The Czech Presidency of the Council of the EU will try, on Wednesday 30 November, to reconcile the positions of the Member States on the directive on digital platform workers and proposed a new compromise text on 25 November in which it tries, among other things, to respond to the concerns of some Member States, but also of the EU Council’s Legal Service, on the legal problems posed by certain provisions.
The previous meeting of Member States on 23 November failed to reach a majority on the Czech compromise and three groups of countries formed a blocking minority between those in favour of tightening the conditions for triggering the presumption of employment, those content with the Czech compromise and those who wanted to return to the more ambitious Commission text (see EUROPE 13069/22). The fact that Berlin and Rome do not yet have an official position also puts Czech efforts to reach an agreement on hold.
Taking into account the outcome of the Coreper meeting on 23 November, the Presidency has endeavoured to limit “the changes to the strict minimum required to meet the concerns expressed by Member States in order to strike the right balance and to address the legal issues raised by the EU Council’s Legal Service at that meeting”. Given the sensitivity of the issue, “the Presidency has been particularly cautious in changing the legal presumption (of employment)”, Prague explains in the preamble, perhaps at the risk of disappointing the Member States once again.
In essence, the Presidency is content with the minimum of modifications, concentrating essentially on Article 4 and giving guarantees to countries worried about a wording of the text that would harden the criteria for triggering the presumption, but also to those who find the text too ambitious and too intrusive for their national practice.
To appease countries concerned about a tightening of the criteria, “the Presidency has heard the concerns expressed by a group of Member States that the insertion of ‘and’ in Article 4(1)(c) would create a double condition for this criterion to be met, thereby raising the threshold”, explains Prague.
The last text of 18 November stated that the digital work platform closely supervises the performance of the work AND checks the quality of the work results, including by electronic means; the last text removes the reference to checking the quality of the work, but it remains in a recital as part of the control of the performance of the work. The term ‘closely’, which was considered unclear, is deleted as well.
An amendment is also made to change the term ‘range’ of remuneration set by the platform to ‘upper limits of the level of remuneration’.
More weakening?
At the same time, however, in order to accommodate also those Member States concerned that the Directive would create difficulties for their practices, the latest text reformulates more clearly in an article the fact that tax, criminal and social security proceedings are excluded from the scope of the Directive from the relevant proceedings in which the legal presumption must be applied.
“This provision follows the request of many Member States to be able to decide for themselves, at national level, whether they want to apply the legal presumption in these particularly sensitive areas of law”, explains Prague. “The reinstatement in the body of the text establishes legal certainty as to the obligations of the Member States, which could not be ensured by a mere reference in the recital”.
However, this change can also be seen as a weakening of the ambition of the directive, with the Presidency explaining that this request for legal clarity also responds to the group of countries that want 4 out of 7 criteria (and not 3 out of 7) to be mandatory to trigger the presumption.
On the suspensive effect or not (of the reclassification of a worker) when there is a procedure to challenge the presumption launched by a platform, the Czech Presidency also seems to satisfy the countries wishing to weaken the text.
“Prague had to recognise that a blocking minority would oppose this provision as it appeared in the last version of the compromise text, as many Member States considered that it had a significant impact on national procedural law and required specific provisions for this particular group of persons”.
The latest text thus transforms Article 4-a, paragraph 5 in this way: Member States “may provide” that such a procedure has no suspensive effect on this decision, whereas the last text clearly stipulated that such procedures have no suspensive effect on the reclassification.
Another change, seen by some as a further weakening of the text, is that the request to include “joint liability of digital work platforms and intermediaries in Article 2a was not retained for technical reasons”. The Presidency did not see how joint responsibility could be put into practice, especially with regard to the legal presumption, it explained.
In any case, Prague believes that it has reached the centre of gravity with this latest text, aware that it will not be able to satisfy all the delegations, it stated. Those delegations that wanted to return to the more protective Commission text might still not be content with it.
Link to the compromise: https://aeur.eu/f/4c3 (Original version in French by Solenn Paulic with Pascal Hansens)