Employee-like Persons in Europe
- The Treatment of Economically Dependent Workers in the Labour Law Systems of EU Member States and in EC Labour Law

Abstract

1. Problem Scope

The thesis aims to provide a comprehensive examination of the treatment of so-called "employee-like persons" (i.e. workers who are economically dependent on the other party to the contract) in European Community labour law and in the labour laws of the EU Member States.
The first subject of this research project is the question whether or not employee protection provisions of European secondary law also cover the protection of employee-like persons. The European Community regulations and directives hardly ever extend their scope of application to economically dependent workers in express terms (one example of this exception to the rule are those directives dealing with health and safety at work). Most measures of European labour law either do not give an answer to the question whether they are applicable to other categories of workers than employees (e.g. directive on collective redundancies) or refer to the employment laws of the Member States as far as this aspect is concerned (e.g. directive on transfers of undertakings). The latter is the most common solution of this problem in European labour law. Therefore, the application of European labour law depends to a great extent on the scopes of application of the national labour laws. This is the reason why the second part of the thesis deals with the treatment of employee-like persons in the employment law systems of selected EU Member States (Germany, Austria, United Kingdom, France and the Netherlands). This comparison demonstrates to what extent the scope of European labour law differs from Member State to Member State even though the measures of EC labour law were taken in order to harmonize employment law within the European Union. Because of these differences the last part of the thesis examines whether the scope of European labour law could and should be extended in order to include employee-like persons: Are the institutions of the Community allowed to do so according to European primary law? Is such a regulation at Community level necessary or at least desirable? The first question that needs to be answered in this context is whether the notion "worker" in Artt. 136-145 European Community Treaty (ECT) – the articles which contain the Community´s competences regarding the field of labour law – also includes employee-like persons. Besides this major question there are also some other questions to be answered as far as the competences of the Community´s institutions are concerned. Futhermore, even if the institutions of Community are competent to regulate this issue, this still does not mean that they have to do so. Thus, the next problem to be solved is whether the Community is obliged to take measures. If this is not the case, the thesis will at least examine the aspects that support such a measure at Community level.

2. Methods and Selection of Countries Examined

The questions posed above are answered by employing those methods that are generally used in law in order to ascertain the content of the law. The emphasis is set on construing provisions of European Community law. In this regard, the decisions of the Court of Justice of the European Communities and the documents published by other Community institutions play a major role.
The second part of the thesis is a comparative legal study which serves the purpose to give reasons for extending the scope of European labour law. Therefore, those Member states were chosen that are best fit to demonstrate how much the national labour laws differ from each other with regard to their scopes. The five countries examined also show that there are different ways of dealing with employee-like persons (they can be seen as employees, some provision can be ordered to apply to them, and so on). They therefore offer a wide range of solutions to the responsible institutions of the Community to choose from.

3. Reference to the European Social Model

One of the main features of the "European Social Model" is that it relies on rather extensive employee protection law in order to avert or at least alleviate those risks which usually are connected to dependent employment relationships (those risks are, for example, loss of income due to illness, loss of the ability to secure one´s livelihood due to loss of employment). During the past two or three decades new forms of employment contracts have been developed by employers in order to avoid the costs connected to the application of employee protection law. This research project demonstrates how courts and legislators of the Member States have responded to those tendencies. It therefore shows whether in regard to this small aspect of the European Social Model the model is actually eroding. This topic is dealt with in that part of the thesis which examines the scopes of the national labour laws. The thesis – as mentioned above – aims to find out wether measures could be taken at EC level. It therefore also deals with the legal framework at EC level to preserve and develop the European Social Model.