Member States had still not reached agreement, on Wednesday 7 December, on the Czech Presidency of the EU Council’s latest proposals on digital platform workers.
During the day, the Commission had submitted final adjustments to them with a slightly modified text offering some clarifications in the recitals on the platforms’ business model’, but also on the definition of the mode of control of the execution of work, without however changing the operational part of the text.
The ambassadors’ meeting in the morning had resulted in the same outcome as on 30 November, with Member States reiterating the various reasons for their blockage (see EUROPE 13074/28). These blockages include provisions stating that the platform is not considered to meet a criterion if it is only acting to comply with a legal obligation, including an obligation arising from collective agreements, which are interpreted differently by delegations.
The German government has still not been able to take a position on the text, and can therefore block it by abstaining.
The Czech Presidency considered reconvening the ambassadors later in the day, but by the end of the day this idea was no longer on the agenda.
The proposed new compromise text reflects the extremely limited room for manoeuvre of the Czech Presidency, which at the time of going to press seemed to have decided to submit a draft agreement to the ministers in any case.
The latest adjustments to the business models stated that “platform work is rapidly evolving, resulting in new business models and forms of employment that sometimes escape the existing paradigms. For these reasons, it is important to accompany this process with adequate safeguards for persons performing platform work, irrespective of the nature of the contractual relationship”.
By going through an intermediary, this way of organising platform work “often results in a vast array of different and complex triangular relationships as well as confusion between the two types of relationship. Member States should therefore lay down adequate measures, including by establishing systems of joint responsibility”.
On the criteria and definition of the notion of work control, the criteria should also include concrete evidence that the digital work platform closely supervises the performance of work, including thorough verification of the quality of the work results of the persons performing the work of the platform. The new recital details here how this assessment should be carried out.
In order to ensure access to Union law applicable to workers, the legal presumption should apply in all relevant administrative or judicial proceedings where the employment status of the person performing the work on the platform is at stake.
Although this Directive does not impose any obligation on Member States to apply the legal presumption in tax, criminal and social security proceedings, nothing in this Directive should prevent Member States, “within the framework of their national law”, it is also added, from applying this presumption.
For their part, representatives of certain sectors have renewed their pressure on the co-legislators, such as Hotrec and Ceemet, the representatives of the hospitality, metal, engineering and technology-based industries, who wrote to both legislators on 6 December.
“Our main priorities are to limit the scope to digital work platforms that provide a commercial service as a digital intermediary between supply and demand and to clearly exclude other businesses from the scope”, the two organisations write.
“On the legal presumption, it is a question of establishing robust European criteria for triggering the legal presumption that are easily applicable by companies at national level and of avoiding automatic reclassifications by preserving the truly self-employed and their status. The rebuttal procedure must be realistic and in line with national legislation”.
“Our sectors are not platforms”, write the two organisations.
“A majority of criteria would otherwise have to be met to trigger the legal presumption, avoiding targeting companies that avoid national social security and tax regimes generally. The automatic reclassification of self-employed people as employees is not acceptable”, they continue to argue.
On the side of the more traditional digital platforms directly affected by the text, the potential vote in the EU Council is also being awaited rather feverishly, because, while the latest Czech text is considered a step forward compared to the Commission’s initial text, it would not sufficiently defend the economic model of the platforms and the respect of individual choices, as many workers in these sectors want to be able to earn additional income with great flexibility without being considered as employees, these platforms argue.
They also believe that it is not 5 million workers in the EU - whose self-employed status is incorrect, according to Commission data - who will be affected by the directive, but all 28 million workers in the sector.
The harder line taken by the European Parliament rapporteur, Elisabetta Gualmini (S&D, Italian), which notably erases all criteria for defining legal presumption, is even more unwelcome (see EUROPE 13075/14).
Link to the letter: https://aeur.eu/f/4jl
Link to the text of 7 December: https://aeur.eu/f/4js (Original version in French by Solenn Paulic)