with comparable workers in the UK, para-subordinate workers in France, Portugal and Spain and dependent contractors in Sweden, in support of the view that everywhere in Europe there is a sort of middle category. In the UK it is a statutory category including both employees and certain self-employed workers, whereas in Germany, Italy and France the middle category consists of self-employed workers and replaces personal subordination with a test based on the economic dependence of the worker on the enterprise. To conclude, the author puts forward the view that Lawrie-Blum is an insufficient basis for the notions used in EU-law dealing with self-employed persons, contracts of employment and salaried workers.