A company was using “freelance” delivery drivers through its online platform (the “Food Delivery Company”). The platform was using the now worldwide well-known model where the client would order food through an online website. Delivery drivers would register on an application where they would indicate the time slots they would be available to make deliveries. They would then receive communications of deliveries to be carried out via another online application that would geolocate the driver who could make the delivery.
All the delivery drivers signed a freelance agreement confirming that they complied with all legal requirements, among others that they were duly hired as self-employed drivers. An investigation was carried out by the Labour and Mines Inspectorate (ITM), which revealed that almost all of the drivers in question were students with little or no professional experience.
The freelance activity of delivery driver is subject to a business license (autorisation d’établissement).
Article L. 571-1 of the Labour Code states that clandestine work (travail clandestine) is prohibited. In particular, the self-employed practice of one of the professional activities listed in Article 1 of the law of 2 September 2011 regulating access to the professions of craftsman, trader, industrialist and certain liberal professions, without being in possession of the authorization provided for therein, is considered as clandestine work. Article L. 571-2 of the Labour Code states that it is also illegal to use the services of clandestine workers.
The Luxembourg Court (Tribunal d’Arrondissement de et à Luxembourg) found the Food Delivery Company guilty for using said clandestine delivery drivers. The Court found that the signature between both parties of the freelance agreement did not discharge the Food Delivery Company due to the fact that the provisions of the Labour Code are of public order and apply regardless of any contractual engagement the parties had signed. As the majority of the delivery drivers were students, the Food Delivery Company should have been aware that the delivery drivers probably did not have the necessary authorisations and should have checked to make sure of this.
The Food Delivery Company was condemned to a criminal fine of EUR 5,000.
