On Wednesday 30 November, Member States have not yet been able to come to an agreement over the compromise submitted by the Czech Presidency of the EU Council on the directive on digital platform workers, since their positions have not changed overall since the meeting on 23 November (see EUROPE 13072/1).
Moreover, Berlin has still not adopted a position on this issue and Rome has not yet clearly formulated its intentions. The Czech Presidency of the EU Council must now determine the way forward, with doubts remaining as to whether the Presidency, without the advice of Berlin, will be able to present a text for a general approach on 8 December at the ‘Employment and Social Affairs’ Council.
If necessary, it could therefore opt for a progress report.
The last compromise presented by Prague on 25 November did not modify the balances adhered to until now, nor did it change the criteria for triggering the legal presumption of salaried status (3 out of 5 required criteria). However, it strengthened the right of Member States to exclude several authorities, including social security authorities, from the scope of the directive. Several delegations wishing to return to the Commission’s original text (fewer criteria in particular) were not satisfied with these latest changes and made technical proposals to improve the text.
The member countries were divided into three groups on 23 November, all forming a blocking minority. On Wednesday, the group of so-called ‘ambitious’ countries who wanted to return to the European Commission’s original text remained as one, defending the same line, while another group of member countries such as France, Poland and the northern EU countries can accept the text. Two or three countries in the east of the EU, on the other hand, are strongly opposed to the text and are calling for a tightening of the conditions for the presumption.
One of the countries that is having difficulties with the text is particularly sorry that this general derogation introduces the exclusion of procedures initiated by the tax or social security authorities; this reference to the national level calls into question the useful effect of the directive and its effective implementation.
The text would also contain a number of legally dubious provisions, with the whole of Article 4 regarding the conditions for triggering the presumption ultimately being deemed to fall short of European and national case law.
Platforms might also resort to legislative ‘shopping around’ between Member States if the European legislator fails to delimit the final liability of platforms. (Original version in French by Solenn Paulic)