Guidelines on collective agreements regarding the solo self-employed persons: another (controversial) immunity to EU competition rules

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The coexistence between collective labour rights and competition rules has always been complex in the European legal order. This tension is exacerbated when collective agreements of self-employed workers, considered restrictive agreements of competition under Article 101 TFEU, come into question. However, factual reality shows that self-employed workers are frequently in a position of significant contractual weakness in the labour market and economic-organisational dependence in the employment relationship. Therefore, promoting the collective dynamism experienced in many Member States, the European Commission adopted the Guidelines granting antitrust immunity to collective agreements signed by certain categories of individual self-employed workers. This act of soft law represents the first important recognition of collective protections beyond subordination. However, there is evidence of critical issues and gaps in content that limit its expansive scope. Finally, reflection is proposed on the appropriateness of legitimising the collective agreements of small entrepreneurs in a situation comparable to the self-employed workers, due to their position of weakness with respect to the negotiating counterpart. The rationale proposed in the commentary is based on the real need for social protection arising from the risk of abuse of dependency in unbalanced inter-private relations.