The EU employment and social affairs ministers succeeded, on Monday 12 June in Luxembourg, in reaching agreement on the proposed directive on platform workers, after several unsuccessful attempts by the Swedish Presidency of the EU Council.
The Swedish Minister for Employment, Paulina Brandberg, said that a “crucial step” has been taken by the ministers on this difficult issue.
The European Commissioner for Employment, Nicolas Schmit, for his part, welcomed the fact that this agreement could now pave the way for negotiations towards ‘a fair agreement” with the European Parliament, even though he acknowledged that the road ahead would not be easy.
The Parliament has a more ambitious mandate on certain aspects than the text agreed by the EU Council (see EUROPE 13113/8).
The directive creates the first European rules on platform working and algorithmic work management. It aims to help workers on digital platforms, such as Uber or Deliveroo, who turn out to be ‘bogus’ self-employed workers, to benefit from the right employment status and associated rights.
Nearly five million people in the EU are believed to be affected.
After several rejections in recent weeks (see EUROPE 13196/18), France finally swung the vote by agreeing to give the green light to the latest Swedish compromise, but with conditions attached.
The French Minister for Employment, Olivier Dussopt, said that the legal presumption of salaried status would only be “relevant and effective” if it excluded “genuine self-employed workers”.
At the same time, a number of countries (the Netherlands, Luxembourg, Belgium, Romania, Portugal and Slovenia) that are ‘pro-Commission’, in that they wish to move closer to the initial text presented by the Commission at the end of 2021 (see EUROPE 12850/14), were also able to support the latest compromise proposal, provided that it is not weakened any further.
Spain, on the other hand, was unable to follow them, judging the text to be insufficient. Madrid therefore abstained, as Spanish minister Yolanda Díaz Pérez had announced that morning.
Germany, which had no position, also held back, as did Greece, but for different reasons. According to Athens, the current text goes beyond the criteria laid down by the Court of Justice of the EU and could harm the economy of platforms.
A total of five countries were unable to agree to the compromise: Germany, Greece, Spain, Estonia and Latvia.
While twenty-two countries voted in favour, a large number of them were mainly keen to get negotiations underway in trilogue with the European Parliament in order to move forward, even if they were not genuinely enthusiastic about the agreement.
Content of the agreement
The political agreement in principle reached by the EU Council creates a principle of legal presumption of salaried employment, leading to the reclassification of bogus self-employed workers as salaried employees, as soon as 3 out of 7 criteria of subordination are met by a platform, including: the imposition of a limit on remuneration, rules on appearance, the difficulty of refusing an errand or the difficulty for the worker to have other customers.
This legal presumption could be activated at the request of the worker or an employment authority, and would have to be rebutted by the platform, which would then have to prove that it was indeed working with a self-employed person.
Reclassification would automatically give workers new social and salary rights.
The agreement also provides for greater transparency in the management of human resources algorithms. Workers must be informed of the use of automated monitoring and decision-making systems. In addition, these systems will always be controlled by qualified staff and human supervision will automatically intervene in decisions relating, for example, to the suspension of accounts.
Fragile balance
The Swedish Presidency of the EU Council had little room for manoeuvre, with every indication of support for one group of countries tipping the balance in favour of others.
In the end, France, like the group of so-called ‘pro-Commission’ countries, issued statements expressing a possible future reservation on the text, should it be modified in depth during the trilogues.
For Paris, the concern has always been to ensure that the directive does not reclassify genuine self-employed workers. While a number of collective agreements have recently been reached for self-employed meal delivery staff, the French government has always argued in favour of a derogation to prevent a platform, which already applies criteria under national provisions, from also falling under the seven criteria set out in the directive.
These derogations were introduced in a specific article (4-2-a), then moved to a recital (24) after opposition from several countries.
The French declaration stresses that “contractual clauses included in the terms and conditions, or practices of the digital labour platforms which only aim at complying with rules which are required by Union law, national law or collective agreements, shall not be taken into account to assess whether any of the criteria is fulfilled”.
For the so-called pro-Commission countries, the text approved “includes progress on algorithmic management, the need for human supervision of the activities of digital platforms” and an improvement on transparency in the work of digital platforms.
They had also obtained a non-regression clause assuring them that the directive would not weaken the more ambitious systems put in place in certain Member States.
But “the rebuttable legal presumption of a salaried status is less ambitious and effective than that proposed by the Commission. And it is necessary to establish a legal presumption without restrictions or derogations”, add these countries.
They will also seek to extend the scope of the legal presumption to tax, criminal and social security proceedings, although this remains voluntary under the agreed text.
Platform reactions
“Although the text approved today provides more clarity than the initial proposal, it still fails to draw a sufficiently clear dividing line between employment and self-employment and does little to improve the situation of genuine self-employed workers”, reacted Delivery Platform Europe (DPE) in a press release.
Link to the declarations: https://aeur.eu/f/7f8 ; https://aeur.eu/f/7f7
Link to mandate: https://aeur.eu/f/7f5 (Original version in French by Solenn Paulic)