On Friday 14 April, the Swedish Presidency of the EU Council circulated a new compromise on the digital platform workers directive, which will be discussed on 24 April.
The Presidency has “learnt the lessons” from the last meeting of the Working Party on Social Questions on 27 March (see EUROPE 13146/18, 13153/9) and is still seeking to reassure both delegations concerned about the freedom given to national authorities to not apply the principle of presumption of salaried status and those concerned about the disappearance of Article 4-2a. This article provided that a platform would not be bound by one of the three criteria out of the seven required to trigger the presumption, if it already fulfilled this criterion by virtue of an agreement or a national text.
This article had been replaced by a strengthened recital (24) and definition of the presumption criteria (“triggered either by the digital labour platforms’ applicable terms and conditions or its acting in practice”).
However, this deletion had raised questions among delegations concerned about respecting the work of the truly self-employed and the national collective models already in place.
In its compromise of 14 April, the Swedish Presidency starts by tightening up the article concerning the material effects of reclassification as a worker (article 3-1). In particular, it redefines the right of bogus self-employed workers reclassified as employees to benefit from the same social rights as employees.
The Presidency “has looked for solutions which would ensure that reclassified workers enjoy the rights related to their employment relationship, while respecting Member States’ procedural autonomy (...) by the phrase “in a comparable situation”. However, this proposal was regarded as unclear by some delegations.”
The Presidency now proposes to state that Member States shall “ensure that platform workers enjoy the rights related to that employment relationship”, as defined by law, collective agreements or practice in the Member States, the note explains.
In order to address the concerns of some countries about the effects of Article 4(2)(a), the Presidency had also decided, in addition to deleting it, to reinforce in the chapeau of Article 4(1) the fact that the presumption criteria are triggered either by the applicable terms and conditions of the digital labour platform or by its action in practice. It also proposed a recital to reinforce this choice.
This approach was “welcomed” by several delegations on 27 March, writes the Presidency. However, clarification was sought on recital 24, which has therefore been split in two with a stronger reference to the Commission’s guidelines on the application of EU competition law to collective agreements concerning the working conditions of solo self-employed people.
On the possibility for Member States to give national administrative authorities discretion not to apply the presumption, if two cumulative conditions are met, the Presidency modified the second condition referring to the national definition of worker (“where it is clear that the contractual relationship in question is not an employment relationship as defined by the law, collective agreements or practice in force in the Member State”).
“The reference to the national definition of worker gave rise to questions and hesitations”. The text therefore replaces the second condition with a reference that it must be clear “that the person performing platform work is not a platform worker”.
As for the obligation of Member States to ensure that the use of intermediaries does not lead to a reduction in the protections afforded by the directive, the Presidency calls for “a clear but general obligation”, which is the safest option given the diversity of situations in the Member States.
The Commission, “in its review, shall pay particular attention to the impact of the use of intermediaries on the overall implementation of the directive”, the Presidency adds.
Link to the text: https://aeur.eu/f/6c4 (Original version in French by Solenn Paulic)