The Concept of ‘Worker’ in European Labour Law: Fragmentation, Autonomy and Scope
本文批判分析欧洲劳动法中‘工人’概念，指出其受雇佣与自雇二元划分限制，主张借鉴基本权利语言扩大概念范围，并探讨改革选项。
Abstract This article offers a critical analysis of the concept of ‘worker’ in European Labour Law as predominantly shaped by the CJEU on the basis of its jurisprudence in the area of free movement of workers. It suggests that, while nominally broad, this concept suffers from many of the strictures arising from the traditional binary divide between employment and self-employment on which it is essentially premised. Having analysed the residual fragmentation and legitimacy problems arising from a rather incomplete development of this area of EU law, the article advocates a broader concept of ‘worker’ shaped by reference to the fundamental rights language embraced by various regional and international labour and human rights mechanisms, including the Social Charter, the European Convention on Human Rights and the International Labour Organisation. The article concludes by identifying a number of possible reform options that may serve the purpose of establishing a suitably broad and autonomous concept of ‘worker’ for the purposes of EU labour law, and by offering a cursory analysis of some recent EU Pillar of Social Rights initiatives.