Negotiators from the European Parliament and the EU Council discussed possible compromises on the directive on digital platform workers until late at night on Tuesday 28 November, with a number of issues closed on this occasion, such as the question of obligations for intermediaries and subcontractors or on the algorithmic management of work.
Led this time by Agnès Jongerius (S&D, Dutch), who was temporarily replacing the rapporteur, Elisabetta Gualmini (S&D, Italian), the European Parliament team has not yet obtained the gestures it was expecting from the EU Council on the legal presumption of salaried status, presented as one of the most complex chapters in the negotiations.
On this occasion, the Italian rapporteur proposed new avenues and made Parliament’s mandate even more flexible, for example by deleting a number of indicators to determine the employee status.
But the Spanish Presidency, while acknowledging the work and gestures of the European Parliament, is said to have asked it to make a further effort, having pointed out how little room for manoeuvre it has in the EU Council on this subject. For example, it reportedly asked the European Parliament to further reduce the number of indicators used to identify an employee relationship.
“The negotiators were far from reaching an agreement on this point”, summarised a diplomatic source.
On Friday 24 November, the Presidency noted that the majority of Member States were still unwilling to compromise on these aspects, the proposal to revert to 2 out of 5 criteria to trigger the legal presumption, for example, was not supported. In any case, the legal presumption of salaried status was discussed at the very end of the meeting on Tuesday evening.
Before that, the co-legislators had adopted agreements on subcontracting and intermediaries with more specific language, for example, but the European Parliament did not succeed in imposing the principle of joint responsibility throughout the subcontracting chain. The decision to impose joint responsibility would remain in the hands of the Member States.
On algorithmic management, an agreement has also been reached on total bans on the management of employee data other than that strictly linked to the employee’s mission; the European Parliament is said to have wanted to clarify and strengthen the concept of consent to data processing in the context of work, but no agreement was reached on this point.
The negotiators therefore agreed to base themselves on the 'RGPD' regulation governing the protection of personal data, which provides a sufficient framework for these aspects. And the text will not mention the term consent. On Thursday 30 November, during an information point in the EP Committee on Employment and Social Affairs, its chairman Dragoș Pîslaru (Renew Europe, Romanian), basing himself on the assessment transmitted by Ms Gualmini, judged that this approach constituted a good result.
On the other hand, the negotiators were unable to reach agreement on other important points, such as the issue of sanctions, particularly financial sanctions, against platforms that do not comply with the rules, or the scope and inclusion of ‘crowdworkers’ (workers who ‘click’, for example, to moderate content or transcribe audio and whose working conditions are considered to be very precarious). The EU Council was unable to respond favourably at this stage. The Commission reportedly indicated that these workers are covered by its proposal, but did not necessarily explain its position.
There was also no agreement, at this stage, on the role of employee representatives and trade unions, although the legislative text will include a new article mentioning the promotion of collective bargaining in the digital platform sector.
On the other hand, it seems to be agreed that commercial agencies and traditional businesses, such as taxis, would not be included in the definition of digital platforms covered by the directive.
The next trilogue is scheduled for 12 December.
According to one source, there will then only be time “for a single trilogue” under the Spanish Presidency, leaving little time for the two parties to agree on the main points of the directive.
While some sources have suggested that there is a willingness on both sides to reach an agreement, the question of legal presumption remains a big unknown, and the European Parliament could also refuse to take any further steps towards the EU Council if the latter, in return, does not take any.
The Member States will discuss the results of this trilogue on the 1 December. (Original version in French by Solenn Paulic)