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

• Author: Jenny Julen Votinius
• Pages: 40-44

40

8 Self-employed workers (Directive 2010/41/EU and some relevant

provisions of the Recast Directive)

8.1 General (legal) context

8.1.1 Surveys and reports on the specific difficulties o f self-employed workers

There are, to the author’s knowledge, no such reports.

8.1.2 Other issues

There are no other issues to be reported.

8.1.3 Overview 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.

8.1.4 Political and societal debate and pending legislative proposals

There are no political or societal debates, nor pending legislative proposals, concerning

self-employment in Sweden.

8.2 Implementation of Directive 2010/41/EU

The Swedish implementation is made in a complex way – often by regulati ons already in

place – as reported by the Governm ent in ac cordance 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 t rading 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 w ell as

types of disc rimination are f ound in Ch apter 2. On the Swedish labour market there is a

binary system as far as personalised work is concern ed – one is either an employee or is

self-employed. Th e concept of an employee is broad in range and covers all d ependent

work/workers. (As far as the concept of employee is concerned, Swedish labour law d oes

not contain any statutory definition – instead the concept has developed through a

combination of judicial interpretation and indications by the legislators in pr eparatory

works. The courts apply a multi-factor test ap plied 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-e mployed proper is ‘divided’ between the bans on

discrimination in labour market policy activit ies (Ch apter 2 Section 9), when starting or

running a business and pr ofessional recognition (Chapter 2 Section 1 0), 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 r eason 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.