On Wednesday 10 January, the Belgian Presidency of the Council of the European Union proposed a very first draft compromise on the Directive on digital platform workers, which will be discussed on 16 January by the ‘Social Affairs’ group of the Council of the European Union, before being referred to the Committee of Permanent Representatives.
In particular, the Presidency has chosen to adopt the text of the provisional agreement reached in mid-December between the Spanish Presidency of the Council of the EU and the European Parliament, which failed to gain support on 22 December (see EUROPE 13320/14).
The Belgian Presidency has therefore chosen, in spite of everything, to maintain the system of ‘two out of five criteria’ to activate the legal presumption of salaried status, when the mandate of the Council of the EU provides for a mechanism of ‘three out of seven criteria’.
The Presidency has also rewritten these criteria and introduced flexibilities, particularly with regard to labour inspections, in an attempt to win over countries that are particularly opposed to the provisional agreement with Parliament. France, as well as Greece and Italy, expressed strong reservations, as did eight to nine other countries.
According to Euractiv, France has expressly asked for a return to the ‘three out of seven criteria’ system, in a note sent to the Presidency.
In the documents dated 10 January accompanying the compromise proposals, as seen by EUROPE, the Presidency explains that it has taken due note of the outcome of the discussion on 22 December, “which confirmed that the provisional agreement reached does not have the support of the required majority of Member States”.
However, “in view of the very limited time available to conclude the negotiations, the Presidency considers that the text of the provisional agreement, even if it is not acceptable as such to a majority of Member States, should serve as a basis for further negotiations”.
The changes made to the text of the provisional agreement are therefore limited to the few points that are currently obstructing it, the Presidency explains: - criteria/indicators for triggering the legal presumption; - derogation for social security, taxation and criminal proceedings; - the discretionary power of the national competent authorities when they consider that a person could be wrongly classified; - the effects of reclassification decisions; - the consequences of no rebuttal or an unsuccessful rebuttal; - the excessively prescriptive nature of the accompanying measures.
In its compromise, the Presidency also seems to place greater emphasis on the definition of and respect for genuinely self-employed workers and to weaken somewhat the provisions on automatic labour law inspections of a platform when one of its workers has been reclassified as an employee.
The wording thus stipulates that “the national competent authorities should take account of the reclassification of a person carrying out platform work from the status of a self-employed person to that of a platform worker when deciding on the inspections to be carried out”.
The Presidency also seems to be insisting that tax, social security and criminal law authorities fall outside the scope of the text.
With regard to the five criteria, it rewrites them as follows: “(a) the digital labour platform determines upper limits for the level of remuneration […]; (b) the digital labour platform supervises the performance of work […]; (c) the digital labour platform restricts the freedom to organise one’s work by limiting the discretion to accept or to refuse tasks; (d) the digital labour platform restricts the freedom to organise one’s work by limiting the discretion to choose one’s working hours or periods of absence; (e) the digital labour platform restricts the freedom to organise one’s work, by limiting the discretion to use subcontractors or substitutes to perform the work”.
At this stage, the latest rewritten criteria no longer seem to include monitoring performance by electronic means, as provided for in the agreement with Parliament, even though a recital states that “digital labour platforms, and notably the algorithms through which they manage their operations, have a complete overview of all factual elements determining the […] nature of the relationship […]. Therefore, […] where they argue that the contractual relationship in question is not an employment relationship, it should be for the digital labour platform to prove so”.
It also appears that a provision favourable to countries like France is making a comeback; in this case, the fact that digital labour platforms may need to take steps to comply with legal obligations, including those arising from collective agreements with solo self-employed workers.
“In [...] cases where the digital labour platforms comply with measures which are required by law or collective agreements, applicable to genuine solo self-employed persons, this is not as such to be understood as fulfilling one or more indicators of control and direction for triggering the legal presumption under this Directive”, explains the Presidency.
Link to the text of the agreement with Parliament: https://aeur.eu/f/adi (Original version in French by Solenn Paulic)