Self-employed workers (Directive 2010/41/EU and some relevant provisions of the Recast Directive)

AuthorJenny Julen Votinius
Pages40-44
40
8Self-employed workers (Directive 2010/41/EU and some relevant
provisions of the Recast Directive)
8.1General (legal) context
8.1.1Surveys and reports on the specific difficulties of self-employed workers
There are, to the author’s knowledge, no such reports.
8.1.2Other issues
There are no other issues to be reported.
8.1.3Overview of national acts
-The (2008:567) Discrimination Act.
-The (2010:110) Social Security Code.
-The (1980:1102) Act on trading partnerships.
-The (2005:551) Joint-stock Company Act.
8.1.4Political and societal debate and pending legislative proposals
There are no political or societal debates, nor pending legislative proposals, concerning
self-employment in Sweden.
8.2Implementation of Directive 2010/41/EU
The Swedish implementation is made in a complex way often by regulations already in
place as reported by the Government in accordance with Article 16(3) of the Directive
in Memorandum 2012-04-24 by the Labour-market Department. The main instruments
mentioned in the memorandum are the (2008:567) Discrimination Act; the (2010:110)
Social Security Code; the (1980:1102) Act on trading partnerships and the (2005:551)
Joint-stock Company Act. The implementation by the 2008 Discrimination Act is rather
subtle. The Act is a ‘Single’ Non-Discrimination Act covering 7 grounds of discrimination
among them sex and 10 areas of society. It is truly horizontal in character definitions
are found in Chapter 1 whereas the prohibitions ‘tacitly’ covering all grounds as well as
types of discrimination are found in Chapter 2. On the Swedish labour market there is a
binary system as far as personalised work is concerned one is either an employee or is
self-employed. The concept of an employee is broad in range and covers all dependent
work/workers. (As far as the concept of employee is concerned, Swedish labour law does
not contain any statutory definition instead the concept has developed through a
combination of judicial interpretation and indications by the legislators in preparatory
works. The courts apply a multi-factor test applied in a ‘holistic’ and also rather flexible
manner). However, if not covered by the ban on discrimination in working life (of employed
persons) the protection of the self-employed proper is ‘divided’ between the bans on
discrimination in labour market policy activities (Chapter 2 Section 9), when starting or
running a business and professional recognition (Chapter 2 Section 10), membership of
certain organisations (Chapter 2 Section 11), providing goods and services (Chapter 2
Section 12), health (Chapter 2 Section 13) and in social security matters (Chapter 2
Section 14). This is done in a far from transparent way and without ever mentioning the
concept of self-employment. According to the main Swedish commentary on the
Discrimination Act46 there is a reason to doubt whether this vague implementation of EU
Law is satisfactory, as it is not sufficiently transparent. However, as far as the author
understands, this remark would refer to the implementation of the Recast Directive rather
than to that of Directive 2010/41.
46 Fransson, S. and Stuber, E. (2015), Diskrimineringslagen, En Kommentar, 2nd ed., Norstedts, Stockholm p.
296.

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