The Ministers for Employment and Social Affairs of the Member States will take stock, on 16 June in Luxembourg, of the progress of work in the EU Council on the directive regarding digital platform workers.
The European Parliament, for its part, has just presented its report (see EUROPE 12956/24) and amendments to the report by the Italian MEP, Elisabetta Gualmini (S&D) will be tabled on 8 June (the original deadline was 1 June).
The national ambassadors were invited on 1 June to prepare this Luxembourg session and to consider a progress report from the French Presidency of the EU Council.
“The vast majority of delegations welcomed the proposal in principle, while stressing the need for time to assess all the consequences of the proposal”, says the French Presidency of the EU Council in this public progress report. After eight meetings of the Social Questions Working Party “for the time being, all delegations maintain general scrutiny reservations on the text. Denmark and the Netherlands maintain parliamentary scrutiny reservations”, summarises the Presidency.
A first draft compromise was presented on 19 May and discussed on 24 May. It provides clarifications of a mainly technical nature, says the progress report, on the definitions, the type of platforms excluded from the directive, the issue of the burden of proof and the role of platforms, and the reversal of the burden of proof.
According to the public document, since many delegations wanted the text to better reflect the legal basis on which it is based, Article 1 has already been restructured.
Article 2, as well as Recital 18, also specifies the type of platforms excluded from the scope (“resell goods or services, or those who provide a service that is of a non-profit-making nature”); the notion of ‘commercial’ service has been deleted and ‘service’ retained.
On the key principle of legal presumption, the Presidency has not been able to change it substantially due to a lack of “clear positioning” on the criteria, their number, nature and threshold, it says.
The Presidency nevertheless proposed to delegations to introduce an additional concept to refer to the subordination link that would lead to wage employment by insisting not only on the “control of the performance of work” but more broadly on the “restriction of freedom, including through sanctions, to organise one’s work and control its execution”. The concept of restriction of liberty will be applied more generally to all criteria. In addition, the term “effectively” in some criteria has been replaced by “de facto”.
In paragraph 3 of Article 4 on the legal presumption, the new wording aims to make more explicit the margin of manoeuvre left to Member States to apply the presumption of employment outside administrative or judicial procedures and in cases where the contractual relationship is clearly not an employment relationship according to national law or practice.
The compromise proposes that the legal presumption should apply in all relevant administrative or judicial proceedings where the professional status of the person performing the work on the platform is at issue.
Competent authorities verifying compliance with or application of the relevant legislation may also rely on this presumption in assessing “whether a contractual relationship is to be regarded as an employment relationship, unless it is clear that the presumption would be rebutted on the basis of the legislation, collective agreements or practice in force in the Member State in question, taking into account the case law of the Court of Justice”.
On the reversal of the presumption, the changes made have “allowed for more substantial amendment requests to emerge in relation to the competence of Member States, as regards the absence of suspensory effect”, says the public report.
On the issue of the burden of proof and the role of platforms, Recital 28 clarifies that the relationship between a person performing work on a platform and a digital work platform may not meet the requirements of an employment relationship according to the law, collective agreements or practice in force in the Member State concerned, “even if the platform restricts the freedom to organise his or her work and controls the execution of work over a given period of time”.
The compromise then adds a provision that platforms, which have an overview of all the factual elements determining the legal nature of the relationship, in particular the algorithms by which they manage their operations, should have the burden of proof when they claim that the contractual relationship in question is not an employment relationship.
Criteria indicating that a digital work platform restricts the freedom to organise work and controls the performance of work should include concrete evidence that the digital labour platform “de facto determines [...] the remuneration [...], requires the respect of rules with regard to appearance or conduct, gives instructions on how the work is to be performed or thoroughly verifies the quality of the results of that work, including through electronic means, which does not merely consist in using reviews or ratings by the recipients of the service or restricts the discretion to choose working hours or periods of absence”, the new text proposes (Recital 25).
The French Presidency considers that this text constitutes a good first basis for negotiations to prepare a general approach.
Links to the report and the first compromise: https://aeur.eu/f/1wm (in French); https://aeur.eu/f/1wn (Original version in French by Solenn Paulic)