On the open borders of information and consultation rights in the EU acquis

Abstract

Developments in the world of work in the last few years have resulted in an increasing number of working patterns that fall outside the scope of standard employment. In the area of digital work, in particular, more and more economically dependent employee-like workers can be found. The question therefore arises as to whether those who are not typical employees are included in the scope of protection of EU labour law. It is unclear, for example, whether one of the most important labour rights – the right to information and consultation – also applies to non-standard workers (section 1). This article addresses the question of the extent to which EU labour law de lege lata permits or even provides for the inclusion of non-standard employees in the scope of information and consultation rights. To answer this question, relevant legal acts are first analysed. In most cases, it is up to the Member States to regulate the respective scope of application and thus to include non-standard workers (sections 2 and 3).1 Subsequently, a possible solution for an extension of information and consultation rights for non-standard workers is proposed. The developed risk approach shows that a solution should also be found at Union level for the inclusion of non-standard workers, especially in the case of employee-like workers, as they are often subject to the same risks as employees. However, a broad interpretation of Art. 27 CFR can lead to the conclusion that employee-like workers must be included at both Union and national levels (section 4).