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The Netherlands | CBA applicable to freelance musicians

FNV KIEM

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 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. Also, 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.

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