Over the weekend of 20 January, the Belgian Presidency of the EU Council sent Member States a new compromise document on digital platform workers, with a view to requesting a mandate from Coreper on 24 January and resuming trilogue discussions with the European Parliament on 30 January.
The latest text proposed by the Belgian Presidency, dated 20 January, slightly amends the text of 10 January, in a direction that is still relatively favourable to the member countries that had rejected the text negotiated with the European Parliament on 22 December (see EUROPE 13330/25, 13320/14) and wanted to return to the general approach of the EU Council of June 2023.
Thus, again to satisfy some of these countries, criterion or indicator b, according to the terminology used by the Belgian Presidency, has been rewritten more strictly, with the addition of the adjective “close” supervision of the worker’s performance by “electronical means” (the reference is reintroduced here after having been deleted from the 10 January text).
Some delegations, notably France, had expressed dissatisfaction with criterion b, the previous wording of which was considered too broad.
The new text also specifies, in Recital 32, the language of this indicator b, which should include concrete elements showing that the digital work platform “closely supervises, by electronical means, the performance of the work by regularly assessing or reviewing the performance or progress of the work, by monitoring or thoroughly checking the quality of the results of the work of the persons concerned, including by camera surveillance, location tracking, counting keystrokes, taking screenshots or using other computer or smartphone functions. Supervision does not include the use of electronic tools, such as geolocation, to match the person performing the platform work with the recipient of the service”.
The text of 20 January further clarifies the language on the exclusion of tax, criminal or social security authorities from the legal presumption procedure, as requested by many delegations, explains the Presidency. It maintains recital 31 as it stands, referred to by its critics as the “French derogation” because it corresponds to the French model in place for these workers.
This recital thus ensures that a platform which is already subject to obligations under national law, in particular by virtue of collective agreements, will not be considered as fulfilling a criterion/indicator under the Directive.
In particular, it has been specified (in recital 31, the latest wording of which remains similar to that of 10 January, editor’s note) that “collective agreements applicable to genuine solo self-employed persons, are part of those legal obligations, with which the digital labour platforms might need to comply and which are therefore not as such to be understood as fulfilling one or more indicators of control and direction for triggering the legal presumption”, explains the Presidency in a note accompanying this new compromise.
The latest compromise also relaxes the sanctions against platforms and no longer refers to the company’s turnover
At the same time, the 20 January version reinforces the language of a non-regression clause and, in what appears to be a gesture towards the European Parliament, insists that Member States can always extend, at their own level, the list of criteria/indicators for identifying control over the worker.
The text states that “Article 5(1) shall not affect national rules providing for a higher number of indicators or for reclassification procedures which are more favourable to platform workers”.
On the issue of automatic inspections in a platform when a decision is made to reclassify one of its workers as an employee, the Belgian Presidency explains that it has reintroduced this idea into the text.
“Delegations have criticised Article 7 as being too prescriptive in terms of the work of enforcement authorities and have pointed out that it would impinge on the discretionary powers of labour inspectorates”, says the Presidency.
However, “given that this point is very important to the European Parliament and that a change in employment status confirmed by a final decision must, in any event, be taken into account by the supervisory authorities when they take their discretionary decision on subsequent checks and inspections, this idea has been incorporated into Article 7(1)(c) and Recital 38”.
In its explanatory note, the Belgian Presidency in any case explains that there is very little time left for the co-legislators to validate this directive, which it believes represents progress in the EU’s social acquis and for the rights of European workers. It is therefore calling on the Member States to accept a text that it believes to be balanced on 24 January.
However, several European Parliament sources consider that this text falls far short of the provisional agreement reached with the Spanish Presidency, and find it difficult to see how the various rapporteurs could accept this latest draft. A meeting of the European Parliament rapporteurs is also scheduled for 24 January.
In any case, the European Trade Union Confederation rejects this text and its “inoperative” legal presumption of salaried status, which would further weaken the current situation of these workers (see related article).
Links to documents: https://aeur.eu/f/aig; https://aeur.eu/f/aih (Original version in French by Solenn Paulic)