The Member States, meeting on Monday 5 February in the EU Council’s Working Party on Social Questions, discussed the latest compromise text from the Belgian Presidency of the EU Council, based on the exploratory text negotiated with the European Parliament (see EUROPE 13342/16), but had not yet managed to define a clear position, according to several sources.
They still had to send their comments to the Belgian Presidency so that it could circulate a new text on the evening of 5 or the morning of 6 February, with a view to a discussion at Member State level on 7 February and a new, and possibly final, trilogue with the European Parliament on 8 February.
Several delegations reportedly indicated on Monday morning that they needed more time, whereas the document prepared with the European Parliament was not presented until the afternoon of Friday 2 February, and the approach now being pursued by the Presidency and Parliament is very different.
It entrusts the implementation of legal presumption mechanisms to the national level on the basis of general European principles and minimum requirements, and abandons the system of harmonised criteria/indicators for triggering this legal presumption that was at the heart of the Commission’s proposal for a directive at the end of 2021.
Several delegations expressed reservations about the review, some of which were positive. Some countries have also shown a degree of support, such as Greece, which until now had been opposed to the various texts presented. Sweden is also said to have expressed some satisfaction with the new flexibility given to Member States.
But some countries have also raised concerns about a possible imbalance between the mechanisms put in place by the Member States, which could encourage platforms to seek out the most favourable legislation, creating a problem of a level playing field.
The Netherlands and Luxembourg are said to have raised these points in particular.
Other questions would have been asked about the obligation for Member States to establish an effective and rebuttable legal presumption of employment in their national law, in particular the meaning of ‘effective’.
The text discussed on Monday only covered the chapters on determining the right employment status, the legal presumption of salaried status, a new Recital 31, accompanying measures and a non-regression clause.
The Belgian Presidency still had to present new compromises on the other points still open in the proposed directive.
The compromise submitted on Monday and dated 3 February incorporated the text negotiated with the European Parliament on 2 February, setting out the 6 main points of this legal presumption of salaried status.
These 6 main points were themselves derived from four major general principles agreed between the European Parliament and the Belgian Presidency at the trilogue on 30 January (the presumption must improve and not deteriorate classification; Member States must incorporate a rebuttable presumption into their national law; the reclassification decision is made on a national basis, taking into consideration the case-law of the CJEU; in the event of a rebuttal by the platform, the burden of proof must be reversed and must rest with the platform).
And the Presidency confirmed that “the reference to indicators and threshold in Article 5, paragraph 1 of the revised mandate has been replaced by a reference to ‘facts indicating control and direction, according to national law, collective agreements or practice in force in the Member States and with consideration to the case-law of the Court of Justice’ that are found”.
In consequence, there are no harmonised conditions for the triggering of the legal presumption in the text of the Directive. It is for the Member States to determine what facts indicating control and direction are to be found for the purpose of triggering the legal presumption”.
According to several sources, France has raised a number of questions about the definition of these facts and the possibility for Member States to introduce national criteria.
The Presidency goes on to explain, with regard to point 6 and controls and inspections in the event of reclassification, that “adjustments were made. The discretion of Member States to assess the appropriateness of controls and inspections was kept”.
The Italian rapporteur Elisabetta Gualmini (S&D)’s teams will meet in Strasbourg on Wednesday afternoon to prepare for the trilogue.
Link to document dated 3 February: https://aeur.eu/f/aps (Original version in French by Solenn Paulic)