Economic Dependence as a Criterion for the Protection of the Self-Employed under EU Law and in Selected Member States

: This paper presents the cornerstones of the conceptual distinctions necessary to map out a separate category of workers, namely “economically dependent self-employed workers” (who fall between dependent subordinated employees and independent self-employed entrepreneurs) from the perspective of the EU law and the laws of selected Member States. The author considers how the economic dependency of self-employed workers should be defined, which method(s) of protection should be applied to these workers

Review of European and Comparative Law | 2024 Vol.56, No. 1 and the search for more and more flexible forms of employment. 1 According to data published by the OECD, the average level of self-employment in all European Union Member States in 2021 was 15.27% of the total workforce 2 and has been gradually increasing over the past few years.The highest level of self-employment in the European Union in 2021 was recorded by the OECD in southern European countries (Greece -31.82%,Italy -21.83%), while the lowest in countries such as Latvia (12.98%),France (12.61%),Hungary (12.51%),Austria (11.91%),Lithuania (11.63%),Sweden (10.60%),Luxembourg (10.23%),Denmark (8.84%), and Germany (8.75%). 3According to OECD data, in 2021, based on the statistics presented above, Poland's level of self-employment significantly exceeds the EU average and amounts to 19.73%.The largest share of self-employment is recorded in the service sector, where about 60% of employees are gainfully self-employed. 4 The development of modern technologies, computerization, and digitization undoubtedly contribute to the further spread of self-employment in the EU.This has resulted, among other things, in the expansion of platform work, which is very often provided in self-employment conditions.Currently, as many as 11% of EU citizens work through online platforms, and for three million people, it is a stable source of income.Currently, more than 28 million people in the EU, usually self-employed, work through digital platforms, and the European Commission estimates that this number will reach 43 million in 2025. 5he widespread use of self-employment in the EU, in which gainfully employed persons very often operate in conditions similar to those of employees (especially in conditions of economic dependence on 1 For more information, see: Tomasz Duraj, "The Future of Civil Law Employment Relations, " Acta Universitatis Lodziensis.Folia Iuridica 88 (2019): 5 et seq. 2 "Self-Employment Rate, " OECD, accessed March 10, 2024, https://data.oecd.org/emp/self-employment-rate.htm#indicator-chart. Ibid.

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Self-employment is most common in construction, transport, trade, business, hospitality, gastronomy, IT, professional and scientific activity, health care, finance, and insurance.the contracting entity), has forced us to reflect on the necessity of extending protection to this category of contractors, which until recently was reserved only for employees.This is important because work provided based on self-employed falls outside the scope of labor law regulations, which only govern work based on dependent employment (nowadays often referred to as voluntarily subordinated work).It is a type of arrangement in which a worker (employee) undertakes to perform, personally and in exchange for remuneration, activities of a specified type for the client (employer) and under the employer's direction at a place and time designated by the employer and at the employer's risk. 6In contrast, a self-employed worker performs work under conditions of independence, autonomy, and non-subordination vis-à-vis the client (in particular with regard to the manner in which it is carried out) and on behalf of and at the risk of the worker rather than the client. 7onsequently, self-employed workers in many EU countries are, as a rule, not eligible for the statutory protection guaranteed to employees under labor law.Generally, self-employed workers enjoy no regulatory protection regarding their life and health, remuneration for work, employment permanence, maximum working time standards, daily and weekly rest time, paid time off and other paid breaks, or collective rights.
The problem is that self-employed workers, in particular those providing their services personally to only one client, are usually heavily dependent on this client, who -taking advantage of the dominant negotiating position -tends to impose unfavorable working conditions.This dependence is very different from the subordination of an employee to the employer.It is multifaceted and manifests, among other things, by economic dependence if work for a given client is the sole (main) source of income; supervision and oversight by the client; accountability of the self-employed worker for the results of the work, potentially resulting in cuts to remuneration or termination of the contract; elements of subordination in terms of place and time of work, and work order and organization.While the core nature of the relationship differs from the subordination of an employee to the employer, 8 the situation of self-employed workers resembles that of employees in numerous areas and to a significant degree, thus generating the need for extending statutory protection to these workers. 9This is also reflected in international law, which already guarantees these workers far-reaching standards of protection at work, often at a level comparable with the protection enjoyed by employees.This is particularly clear in the standards enacted by the United Nations and the International Labour Organization, which issue protective regulations covering all workers (not only employees), regardless of the type and legal form in which they provide work, very often using the term "worker" in a broad sense in English (and travailleur in French).The protection guaranteed under international law to these workers covers, in particular, life and health, dignity, non-discrimination, equal treatment in employment, remuneration for work, childcare, leisure, and collective rights. 10his issue has gained recognition both at the level of the European Union and in several Member States, including Spain, Germany, and Italy.A new category has consequently emerged: economically dependent self-employed workers.These workers are in an intermediate position between employees and truly independent entrepreneurs. 11The overarching 8 The economic dependency of the self-employed worker in relation to the client may not, in any case, be conflated with the subordination of an employee in an employment relationship.For more information, see: Tomasz Duraj, "Zależność ekonomiczna jako kryterium identyfikacji stosunku pracy -analiza krytyczna, " Praca i Zabezpieczenie Społeczne, no.6 (2013): 8 et seq.9 See: Tomasz Duraj, "Funkcja ochronna prawa pracy a praca na własny rachunek, " in Ochronna funkcja prawa pracy.Wyzwania współczesnego rynku pracy, eds.Anna Napiórkowska, Beata Rutkowska, and Mikołaj Rylski (Toruń: TNOiK, 2018), 37 et seq.; Tomasz Duraj, "Protection of the Self-Employed -Justification and Scope, " in Pravni Rozpravy, New Features and Law (Hradec Králové: Magnanimitas, 2018 objective of separating this category of self-employed workers is to ensure that they enjoy a certain scope of protection (smaller than employees) while not being considered a subset category of employees.
This paper aims to outline the main components of this concept, as reflected in the legal regulations in selected EU Member States.Key issues include the definition of economic dependency of the self-employed workers, the method(s) of providing protection, and the scope of guarantees that should be extended to this category of workers.The conclusions will serve as comments de lege ferenda for the Polish legislator, given that the Polish law currently contains no separate provisions applicable specifically to economically dependent self-employed workers.

Economic Dependency as a Criterion for the Protection of the Self-Employed in EU Law
At the EU level, the first indications of the emerging need to designate a separate category of economically dependent self-employed workers, who require protection due to the similarity between their working conditions and those of employees, can be traced back to as early as 1999.At that time, a group of academics led by Alain Supiot submitted a report to the European Commission, drawing attention to the existence of a new group of workers who could not be classified as employees but were in a situation of economic dependence on the entity contracting them to work.The authors of the report recommended that these workers should be able to benefit from the social rights since, due to the economic dependency, they remain in a "grey area" between dependent employment and self-employment, deprived of protection extended to employees under the labor law regulations.The problem is that, so far, no regulation at the EU level has established the category of economically dependent self-employed workers with a specific vested protection standard.Even more alarmingly, no uniform EU definition of self-employment exists.The term is sometimes conflated with freelancing, while at other times denoting all individuals who operate an independent business (whether or not they employ other workers).The European Commission has been arguing for years for greater clarity in the legal definitions of employment and self-employment in the Member States.The above-cited green paper (2006) recognizes that the absence of an EU-wide definition of self-employment can cause problems, particularly in situations involving cross-border work and the supply of services. 15imilarly, the EESC has noted on several occasions that, despite the efforts of the Member States, no precise definition of the difference between employees and self-employed workers has been developed.When considering the notion of the economic dependence of self-employed workers at the EU level and in the legislation of selected Member States, the focus should be on natural persons operating as service providers without the option of hiring employees or using hired contractual non-employee labor, personally providing work on a B2B basis, to either one client or a few clients, over an extended period, in a relationship of dependence triggered by the fact that a significant portion of these workers' income comes from that single or those few clients. 17This is the direction followed by Adalberto Perulli, who (in a report on economically dependent employment prepared for the European Commission 18 ) argued that a possible avenue of providing protection for self-employed workers is to establish a separate category of economically dependent self-employed workers, situating them between the categories of dependent employees and the typical self-employed entrepreneurs.Perulli argues the worker's economic dependence would consist in providing services to only one client (or a small number of clients) with no direct contact with the market, and the work results would enter the market not directly but rather intermediated by that client.Unable to spread the inherent business risk over relationships with various clients, the self-employed worker would have no economic independence (autonomy).Moreover, in Perulli's model of economically dependent self-employed work, an important feature is also the obligation to provide work personally without the help of dependent workers. 19espite the absence of EU regulation establishing the category of economically dependent self-employed workers, there are two instances where, at the EU level, a direct reference is made to economic dependence; in both cases, it is interpreted in a manner somewhat similar to that outlined above.
The first instance is the above-cited EESC opinion dated January 19, 2012 on the abuse of the status of self-employed, in which the EESC notes the criteria that contribute to making a clear distinction between bona fide self-employed people working on their own account and sham 17 See also: Musiała, "Prawna problematyka świadczenia pracy, " 69-71.self-employed.In line with this opinion, when considering the employment status of a person who is nominally self-employed and is prima facie not considered an employee, it should be presumed that there is an employment relationship and that the person for whom the service is provided is the employer if at least five (out of a total of eight) criteria are satisfied.In terms of economic dependency, the crucial criterion is that the worker depends on a single client for at least 75% of income over one year.Another important criterion is that the worker cannot subcontract the work to other persons (to substitute for the worker).These criteria clearly point to a similarity with subordinated, dependent work.
The second instance of a direct reference at the EU level to the economic dependency of self-employed workers appears expressis verbis in Guidelines on the application of Union competition law to collective agreements regarding the working conditions of solo self-employed persons (dated 9 December 2021, issued by the European Commission). 20The Guidelines stipulate that the situation of these workers resembles that of employees.As a result, collective agreements covering these workers are not in breach of Article 101 of the Treaty on the Functioning of the European Union 21 if the self-employed workers offer services solely or primarily to a single counterparty, which puts them in a situation of economic dependence.The Commission considers that a solo self-employed person is in a situation of economic dependence where that person earns, on average, at least 50% of total work-related income from a single counterparty over a period of either one or two years, meaning that the worker is not an independent player on the market and is instead dependent on the client and integrated into the business of that client. 22n order to clarify the notion of economic dependency as a criterion for the protection of self-employed workers, it is important to reference specific legal regulations in force in the Member States.Spain has the broadest regulation in this respect, having adopted the act 20/2007 of 11 July 2007 -Self-Employment Act (hereinafter LETA), setting out the scope of protection for this category of workers. 23In LETA, the Spanish legislator established a separate category of economically dependent self-employed workers, to whom the law now guarantees privileges and rights previously reserved exclusively for employees.According to Article 11(1) LETA, economically dependent self-employed workers are defined as those who carry out economic or professional activities for profit, on a regular basis, personally, directly, and predominantly for the benefit of a natural or legal person (client), and who are economically dependent on that client, receiving from that counterparty at least 75% of their income from their work, business, or professional activities. 24This refers to the full scope of income (monetary or in-kind), including income that could have been earned for work as an employee for another client, an employer, or even the principal client.A self-employed worker's economic dependence is verified via an income certificate as declared to the fiscal authority.Any party trying to challenge the data in this certificate bears the burden of proof, and the court may conduct its own evidentiary proceedings, too.In addition to the crucial condition of 75% of income generated from a single client, the Spanish legislator has introduced a number of additional conditions that must be met cumulatively in order for a worker to qualify as an economically dependent self-employed worker (Article 11(2) LETA).These include (1) no responsibility for hired employees and no ability to subcontract the work, in part or in its entirety, to third parties, neither for the primary client nor for other clients; (2) operating in a manner differing from hired employees of the primary client; (3) owning separate (independent of the primary client) production and material infrastructure necessary to carry out the work, if it is economically significant in the operations of the worker; (4) operating following the worker's own organizational rules but taking into account any technical instructions from the primary client; (5) receiving remuneration that is conditional on the result of the work (outcome-based remuneration), under the agreement with the primary client and after the latter has assumed the risk inherent in the work. 25This set of criteria has not worked out well in practice.Due to the restrictive nature of the regulation and pervasive casuistry, the number of self-employed workers who enjoy the protective guarantees provided by LETA is negligible.Of all workers who are, in reality, economically dependent -a number estimated at about 1,200,000-only about 10,000 enjoy the TRADE status (trabajadores autónomos económicamente dependientes): less than 0.33% of all self-employed workers and less than 0.05% of workers in Spain in general. 26hese figures clearly demonstrate that the significance of this attempt at legal regulation of the category of economically dependent self-employed workers has been marginal. 27erman law has no comprehensive regulation concerning economically dependent self-employed workers.However, the legislator establishes this category of workers as a subcategory of the self-employed, with a view to offering these workers certain specific types of protection; 28 this is labelled as the category of "employee-resembling persons" (arbeitnehmerähnliche Personen).No definition of the term is provided. 29Yet, to offer to these "employee-resembling persons" the right to enter into a collective agreement, 25 For more information, see: Tyc, "Self-Employment in Spanish Law, " 170 et seq.; Esther Sánchez Torres, "The Spanish Law on Dependent Self-Employed Workers: A New Evolution in Labor Law, " Comparative Labor Law and Policy Journal 31, no. 2 (2010): 231 et seq. it is assumed they are economically dependent if the work primarily for one client generates, on average, more than 50% of income (Tarifvertragsgesetz of 9 April 1949, § 12a 30 ). 31 It is sometimes argued in this context that economic dependence should be set against a background of relationship with one client, defined by time or income. 32The law itself makes no reference to specific numbers, but case law suggests that a self-employed worker does not qualify for this status if the income generated outside the relationship with the primary client allows the self-employed worker to be independent. 33he Italian legislator has addressed the issue of protection for self-employed workers by adopting, on 22 May 2017, the act (no.81) on the work of self-employed persons. 34The act applies to contracts regulated by the Italian Civil Code, namely, the contract for the performance of specific work and the contract for the provision of services (Articles 2222-2238).This pertains to cases in which a person undertakes to provide work or services in exchange for remuneration, primarily personally, without subordination to the principal (self-employment). 35Instead of an income threshold, the Italian legislator invokes the "criterion of coordinated and permanent cooperation". 36There are two legal institutions in Italian law: "cooperation organized by the principal/client" (collaborazioni organizzate dal committente; lavoro etero-organizzato) and "coordinated cooperation organized by the collaborator" (collaborazioni coordinate organizzate dal collaboratore), where the "collaborator" is the party accepting the work (within 30 Uniform text of 25 August 1969, BGB I, 1323.31   There are also other laws that pertain not only to employees but also to persons with a status resembling that of employees; these laws are listed in Frank Bayreuther, Sicherung der Leistungsbedingungen von (Solo-) Selbständigen, Crowdworkern und anderen Plattformbeschäftigte (Frankfurt: HSI-Schriftenreihe, 2018), 18, 25. the framework of cooperation). 37Another notable regulation is Article 3(4) of the act (no 81) on the work of self-employed persons, which stipulates that Article 9 of the act of 18 June 1998 (no 192 38 ) on the abuse of economic dependence applies mutatis mutandis to the relationships governed by that act (no 81).According to this Article 9, economic dependence occurs when an undertaking is able to establish, in its commercial relations with another undertaking, an excessive imbalance of rights and obligations.Economic dependence is assessed by considering the extent of the genuine capacity of the abused party to find satisfactory alternatives on the market. 39

Method and Scope of Protection for Economically Dependent Self-Employed Workers in EU Law and in Selected Member States
Unquestionably, self-employed persons who work under conditions of strong economic dependence from a client that can use their greater negotiating power to unilaterally impose unfavorable contractual provisions must be granted -just like dependent, subordinated employees 40 -a broader range of protection than self-employed persons who work under conditions of full autonomy.The Member States' legislation uses two main methods of applying protective regulations to economically dependent self-employed workers.
The first method is labor law expansion, whereby labor law provisions that create certain rights and privileges for employees are also applied to economically dependent self-employed workers, mutatis mutandis. 41This method is used in Germany, where "employee-resembling persons" are covered by regulations otherwise restricted to subordinated employees (to guarantee certain specific rights).This approach is evident, for instance, in 37 For more information, see: Tyc, "Self-Employment in French and Italian Law, " 194 et seq.

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Disciplina della subfornitura nelle attività produttive.Gazzetta Ufficiale, 22 June 1998, no.143.39 Ibid., 196-7.40   It should be noted here that while dependent, subordinated employees are covered by statutory protective guarantees, self-employed persons are subject to a civil law regime that shapes their working conditions based on the principle of freedom of contract and freedom to shape mutual relations, which gives the economically stronger entity a dominant negotiating position and an almost inorganic capacity to unilaterally impose contractual provisions.

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A. Ludera-Ruszel favors this method due to the similarity of forms of relationships in which work is provided; Ludera-Ruszel, "Samozatrudnienie ekonomicznie, " 56. the German law on collective agreements (Tarifvertragsgesetz of 9 April 1949), which expands the scope of the employees' right to enter into collective agreements to the category of arbeitnehmerähnliche Personen 42 ; Tarifvertragsgesetz 12a allows these self-employed workers to organize and to enter into certain types of collective agreements. 43It also grants them the freedom to engage in industrial action as long as it does not violate cartel law. 44he second method is the establishment of new, separate legal solutions, creating new norms based on the provisions of the labor law dedicated specifically to economically dependent self-employed workers to fully consider the specificity and differences in the nature of work provided under the conditions of working on the worker's own account and at the worker's own risk. 45This method is behind Spain's LETA, which not only defines in detail the category of self-employed workers (including those workers who are economically dependent on one primary client) but, above all, comprehensively and systemically standardizes the status of this group of workers, including in particular their fundamental rights and obligations, as well as the form and duration of the contract under which they provide work. 46he Spanish legislator created a separate legal regime, which includes a list of individual and collective rights and privileges applicable to this category of workers.A distinction was also made between rights guaranteed across the entire category of self-employed workers, on the one hand, and the (much more extensive) rights reserved exclusively for the economically dependent self-employed workers who, given the similarity of their situation to that of employees, should enjoy more far-reaching protection.It is important to note here that the Spanish legislator, in principle, has excluded 42 In German anti-discrimination law, the protective provisions for dependent, subordinated employees are also extended to persons with a status resembling that of an employee.See: Rolf Wank, "Antidiskriminierungsrecht im Selbständigenrecht und im Gesellschaftsrecht, " in the issues of self-employment from the general scope of labor law.Under Article 3(3) LETA, self-employment falls outside the scope of labor law, except where the law explicitly states otherwise. 47he scope of statutory protection for economically dependent self-employed workers at the EU level and in individual Member States should arise from a combination of three key factors.Firstly, there is the need to bring the minimum level of protection into line with international law standards outlined in the UN and ILO instruments.At present, these standards guarantee protection for all workers (not only for employees), regardless of the type and legal form under which they provide work.This protection includes the protection of life and health, dignity, non-discrimination and equal treatment in employment, remuneration for work, childcare, leisure, and collective rights.Secondly, the scope of statutory protection of economically dependent self-employed workers should reflect the constitutional standards adopted in the Member States.These constitutional standards set a certain minimum threshold of rights pertaining to the conditions under which work may be provided.Thirdly, the socio-economic situation of individual Member States must also be considered since they differ significantly in their wealth and economic development levels.
De lege lata, there is no legislation in the EU that would harmonize the scope of minimum protection guaranteed to economically dependent self-employed workers (or even, more broadly, to those who provide work for remuneration outside an employment relationship).Hence, the emerging regulatory efforts differ from one Member State to another.In Spain, LETA guarantees self-employed workers a broad, two-tiered scope of protection, purpose-designed to reflect the realities of work provided in this mode. 48he Spanish legislator grants all self-employed workers the right to work and the right to freely choose a profession or craft; the freedom of economic initiative and the right to free competition; the right to intellectual property over one's works or other protected objects; the right to equal treatment and non-discrimination, including on the grounds of disability; the right to respect for privacy; the right to adequate protection from sexual harassment 47 Cf.Manuel Carlos Palomeque López, "Trabajo subordinado y trabajo autónomo en el ordenamiento laboral español, " Revista Gaceta Laboral 10, no. 1 (2004): 63.

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For more information, see: Tyc, "Self-Employment in Spanish Law, " 173 et seq.and harassment on grounds of sex or any other personal or social grounds; the right to vocational training and retraining; the right to physical integrity and adequate protection of safety and health at work; the right to receive agreed consideration for the professional performance of their activities in a timely manner; the right to reconcile professional activities with personal and family life, including the right to suspend activities in the event of birth of a child, joint custody of a child, risks during pregnancy, risks during breastfeeding and adoption, and care for adoption and foster care; the right to sufficient social assistance and benefits in the case of need accordingly; the right to the individual exercise of activities arising from their professional activity; the right to effective judicial protection of their professional rights as well as access to out-of-court dispute resolution; the right to associate in a trade union or professional association of one's choice under the conditions set out in the relevant legislation; the right to associate and form, without prior authorization, specific professional associations of self-employed persons (asociaciones profesionales específicas de trabajadores autónomos); the right to take collective action to defend one's professional interests.However, when it comes to economically dependent self-employed workers, LETA offers more far-reaching guarantees. 49These include, in particular, the right to transparent rules for the conclusion of contracts to provide work (contrato para la realización de la actividad profesional), including the requirement of the written form, registration, presumption of indefinite duration, and invalidity of prohibited clauses; the right to participate in collective bargaining leading to agreements to protect the workers' collective work-related interests; 50 the right to rest; the right to stop working on reasonable grounds; the right to have the protection of permanence of employment with a guarantee of compensation; the right to settle disputes before an employment tribunal; the right to strike.
In contrast, the legislator offers no significantly better protection to economically dependent self-employed workers in Germany.Beyond 49 Ibid., 177 et seq.50   These are agreements between associations representing economically dependent self-employed workers and businesses for the benefit of which the work is carried out.The agreements define, in particular, the working conditions of these self-employed workers (but not exclusively).They are not prescriptive in nature and are only binding on the parties to the agreement.
Review of European and Comparative Law | 2024 Vol.56, No. 1 workplace health and safety regulations, statutory periods of notice for the self-employed (621 BGB and 649 BGB 51 ), and protection against discrimination and unequal treatment, the legislator grants to the arbeitnehmerähnliche Personen the additional right to organize and to enter into certain collective agreements (12a TVG), and also to engage in industrial action, as long as it does not violate cartel law. 52n the face of inaction by EU bodies, these national practice and regulation disparities lead to increasing divergence between Member States.As a result, in some Member States, economically dependent self-employed workers enjoy no protection, leading to a precarious employment situation. 53The relevant EU authorities are now alert to the need for legislation at the EU level to introduce a minimum protection standard for self-employed workers (or, more broadly, non-employees), but this has so far only applied to the digital platform sector.Furthermore, these efforts involve the legally questionable mechanism of presumption of an employment relationship in platform work. 54

Protection of Economically Dependent Self-Employed Workers:
Recommendations for the Polish Legislator My analysis of the present issues is conducted as part of the international research project financed by the Polish National Science Centre, "In Search of a Legal Model of Self-Employment in Poland.A Comparative Legal Analysis".This paper presents a subset of findings from this project.Following 51 Bürgerliches Gesetzbuch (1896).

52
For more information, see: Wank, "Self-Employment in Germany and Austria, " 156 et seq.

53
The precarity is associated with the absence of seven employment guarantees, which include the following: labour market security, employment security, job security, work security, skill reproduction security, income security, representation security.This follows Guy Standing, The Precariat: The New Dangerous Class (London: Bloomsbury, 2011), 18, 27.

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At present, at the EU level, work is in progress on the proposal for a directive of the European Parliament and of the Council on improving working conditions in platform work.
The directive aims to achieve this objective by ensuring that the employment status of those doing platform work (especially the self-employed) is correctly defined.The proposal envisages the introduction of a presumption of an employment relationship, which (the European Commission estimates) would ensure the employment status for up to 4 million people currently performing platform work outside an employment relationship.A broader analysis of this issue is beyond the scope of this paper.
Review of European and Comparative Law | 2024 Vol.56, No. 1 up on the discussion in previous parts of the paper, I will address the Polish regulatory efforts in this area. 55t present, self-employed workers under Polish law enjoy the following rights: protection of life and health, which covers all self-employed persons providing work in an establishment of an entity organizing it; 56 prohibition of discrimination and the requirement of equal treatment in employment; 57 guarantee of minimum wage and the protection of remuneration for work; 58 protection of maternity and parenthood; 59 and the right of association in trade unions, which consequently leads to a wide variety of 55 "International Research Project: In Search of a Legal Model of Self-Employment in Poland.Comparative Legal Analysis, " University of Lodz, accessed February 5, 2024, https://www.wpia.uni.lodz.pl/en/struktura/centra-naukowe/centrum-nietypowych-stosunkow-zatrudnienia/international-research-project-in-search-of-a-legal-model-of-self-employment-in-poland-comparative-legal-analysis.collective rights. 60The efforts of the Polish legislature in extending legal protection to self-employed persons should, in principle, be viewed positively.However, it is difficult to speak of the existence of a legal model for the protection of the self-employed in Poland at the moment.On the contrary, even a cursory analysis of the provisions reveals a complete absence of a systemic and comprehensive approach to this issue.Instead, legal solutions adopted to protect the self-employed show considerable randomness and fragmentation.Changes in this area are often made ad hoc, without any coherent underlying concept, for instance, under the influence of political factors.Legal regulations on protecting persons who conduct business on their own account are not correlated properly with international and EU standards and the Polish Constitution. 61The rights guaranteed to the self-employed are scattered across many legal acts, which use diverse conceptual systems 62 and unfounded criteria to determine the scope of this protection.These criteria are often incomprehensible from the point of view of the characteristics and objectives of the type of protection offered.The Constitution of the Republic of Poland, Journal of Laws 1997, No. 78, item 483, as  amended.62   In Poland, the legislator has not established a definition of this term de lege lata.
Unlike in Spain, Germany, or Italy, the Polish legislator has made no reference to the criterion of economic dependence as a premise determining the scope of protection of self-employed workers.This, in my opinion, must be assessed unfavourably.
The issue that must be viewed as the most significant shortcoming of the Polish legislation is the absence of regulations dedicated specifically to the category of self-employed workers, taking into account the specific mode of these workers' functioning within the legal realities of the market.Unfortunately, the Polish legislator has often decided to cut corners by resorting to the expansion of labor law.When granting certain rights to self-employed workers, references to labor law are widely used (to be applied mutatis mutandis).For example, this is the case of protecting life, health, and collective rights.These legal mechanisms must be considered inappropriate, and often even harmful, to ensure the effective protection of self-employed workers.Over-reliance on these mechanisms generates numerous interpretative dilemmas, undermining the security of the legal position of self-employed workers.Furthermore, it often results in an unjustified conflation of the protective guarantees extended to self-employed workers and to dependent, subordinated employees; for example, this is the case with the protected status of trade union activists and the right to strike and other forms of protest; the issue raises legitimate questions of both an axiological and legal nature.It constitutes excessive interference with the principle of freedom of contract (Article 3531 of the Polish Civil Code 63 ), with the constitutional principle of freedom of economic activity (Article 22 of the Polish Constitution) and with the principle of fair (free) competition (Article 9 of the act of 6 March 2018 -Enterprise Law 64 ).
In my opinion, de lege ferenda in Poland, the choice should be made in favor of adopting a legal model founded on the adoption of a new, separate law (following the example of Spain) that would attempt to comprehensively regulate all the issues related to the protection of self-employed workers, while simultaneously limiting the labor law expansion to the necessary minimum. 65The legislator should consider the specificity of work provision under self-employment conditions, with a view to including the aforementioned principles of freedom of contract, freedom of economic activity, and fair competition.The new act should outline a twotier model of protection for self-employed persons.The first tier should cover all self-employed persons who personally, on their own account, and at their own risk, without supervision, provide services to at least one client in a B2B relationship.At this level, a list of basic social rights should be created for all natural persons who provide work (regardless of the legal basis).It should incorporate the standards of international and EU law and the provisions of the Polish Constitution, including the principle of social justice (Article 2) and the principle of equality before the law (Article 32).The Polish legislator should guarantee the following to all self-employed workers: protection of life and health, protection against discrimination and unequal treatment, protection of human dignity, protection of women immediately after childbirth, the right to maternity benefit, as well as the freedom of association and the resulting protection under collective agreements, and protection of the permanence of the civil-law based contracts of trade union activists.In contrast, a further degree of protection must be afforded to those self-employed persons who personally provide work to one primary client under conditions of economic dependence.A separate category of economically dependent self-employed workers, positioned between subordinated employees and self-employed entrepreneurs, should be created.It is specifically to workers in this new category that the new regulations should guarantee the widest range of rights, most akin to employee rights.In particular, economically dependent self-employed workers should enjoy the guarantees of the right to a minimum wage and the protection of this wage; the right to rest; protection of the permanence of employment for women while pregnant and for the period of paid leave (8 weeks) in connection with the birth of a child; the right to refrain from hazardous work with a guarantee of remuneration; the right to count the period of self-employment into the total number of years worked; the right to a notice period; 65 For more information, see: Tomasz Duraj, "Self-Employment and the Legal Model of Protection in Poland, " Studia z Zakresu Prawa Pracy i Polityki Społecznej 29, no. 3 (2022): 257 et seq.
protection against immediate termination of the contract, the right to paid breaks in connection with holding a trade union office; the right to strike; the right to proceedings before an employment tribunal (a labor court).However, I believe that the scope of protection of self-employed workers cannot be an exact match for the protection that the legislator guarantees to dependent, subordinated employees.This would constitute excessive interference with the principles of freedom of contract, freedom of economic activity, and fair competition.It would also directly distort the relationship between labor and capital.
The adoption of the two-tier model postulated here requires the development of new Polish terminology.Crucially, terms such as "self-employed person" and "self-employed economically dependent person" must be defined.A self-employed person is a natural person who personally provides work to at least one enterprise, 66 organizational unit that is not an enterprise, or agricultural operator (the client), on their own account and at their own risk, without management and supervision from the client, as a registered business entity operating under the provisions of the Enterprise Law, without hiring employees and workers providing work under civil-law contracts.As for the definition of the "self-employed economically dependent person", due consideration should be given to adopting a formula for defining the economic dependence that would be easily verifiable against clear, objective criteria.In practice, as demonstrated by the experience of Spain, objective verification of income criteria (such as one client accounting for at least 75% of total income) is problematic and open to abuse. 67Therefore, it might be better to consider a time-based model of economic dependency, as proposed in the 2018 Labour Code draft.Under Article 177(1) of the proposed regulation, an economically dependent self-employed person is a person engaged in the provision of services, performing them independently for the benefit of a specific enterprise, an organizational unit that is not an enterprise, or an agricultural operator 66 The worker's reliance on the assistance of family members in the same household does not serve to preclude the personal nature of the work rendered.67 This is easily circumvented in practice, for instance, by artificially prolonging the chain of commissioning entities (by including businesses that are linked by capital).
(a client), in a direct manner, for an average of at least 21 hours per week, for at least 182 days. 68o complement the proposed de lege ferenda model for the protection of self-employed workers in Poland, a mechanism to effectively counteract self-employment as a way of circumventing labor law should be implemented.Currently, there are no effective measures to prevent self-employment where employment should prevail instead; this is a violation of labor law, in particular of Article 22 of the Labour Code. 69The number of sham, bogus self-employed workers in Poland is currently estimated at about 500,000 and rising.Many of these workers can enjoy the protection offered to employees (rather than to self-employed workers).To this end, the Polish legislator should more precisely define "management" as used in Article 22(1) of the Labour Code by stipulating that the provision refers to the type of management in which the employer issues specific, binding instructions to the worker.This element is absent in self-employed work.This would give the National Labour Inspectorate and the labor courts (that have the power to establish the existence of an employment relationship) an additional instrument to counteract the problem of self-employment designed to circumvent the provisions of labor law.Furthermore, it would contribute to drawing a clear line between dependent, subordinated employees (who enjoy the greatest scope of protection) and self-employed workers, including economically dependent self-employed workers. 3

5See:
Proposal for a Directive of the European Parliament and of the Council on improving working conditions in platform work, COM/2021/762 final, accessed March 10, 2024, https://eur-lex.europa.eu/legal-content/PL/TXT/?uri=CELEX:52021PC0762.Cf.Aneta Tyc, "Gig Economy: How to Overcome the Problem of Misclassifying Gig Workers as Self-Employed?, " Revue Europénnee du Droit Social 56, no. 3 (2022): 35 et seq.Economic Dependence as a Criterion for the Protection of the Self-Employed under EU Law Review of European and Comparative Law | 2024 Vol.56, No. 1
20 2022/C 374/02, O.J.E.C. C374, 30 September 2022.21 Under Article 101 TFEU (Official Journal 115, 09/05/2008 P. 0088-0089), all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market are prohibited as incompatible with the internal market.Review of European and Comparative Law | 2024 Vol.56, No. 1