The definition of a worker in the transposition of the Transparent and Predictable Working Conditions Directive 2019/1152 raises questions, according to a report by the monitoring expert group published on 6 August.
Some experts question the provisions of Article 1(§2) of the Directive, which define the status of worker and are based both on the definition at national level and on the case law of the European Court of Justice - one of the most controversial issues during the negotiations of the legislation (see EUROPE 12189/4).
Thus, some experts consider that the footnote in recital 8 (which lists the case law of the Court of Justice applicable to this Directive) is not in line with the final wording of Article 1 of the Directive, which refers to the national definition.
The reason? Some of the cases listed in the footnote relate to directives that are not based on national definitions of a worker. The European Commission replied that, for the time being, it is not possible to know what the Court’s approach would be and whether it would refer to the autonomous European concept of worker in the future.
Another expert questioned whether a person who is not considered a worker under national law could be considered a worker if he or she fulfilled the CJEU criteria. If this was the case, then the expert questioned the usefulness of the reference in Article 1 to national definitions of workers. The European Commission confirmed that the case mentioned by the expert could be possible, in accordance with the principle of effectiveness laid down in the Directive.
While Member States are not required to change their national definitions of workers, they must take account of case law when transposing the directive, the report says.
The trainees in question
The issue of defining trainees and apprentices at European level was also discussed. The European Commission’s services have clarified that only trainees or apprentices with an employment relationship who are pursuing a “genuine educational programme” are covered by the Directive.
The deadline for transposition and implementation of the directive is 1 August 2022.
To access the report: https://bit.ly/3B8l0up (Original version in French by Pascal Hansens)