In case C-692/19 on 22 April 2020, an UK tribunal requested the Court for a preliminary ruling on the interpretation of the provisions of Directive 2003/88/EC concerning certain aspects of the organisation of working time, so as to include or not the self-employed worker that claimed to be classified as a “worker” in its proceeding against a platform company in the UK.

The Court stated that Directive 2003/88/EC does not contain a definition of worker and therefore it is for the national judge to define whether the case concerned a worker or a self-employed worker. However, since it had already ruled on that concept, the Court underlined that: “27. […] It is for the national court to apply that concept of a ‘worker’ for the purposes of Directive 2003/88, and the national court must, in order to determine to what extent a person carries on his activities under the direction of another, base that classification on objective criteria and make an overall assessment of all the circumstances of the case brought before it, having regard both to the nature of the activities concerned and the relationship of the parties involved.

28. […]

29. Thus, the essential feature of an employment relationship is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration”.

The Court then confirmed its jurisprudence by specifying that the classification of an “independent contractor” under national law does not includes cases of bogus self-employed, that are therefore included in the scope of Directive 2003/88/EC.

It concluded by saying that the Directive on working time does not apply to this specific case, where “43. […] the independence of a courier, such as that at issue in the main proceedings, does not appear to be fictitious and, second, there does not appear, a priori, to be a relationship of subordination between him and his putative employer”.

“46. […] However, it is for the referring court, taking account of all the relevant factors relating to that person and to the economic activity he carries on, to classify that person’s professional status under Directive 2003/88”.

This Order confirmed the clear distinction in the EU jurisprudence between “employees” and genuine self-employed workers or “undertakings” for which there should be a double test both with regards to subordination (labour law) and economic dependence (competition law) to exclude the possibility that they be bogus self-employed (ECJ, FNV Kunsten Informatie en Media v. Staat der Nederlanden, C-413-13).