On Friday 27 October, the Spanish Presidency of the Council of the EU will survey the representatives of the Member States on the room for manoeuvre it has to reach agreement with the European Parliament on the Directive on workers on digital platforms, and in particular the issue of the legal presumption of salaried status and its rebuttal.
This discussion will serve to prepare the next trilogue meeting, scheduled for 9 November.
Following the meeting of a working group on 19 October, during which a number of Member States expressed their opposition to the avenues of work presented by the Italian rapporteur, Elisabetta Gualmini (S&D) (see EUROPE 13266/21) - believing, for example, that the scope of the legal presumption was still too broad and still fearing that automatic reclassification would apply to genuinely independent workers - the Presidency is therefore trying to accommodate the Member States’ sensitivities, both on the way in which a presumption procedure can be initiated and on the material effects of a reclassification procedure.
On 19 October, a number of delegations reiterated their attachment to the very fragile balance achieved on 12 June at the EU Council (see EUROPE 13199/1) and expressed the hope that the Spanish Presidency would not depart from it. For some Member States, Friday’s discussion should therefore only provide an opportunity for clarification, not a change in the mandate of the Council of the EU.
According to a preparatory note for the meeting of the 27th, dated 20 October, most delegations had, for example, found Parliament’s proposal to trigger the legal presumption when only one element is met “unacceptable”, whereas the Council of the EU has set three out of seven criteria to be met.
A number of Member States were also concerned about the material consequences of the platform failing to rebut, for example, the legal presumption, with Parliament stipulating that reclassification as an ‘employee’ should take place automatically.
“The EU Council’s general approach is silent on the question of what happens if the legal presumption is not rebutted. Parliament, on the other hand, is seeking to regulate in depth what happens after the rebuttal phase”, explains the Spanish Presidency, which believes that this goes too far.
On Friday, the Presidency will nevertheless ask delegations to express their views on the possibility of “making it clear that the existence of an employment relationship must be established by the competent authority or court, if no party rebuts the legal presumption”.
While Parliament wishes to apply the legal presumption to all procedures, while the EU Council has excluded social security procedures, tax procedures and criminal procedures from the relevant procedures in which the legal presumption applies, the Presidency does not intend to compromise with Parliament on this point.
On the other hand, it considers that “it would be useful for the social security, tax and criminal authorities to be informed of a decision on the establishment of an employment relationship where such a decision is relevant”.
The Presidency is also proposing to give the competent national authorities a “discretionary power” when assessing whether there could be a misclassification on the one hand, but on the “other there would be an obligation to initiate proceedings if they come to the conclusion that there could be a misclassification”.
Whereas Parliament wants to introduce a provision on the application of the legal presumption in proceedings brought by people doing platform work and specifies that these proceedings can also be brought by trade unions on behalf of the person doing the work and that the legal presumption applies, the Presidency prefers to indicate that people doing platform work can bring proceedings and that they can be represented, but the conditions for this representation are set by national law. (Original version in French by Solenn Paulic)