At the time of going to press on Thursday 1 February, teams from the European Parliament, the Belgian Presidency of the EU Council and the Commission were still finalising a new draft text on digital platform workers, trying in particular to reach agreement on the chapters on the legal presumption of salaried status, determining the right employment status, accompanying measures and Recital 31, which the European Parliament considers problematic.
An information item under ‘other business’ was still scheduled for the Committee of Permanent Representatives meeting on 2 February, following the relatively short trilogue on 30 January (see EUROPE 13339/29).
In particular, the new text was to abolish the lists of criteria/indicators set out to activate the presumption of salaried status and replace these elements with a series of principles, although the co-legislators have always maintained very divergent positions on this point, particularly as regards their number or degree of precision.
The new chapter on legal presumption could therefore contain a series of principles, such as the fact that the contractual relationship between a digital labour platform and a person performing platform work via that platform would be legally presumed to be an employment relationship where facts indicating control and direction, according to national legislation, collective agreements or practices in force in the Member States and with consideration to the case-law of the Court of Justice, are found.
If the digital labour platform sought to rebut the legal presumption, it would then have to prove that the contractual relationship in question is not an employment relationship as defined by the law, collective agreements or practices in force in the Member States, with consideration to the case-law of the Court of Justice.
Another possible principle: Member States would be invited, in this chapter, to establish an effective rebuttable legal presumption of employment that constitutes a procedural facilitation to the benefit of people performing platform work. Member States should ensure that this legal presumption does not have the effect of increasing the burden of requirements imposed on people performing the platform work or their representatives in proceedings to determine their employment status.
The legal presumption would still not apply to proceedings dealing solely with tax, criminal or social security matters.
The text could also, in a Recital 31a, reformulate the references to collective agreements or practices in force in the Member States, and remove the notions of applicable general conditions linked to the contract or applied in practice.
No source contacted by EUROPE had yet been able to confirm these approaches, but they could nevertheless confirm that a split in the text of the directive, separating the legal presumption of salaried status from the rest of the text, has not been envisaged.
EUROPE will continue to follow this story. (Original version in French by Solenn Paulic)