A self-employed person is defined as an independent worker, who works independently of an employer, in contrast with an employee, who is subordinate to and dependent on an employer. However, insofar as the concept of employee implies an element of economic dependence, in that employees are dependent for subsistence paid by the employer, self-employed workers may be little different, as no less dependent economically on their work for subsistence, though paid by their clients or customers.
The self-employed are generally recognised as being concentrated in a number of occupations: farmers, professionals, shopkeepers, helper-spouses and construction workers. There is thus a wide range of categories of self-employed persons, and there are significant differences among them; e.g. between liberal professionals, workers in hotels and restaurants, and female helper-spouses. According to the Commission’s Employment in Europe report 2002, the share of self-employment in total employment has increased in many countries (e.g. in Sweden where it has almost doubled from 4.5% in 1980 to 8.9% in 2000) while in a few others it has actually decreased (e.g. in Greece, from 30.9% in 1980 to 25.9% in 2000).
The diversity of self-employed persons has attracted diverse forms of regulation. In the EU, self-employed persons have been the subject of attention especially in the sphere of employment law, mainly in narrowly specific areas, such as free movement, equal treatment, and in the European Employment Strategy. The pillar on entrepreneurship of the European Employment Strategy aims to increase the numbers of self-employed persons in the EU, particularly by encouraging the Member States to reduce tax and social security obstacles to this form of economic activity.
Free movement and self-employed persons
Article 47 of the EC Treaty provides for the free movement of ‘those who supply services as self-employed persons’:
1. In order to make it easier for persons to take up and pursue activities as self-employed persons, the Council shall… issue Directives for the mutual recognition of diplomas, certificates and other evidence of formal qualifications.
2. For the same purpose, the Council shall… issue Directives for the coordination of the provisions laid down by law, regulation or administrative action in Member States concerning the taking up and pursuit of activities as self-employed persons….
The European Court of Justice reinforced these Treaty provisions by defining ‘worker’ as all persons engaged in economic activity. This definition ensures that all Treaty provisions covering the free movement of workers also apply to the self-employed.
A number of directives have been adopted to promote the mutual recognition of diverse national systems of qualification and their regulation, and the regulation of particular professional qualifications (lawyers, doctors, architects). Council Directive 89/48/EEC aimed to establish a general system for the recognition of higher education diplomas awarded on completion of professional education and training of at least three years’ duration. Despite these legal moves, free movement of the self-employed, particularly self-employed professionals, has remained relatively low.
Equal treatment and self-employed persons
The directive on the application of the principle of equal treatment between women and men engaged in an activity in a self-employed capacity, and on the protection of self-employed women during pregnancy and maternity is significant. Although women form only a minority (around 25%) of all such persons in the EU, they comprise the majority of certain important categories of self-employed persons. However, its coverage extends to their spouses who, although not employees or partners, habitually participate in the activities of the self-employed worker and perform the same or ancillary tasks (Article 2(b)).
The principle of equal treatment with respect to self-employed persons also extends beyond gender. Council Directive 2000/43, which implements the principle of equal treatment between persons irrespective of racial or ethnic origin applies to ‘all persons… in relation to: (a) conditions for access to employment, to self-employment and to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion’. Council Directive 2000/78, which establishes a general framework for equal treatment in employment and occupation, contains an identical provision.
See also: atypical work; casual worker; contract of employment; discrimination; economically dependent worker; entrepreneurship; equality between women and men; free movement and social security; homeworking; mobility of workers; occupational mobility; portability of social security rights; professional qualifications; worker; employee.