As indicated on 24 January at the meeting with the representatives of the Member States, the Belgian Presidency of the EU Council sent delegations a new compromise text on the directive on digital platform workers in which, on the issue of the legal presumption of salaried status and the criteria/indicators required to have it triggered, it adopts the same wording as the one the EU Council did in its ‘general approach’ of June 2023 (see EUROPE 13199/1).
As seen by EUROPE, this latest text, dated 24 January, only modifies article 5 and returns to the system of 3 out of 7 indicators.
It states that “The contractual relationship between a digital labour platform and a person performing platform work through that platform shall be legally presumed to be an employment relationship when any three of the following indicators of control and direction are found, by virtue of […] unilaterally determined terms and conditions or in practice: (a) The digital labour platform determines upper limits for the level of remuneration […]; (b) The digital labour platform requires the person performing platform work to respect specific rules with regard to appearance, conduct towards the recipient of the service or performance of the work; (c) The digital labour platform supervises the performance of work including by electronic means; (d) The digital labour platform restricts the freedom, including through sanctions, to organise one’s work by limiting the discretion to choose one’s working hours or periods of absence; (d-a) The digital labour platform restricts the freedom, including through sanctions, to organise one’s work by limiting the discretion to accept or to refuse tasks; (d-b) The digital labour platform restricts the freedom, including through sanctions, to organise one’s work by limiting the discretion to use subcontractors or substitutes; (e) The digital labour platform restricts the possibility to build a client base or to perform work for any third party”.
As in the June 2023 text, the situation of a platform worker will also have to cover at least three of these criteria for him to be able to claim to be reclassified as an employee.
The latest text, which will be discussed on Friday 26 January, also maintains Recital 31 on the effect of national collective agreements with regard to the indicators set out in the directive, and also maintains the derogation for tax, criminal law and social security authorities. It also continues to refer to unilaterally imposed terms and conditions when some countries have expressed concern about the removal of the term “agreed terms and conditions”.
Although several sources indicated on Wednesday 24 January that an agreement was very close, the discussions were sometimes stormy, according to other sources, with countries such as Spain and Luxembourg criticising the Belgian Presidency’s wording on Article 5, and Madrid taking the view that the version dated 20 January (see EUROPE 13333/7) did not in any way allow workers to be reclassified.
France also had to defend itself with regard to Recital 31, which some sources, notably in the European Parliament, criticised as allowing France to escape the obligations of this directive, which Paris disputes.
Meanwhile, according to other observers, a fairly large group of countries (14) was in a position on Wednesday to support the draft mandate of 20 January before the Belgian Presidency suggested going back on article 5 of the agreement of 12 June to meet the concerns expressed by certain countries. The Member States are said to have then asked the Presidency for a period of reflection. In any case, Germany reportedly reiterated its intention not to take a position on this text.
Parliament, for its part, held a meeting on Wednesday 24 January and remains ready to go to the trilogue on 30 January, if the EU Council manages to give itself a new mandate on 26 January.
Over the last few days, the majority of MEPs have been opposed to the text submitted to the Member States on 20 January, and on 25 January some parliamentary sources also mocked the apparent disarray of the EU Council of the EU, which was acting in haste and even resorted to a sort of tinkering job on Article 5. (Original version in French by Solenn Paulic)