In Strasbourg on Monday 12 December, members of the European Parliament’s ‘Employment’ Committee were due to adopt a position on the report by Italian MEP Elisabetta Gualmini (S&D) on digital platform workers. More than 5 million workers considered to be bogus self-employed could be reclassified as employees under the directive.
A preliminary agreement between the shadow rapporteurs had been reached on 1 December (see EUROPE 13075/14), and several sources expressed confidence on Monday 12 December that a majority, albeit a narrow one, would be found during the Committee meeting that evening.
The socialist MEP has indeed managed to find a consensus with her colleagues on several points: a strong principle of legal presumption, rebuttable by the platforms, which will be able to draw inspiration from (non-mandatory) criteria at both European and national level and will have to demonstrate that the worker they hire is a real self-employed person, as soon as two criteria are met.
It will therefore be necessary to demonstrate that “the contractual relationship in question is not an employment relationship as defined by applicable law, collective agreements or practice in force in the Member State in question, with consideration to the case-law of the Court of Justice, and the person performing platform work is free from control and direction of the digital labour platform in connection with the performance of the work, both under the contract for the performance of the work and in fact”.
It will also be necessary to prove that the person carrying out the platform work habitually pursues a trade, profession or independent activity which is in the same field or a related one.
Other elements of consensus: - a reduced scope, as the report no longer covers all platforms that operate using algorithms; - a principle of dissuasive sanctions, including financial ones, for platforms not complying with the terms of the directive, but also, potentially, in the form of exclusion from public grants and public procurements; - renewed guarantees for the protection of platform workers, who will not be subject to a decision affecting their personal situation that does not involve humans.
On the scope, the MEP would have liked to cover more types of platforms, but did not have a majority for this. She explained to EUROPE a few days ago that, according to some studies, the condition of bicycle delivery drivers is still one of the most economically vulnerable, and that the directive will therefore, in her opinion, still allow for a great improvement in their situation.
The latest compromise amendments on the scope state that “self-employed intermediary persons covered by the Council Directive on the coordination of the laws of the Member States relating to self-employed commercial agents (86/653/EEC), who have continuing authority to negotiate the sale or purchase of goods on behalf of another person or to negotiate and conclude such transactions on behalf of and in the name of that person, should not fall under the scope of this Directive”.
Taxi dispatch services, as regulated by national law and practice, “can be distinguished from digital ride hailing digital labour platforms, when they are merely an ‘add-on’ to a pre-existing service and only connect genuine self-employed licensed taxi drivers with their customers sending communications received from persons seeking a taxi service to licensed taxi drivers, provided that they do not exert any kind of control and direction, in accordance with this Directive, over the licensed taxi drivers”.
The compromise also strengthens the non-suspensive effect of rebuttal proceedings brought by platforms. When a digital work platform challenges an administrative or judicial decision determining the employment status of a person working on the platform, this procedure should not have a suspensive effect on that decision, says the latest draft. EUROPE will continue to follow this story.
Link to the latest amendments: https://aeur.eu/f/4me (Original version in French by Solenn Paulic)