EU Limits for the Personal Scope of Employment Law

EU Member States are obliged to protect all labourers who fall within the scope of EU labour law. The Member States are free, in principle, to extend the scope of protection by applying a worker concept which includes the economically dependent self-employed.

EU free movement principles restrict this freedom of the Member States to apply their own worker concepts. The ECJ makes this freedom almost illusory through a strict application of the subordination criterion for the definition of the concept of ‘worker’, as laid down in its Lawrie-Blum case law. If the ECJ would develop a positive and narrow definition of the concept of self-employed persons, then the Member States would retain the freedom which is necessary to extend adequate protection to the economically dependent self-employed, and to combat bogus self-employment. A few judgments of the ECJ contain materials for the development of such a definition of self-employed persons.