On Friday 2 February, the Belgian Presidency of the Council of the EU presented the permanent representatives of the Member States with a compromise text prepared with the teams of the European Parliament’s rapporteur which is due to be discussed more formally by the Member States on 7 February before a trilogue with the European Parliament on 8 February.
A working group of the EU Council is also due to examine this text on Monday 5 February.
This preliminary text, as seen by EUROPE, sets out six principles for Article 5 on the legal presumption of salaried employment, rather than criteria/indicators for triggering the presumption, on which there was no consensus.
The legal presumption mechanism is thus expected to be implemented at national level without any criteria or indicators. A new Recital 31a has also been drafted, with the joint text still dealing with the correct determination of employment status and accompanying measures (e.g. controls by labour inspectorates) or a non-regression clause.
According to a preliminary analysis, the text would in any case no longer contain what had been crudely termed the ‘French derogation’ for recognising the effects of collective agreements reached at national level between platforms and self-employed workers.
On Article 5, in any case, the text resulting from the discussions included the following points:
1. The contractual relationship between a digital work platform and a person performing platform work through that platform is legally presumed to be an employment relationship where facts indicating control and direction, according to national law, collective agreements or practice in force in the Member States with consideration to the case-law of the Court of Justice, are found.
Where the digital work platform seeks to rebut the legal presumption, it has the burden of proving that the contractual relationship in question is not an employment relationship as defined by law, collective agreements or the practices in force in the Member States with consideration to the case-law of the Court of Justice;
2. To this effect, Member States shall establish an effective rebuttable legal presumption of employment “that constitutes a procedural facilitation to the benefit of persons performing platform work, and Member States shall ensure that this legal presumption does not have the effect of increasing the burden of requirements on persons performing platform work, or their representatives”, in proceedings ascertaining their employment status;
3. The legal presumption applies in all relevant administrative or judicial proceedings where the correct determination of the employment status of the person performing platform work is at stake. “The legal presumption shall not apply to proceedings which solely concern tax, criminal or social security matters. However, Member States may apply the legal presumption in those proceedings as a matter of national law”;
4. Persons performing platform work and, in accordance with national law and practice, their representatives, shall have the right to initiate the proceedings referred to in the first subparagraph of paragraph 3 in order to ascertain the correct employment status of the person performing platform work;
5. Where a national competent authority considers that a person performing platform work may be wrongly classified, it shall initiate “appropriate actions and proceedings”, in accordance with national law and practice, in order to verify the professional status of that person;
6. With regard to contractual relationships entered into before and still ongoing on the date set out in Article 30(1), the legal presumption referred to in this Article shall only apply to the period starting from that date.
Recital 31a, for its part, has been further shortened compared to a previous version circulated the day before, and explains in particular that control and direction can take different forms in concreto, given that the platform economy model is constantly evolving and that it is often difficult for people carrying out this work on a platform to have appropriate access to the tools and equipment needed to assert before a competent authority the true nature of their contractual relationship and the rights arising therefrom.
“Member States should therefore lay down measures providing for an effective procedural facilitation for persons performing platform work when ascertaining the correct determination of their employment status. In this light, the presumption of an employment relationship in favour of the persons performing platform work is an effective instrument which greatly contributes to the improvement of living and working conditions of platform workers”, states the latest text.
While a number of sources contacted had yet to carry out an analysis on 2 February, other observers felt that, subject to further assessment, particularly of the possible meaning of the terms “appropriate actions and procedures”, the text should logically represent an improvement for the European Parliament, which had rejected outright the text presented in trilogue on 30 January (see EUROPE 13337/13, 13339/29), which it claimed rendered the legal presumption inapplicable. EUROPE will continue to follow this story. (Original version in French by Solenn Paulic)