The Czech Presidency of the EU Council submitted a new compromise on the digital platform workers directive to the Member States on Monday 19 September, ahead of a new working group meeting on 26-27 September.
While the French Presidency of the Council of the EU submitted a text on 19 May with modifications presented as essentially technical, the Czech Presidency intends to double its efforts to reach a General approach by the end of the year. However, some of the provisions introduced could offend the European Parliament’s sensibilities and represent a step back from the Commission’s text.
After a first working meeting in July and various options submitted to the delegations, Prague decided to continue working on the basis of the Commission’s text consisting in identifying the legal presumption of employment as soon as workers tick at least two out of five criteria, proving the link of subordination and the control exercised by the platform. But Prague introduces a derogation in their chapter four on the legal presumption: if the Presidency takes up the five criteria set out by the Commission, it proposes that, by way of derogation, an employment relationship may not automatically be considered as an employee relationship if the worker only meets the first two criteria (a and b), i.e. the fact that “the digital work platform [...] determines or sets upper limits for the level of remuneration per assignment or per period of work (a)” and that it requires “the person performing the work of the platform to comply with specific rules as regards appearance, conduct towards the recipient of the service or the performance of the work (b)”.
In other words, fixing a worker’s remuneration and imposing a uniform or behaviour on them would not be sufficient to prove a wage-earning relationship.
A new article states that the application of the legal presumption applies in all relevant administrative and judicial proceedings where the correct determination of the professional status of the person performing the work on the platform is either the central aspect of the proceedings or a preliminary question to be answered. “Tax and criminal proceedings, on the other hand, are not relevant proceedings within the meaning of this Directive and Member States may decide not to apply the presumption in social security proceedings”.
On rebuttal of the presumption, the Presidency also introduces a derogation allowing national administrative authorities to decide of their own accord that the presumption of employment does not exist.
The compromise also introduces a definition of the ‘intermediary’ between the platform and the worker, and further revises the arrangements for algorithmic management and the ability of trade unions to act in defence of platform workers, provisions that some observers also consider to be weakened.
Link to the text: https://aeur.eu/f/36g (Original version in French by Solenn Paulic)