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In advanced market economies in Europe and North America, a large and growing percentage of the workforce is self-employed. This group earns a contractual fee from clients, rather than a wage or salary from employers, one form of the so-called "Uberization" of the labor market. Through an analysis of the Court of Justice of the European Union's (CJEU) rulings, this Article explores whether minimum fees for the self-employed could be implemented without infringing European Union (EU) competition law. In particular, it lays out four possible legal mechanisms – what the paper dubs "U-turns" – that swerve around the social harms of Uberization while maintaining its social benefits. The first three are targeted at the CJEU's existing precedents. The fourth is bolder and urges the Court to adopt concepts better adapted to changing labor market conditions.

The Article concludes that the first U-turn – concocting an association of self-employed enterprises as a shield against competition law – is not promising as a general strategy. It could, however, succeed in particular occupational contexts if the association can prove that minimum fees directly promote the proper practice of the occupation. The second U-turn – adopting minimum fees for the self-employed in a collective bargaining agreement – may succeed if employee associations are able to prove that minimum fees are necessary to avert so-called "social dumping" or "injurious competition, " although the Court has yet to reach that precise question. The third U-turn – fee-setting by government bodies – may be the most reliable, so long as the official fee-fixing body is careful to maintain its independence from self-interested private associations of the self-employed. The fourth U-turn is the most compelling, albeit the most transformative. It urges the Court to enrich its reasoning by drawing on the United States (US) Supreme Court's concept of "labor group," and by permitting combinations of employee associations and self-employed "labor groups" to set minimum fees unilaterally or bilaterally. By adopting the intermediate category of "labor groups," the CJEU would abate its rigid dichotomy between "undertakings" and "employees" and would respond constructively to the Uberized economy through the Court's recent commitment to realist interpretive methods. This course would achieve the proper balance between the EU's social and economic policies.


European Law | Labor and Employment Law | Law