The Court of Justice’s recent judgment in FNV Kunsten Informatie en Media Case v Staat der Nederland C-413/13 EU:C:2014:2411 is the latest in a line of cases that exclude collective agreements from the application of EU competition law and in particular from Article 101(1) TFEU.
In this case, there was a rather peculiar twist in the facts which lead the Court to adopt a cautious approach. It led the Court to distinguish between “workers”, “self employed” persons who are usually considered to be “undertakings” and “false self employed” who are more like workers.
A trade union representing musicians negotiated a collective agreement with an organisation representing orchestras in the Netherlands. Not only were salaried, employee musicians covered by the agreement, but it was negotiated on behalf of independent, self employed musicians also. Thus the Court was faced with the question whether a provision of a collective labour agreement, which sets minimum fees for self-employed service providers who are members of one of the contracting employees’ organisations and perform for an employer, under a works or service contract, the same activity as that employer’s employed workers, does not fall within the scope of Article 101(1) TFEU.