The Member States, meeting on 27 March in a working group on the Digital Platform Workers Directive, were reportedly fairly positive about the latest compromise proposal from the Swedish Presidency of the EU Council (see EUROPE 13146/18), according to several sources.
This compromise proposal had in particular tried to respond to the concerns of certain countries as to the possibility for a platform not to be considered as fulfilling a criterion (for triggering the presumption of employment) under the directive, if it is already required to do so by a national provision of the same type or a national collective agreement.
This specific article (4-2a) had thus been deleted and a new reference to “controlling or directing” platform work had been introduced in the identification of the 3 out of 7 criteria still required to be met by a platform to trigger the presumption.
This cautiously positive reception does not mean that all delegations are now on board. “We are not there yet”, said a source from a country classified as ‘pro-proposal’ by the Commission, i.e. in favour of a text considered more protective of platform workers.
But this latest compromise text is “an important step”, says this source.
However, several pro-Commission delegations want to return to the compromise text that was circulated on 8 December in the EU Council of employment ministers (see EUROPE 13080/16) and which the Commission itself had considered to be relatively good.
Some of these delegations are also said to be ready to accept definitively the required threshold of 3 out of 7 criteria (as opposed to 2 out of 5 initially), provided that the structure of the presumption of salaried status is modified and consolidated.
Spain’s proposal
Spain, which will soon hold the EU Council Presidency, has circulated a compromise proposal for a more open list of criteria for determining the presumption and is trying, together with the Swedish Presidency, to improve the text.
The Spanish proposal, as seen by EUROPE, prepared in consultation with the Netherlands, Luxembourg, Belgium, Portugal or Malta, recommends to remedy the “significant” alteration of the mechanism for triggering the legal presumption.
“The successive versions of the text were progressively narrowing down the concept of worker, either because the concepts of direction and control were not present, or because they were authentically interpreted as the sole concurrence of the criteria. This left outside the scope of the proposal other circumstances from which direction and control can arise, both currently or in future developments of an ever-changing reality such as platform work”, says the 22 March note.
The suggested amendments provide “a clear basis for the presumption, the concept of worker systems, and that does not limit the traditional scope of labour law. The criteria are then introduced as circumstances that shall be considered when deciding whether or not the presumption applies, without prejudice to other elements that could be added legally or considered as well”.
Once this clear basis is obtained, the minimum protection would be maintained, so that the presumption still applies, in particular by administrative authorities, when a certain threshold is reached. “With different safeguards, a threshold of 3 out of 7 criteria would then no longer be of concern as before”, the note says.
Some countries, however, have some reservations about the deletion of Article 4-2a, which is not necessarily compensated by a sufficiently strong recital. The definition of the notion of control and direction of work as well as the still possible exemptions from the application of the presumption of wage-earning (Sweden has introduced two conditions allowing the authorities not to apply this principle) are also likely to remain a matter of debate.
The Swedish Presidency also has to deal with a major problem: the continued absence of a position on the subject from the German government.
At this stage, a new meeting of the working group is scheduled for the end of April with a new compromise, which, according to another source, could be the last.
Link to the Spanish proposal: https://aeur.eu/f/655 (Original version in French by Solenn Paulic)