Negotiators from the European Parliament and the Spanish Presidency of the EU Council will finally be meeting late on Wednesday 8 November, rather than on 9 November as initially planned, to continue discussions on the directive on digital platform workers, and in particular those on the most difficult point of the legal presumption of salaried status.
The Spanish Presidency of the EU Council wants to make progress on this issue as quickly as possible, because it knows that it could derail any agreement. To this end, it is expected to submit a new proposal to the European Parliament.
However, the latest discussions within the Member States had not left it much room for manoeuvre (see EUROPE 13286/21), as indicated in a document prepared by the Spanish Presidency for this new trilogue meeting.
In this document, the Presidency responds to the avenues put forward by the European Parliament at the beginning of October, but hardly departs from the mandate adopted by the EU Council on 12 June.
Among the clarifications made on the initiation of legal presumption proceedings, the Presidency is creating a new article on how to initiate legal presumption proceedings. It states that, where a national competent authority considers that a person carrying out platform work could be wrongly classified, it shall take appropriate measures, in accordance with national law and practice, to determine the correct professional status of that person.
It specifies that persons performing platform work and their representatives shall have access to procedures, in accordance with national law and practice, to establish the correct employment status of the person performing platform work.
It also confirms that, unless Member States lay down more favourable provisions, the contractual relationship between a digital work platform and a person performing platform work via that platform is legally presumed to be an employment relationship where three of the seven criteria indicating control and direction are met. The European Parliament proposed that only one criterion or index be met to establish this employment relationship. The Presidency has ruled out any idea of an index.
The document also states that this does not affect the discretion of the courts and authorities responsible for verifying the existence of an employment relationship, as defined by the law, collective agreements or practices in force in the Member State in question, taking into account the case law of the Court of Justice, regardless of the number of criteria met.
The legal presumption is still not applicable to tax, criminal and social security proceedings. “However, Member States may decide that the legal presumption is applicable in such proceedings by virtue of national law”, states the Presidency.
Another important point for Member States is that triggering the legal presumption will not automatically establish the existence of an employment relationship. The Presidency is not adding anything to this observation here and is modifying - or even weakening, according to some observers - the European Parliament’s offer, which indicated that this does not automatically lead to a reclassification.
On the rebuttal of the presumption, the Presidency is also reducing the language compared to that of the European Parliament, which focused in particular on proving that a worker is genuinely self-employed and defined the procedures for reclassification. The Presidency document is much more concise.
For example, the Presidency emphasises that where a digital work platform challenges an administrative or judicial decision determining the employment status of a person working on the platform, Member States may provide that such proceedings do not have suspensive effect on that decision.
The European Parliament proposes a more direct formulation, stipulating that the procedure arising from this challenge has no suspensive effect on the decision.
The Member States are expected to discuss the results of this trilogue on Friday 10 November, rather than on 15 November as initially planned. (Original version in French by Solenn Paulic)