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

AuthorJenny Julen Votinius
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.

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