Second, as regards the subject-matter of the collective agreement at issue in the main proceedings, it should be noted that, in the light of the case-law cited in recitals 22 and 23 above, the examination would be justified only if the referring court did not classify the alternates involved in the main proceedings as `undertakings` but as `false owners`. It is first necessary to examine whether the Court of Justice has jurisdiction to answer the questions referred for a preliminary ruling. As the Gerechtshof te`s-Gravenhage pointed out in its preliminary ruling, the agreement at issue in the main proceedings concerns a purely internal situation and has no effect on intra-Community trade. Consequently, Article 101 TFEU does not apply to the dispute in the main proceedings. 2. A collective agreement may also cover contracts relating to the performance of certain works and contracts for professional services. The provisions of this Act on employment contracts, employers and workers shall apply mutatis mutandis. Specifically, Annex 5 to that agreement provided that independent substitutes should receive at least the rehearsal and concert costs negotiated for employed substitutes, increased by 16%. Are the competition rules of EU law to be interpreted as meaning that a provision of a collective agreement concluded between employers` organisations and workers` organisations requires that self-employed workers who, on the basis of a contract for professional services, perform for an employer the same work as workers falling within the scope of this collective agreement must receive minimum fees; does not fall within the scope of Art. 101 TFEU, in particular on the ground that that provision appears in a collective agreement.?] However, the ECJ added that the national court had to verify whether the « self-employed workers » were not really « false self-employed », so that they were indeed in a situation comparable to that of workers. It depends on factors, for example. B if they act under the same authority of the employer with regard to the free choice of time, place and content of their work; if they share the employer`s economic risks; and whether they are an integral part of the employer`s business for the duration of the relationship.
If service providers are indeed `false self-employed`, a collective agreement does not fall within the scope of Article 101(1) TFEU. In examining that action, the Rechtbank The Hague stated that such a provision did not fulfil either of the two cumulative conditions which would enable it to circumvent the application of EU competition law within the meaning of the judgments in Albany (EU:C:1999:430); Brentjens`, C-115/97 to C-117/97, EU:C:1999:434; Drijvende Bokken, C-219/97, EU:C:1999:437; and van der Woude (C-222/98, EU:C:2000:475). The Hague Rechtbank considers that the fixing of fees by that provision must have arisen, on the one hand, from a dialogue between management and workers and that it took the form of a collective agreement between employers` and trade union organisations and, on the other hand, contributes directly to the improvement of workers` employment and working conditions. In the present case, the contested provision does not contribute directly to the improvement of the employment and working conditions of workers. That is why the Hague Rechtbank rejected the precedent of the FNV, without even ascerting whether the first condition laid down in that case-law, namely that it is necessary for the provision in question to be inherently established by dialogue between management and workers, was satisfied. . . .