The Hague Court of Appeal gave its ruling on 1 September 2015, after analysing the reply of the CJEU to its two prejudicial questions concerning the enforceability of article 101 of the TFEU to a collective agreement regulating the conditions of employment for replacement orchestra musicians engaged under a service provision contract.
In its ruling of 4 December 2014, the CJEU judged that
• Musicians working as service providers and carrying out for an employer the same tasks as their (permanent) salaried colleagues could be considered as “bogus self-employed” if there was a subordination link in their working relationship;
• Consequently, since article 101 (1) of the TFEU prohibited any agreement on prices between service providers, this article did not apply to them and entering into a collective agreement between social partners covering such workers was legal.
The Court judged that freelance musicians were bogus self-employed insofar as their work relationship reflected a link of subordination
In its analysis, the Court of Appeal noted that the incriminated replacement musicians
• Were peforming the same tasks as their incumbent colleagues,
• Were playing their score alongside such colleagues,
• Had to comply with a strict rehearsal and concert planning,
• Had to follow the orchestra conductor’s instructions and
• Could not be replaced by freely designating other musicians to this end.
It then judged that such musicians actually were bogus self-employed within the meaning of the CJEU ruling, insofar as their work relationship reflected a link of subordination.
The Court was nevertheless careful to point out that its analysis was limited to the case in question and did not cover the global situation of non-salaried workers in other sectors of activity. In addition, since the procedure did not cover a request for requalification as an employment contract, the Court of Appeal restricted itself to saying whether the freelance musicians in question were bogus self-employed or not.