Member State experts will be invited, on Tuesday 21 November, to the EU Council’s Working Party on Social Questions to support possible avenues of compromise with the European Parliament on a number of aspects of the Digital Platform Workers Directive, but outside the particularly complex chapter on legal presumption.
The Spanish Presidency of the EU Council wants to get the Member States to make some concessions to the European Parliament on a series of chapters before tackling once again the issue of the legal presumption of salaried status (criteria for triggering the presumption, material consequences and procedures for rebutting the presumption), where it has very little room for manoeuvre.
With regard to this aspect of the legal presumption, the Spanish Presidency reportedly intends to convene a direct meeting of the permanent representatives, possibly on 24 November, to assess the margins of flexibility and the gestures that could be made to the EU Council, as a number of sources indicated at the start of the week.
Pending this discussion by Coreper, which will prepare the trilogue on 28 November, the national experts will have to say on 21 November whether they support the new Spanish proposals and wording on around ten points, summarised in a note seen by EUROPE.
The first area concerns the (trade union) representatives of platform workers and the definition of representatives.
The Spanish Presidency believes that the EU Council could accept the European Parliament’ terms, which refer to trade unions, but also to other forms of representation, with some adjustments, as not all Member States have mechanisms for recognising trade unions.
On the possibility of collective or group action by platform workers, the Presidency would like to know whether the Member States would be prepared to accept an obligation introducing the right to collective action for persons performing platform work in their national legal order or whether they want to leave the possibility of collective action to the discretion of the Member States.
On the question of intermediaries, the European Parliament wants a system of liability under which the digital work platform and the intermediary, or any subcontractor in a chain of subcontracting, must be held jointly and severally liable. The EU Council has not added a rule, as the cases of subcontracting and the legal frameworks in the Member States are too different for a single solution, and subcontracting cannot be considered problematic as such.
However, the Presidency is proposing some new wording to take account of the European Parliament’s argument of establishing, if deemed necessary, the mechanisms ensuring joint and several liability within subcontracting chains, along with the provision of effective access to remedies.
Suggestions still relate to the ban on the use of personal data. A partial agreement on this provision was reached on 8 November, but a number of points remain open, such as the scope of the provision and the prohibition on processing to predict the exercise of fundamental rights.
The EU Council has chosen to apply specific prohibitions on the processing of personal data only to automated control and decision-making systems. And the European Parliament wants this provision to apply to all processing of personal data.
The Presidency believes that the limited scope of the article should be maintained, but would still like the Member States’ opinion on a possible extension of the scope.
The discussion will also focus on the scope of access to evidence, with the obligation for Member States to ensure that the courts or authorities are able to order the digital labour platform to disclose any relevant evidence that is under their control, or on the penalties laid down for platforms, which the European Parliament has made too severe and prescriptive, says the Presidency. However, it might be useful to spell out in more concrete terms the concepts of effective, proportionate and dissuasive penalties.
With regard to the requirement for conducting an inspection following reclassification as an employee, the European Parliament proposes that the framework should incorporate an obligation to conduct inspections whenever an individual engaged in platform work is newly identified as a platform worker. This inspection should take place within one month of the recognition, aimed at verifying the employment status of other individuals performing platform work for the same digital labour platform. The Parliament emphasises the importance of explicitly stating this obligation in a recital.
The Presidency believes it is essential to preserve the discretion of enforcement authorities. It contends that the Directive should not include specific and time-bound obligations for these authorities to conduct inspections. It nevertheless asks the Member States to reflect on this recital.
With regards to the prohibition on automated decision-making systems for specific decision types, the Presidency deems it politically challenging to justify the notion that machines should be authorised to make decisions regarding redundancy or contract termination.
It suggests a compromise where any decision to limit, suspend, or terminate the contractual relationship or the platform worker’s account, or any decision resulting in equivalent detriment, is made by a human being rather than solely relying on automated decision-making systems. (Original version in French by Solenn Paulic)