Almost 2 months after an initial provisional agreement on the subject, which in the end was rejected by the Member States on 22 December 2023 (see EUROPE 13320/14), negotiators from the European Parliament and the Belgian Presidency of the EU Council once again reached, on Thursday 8 February, a provisional agreement on the Platform Work Directive which will oblige the Member States to create a mechanism for legal presumption of salaried employment, leaving them free to define at their level the facts, in particular, control of the worker, justifying the triggering of this procedure.
This agreement, based on the joint exploratory text negotiated last week between the two parties (see EUROPE 13343/8), still has to be validated by the Member States, who will in turn examine the dossier on Friday 9 February. At this stage, a vote is scheduled for 16 February, although things could be organised differently on Friday depending on support for the agreement.
Reversing the trend of the work carried out until mid-January, the provisional agreement puts an end to the system of identifying criteria/indicators harmonised at EU level to help the authorities reclassify a bogus self-employed worker as an employee.
The provisional agreement introduces “a presumption of an employment relationship that is triggered when facts indicating control and direction are present, according to national law and collective agreements in place, as well as taking into account the case law of the European Court of Justice”.
The directive obliges EU countries to establish a rebuttable legal presumption of employment at national level, and the burden of proof lies with the platform, which will have to prove that the contractual relationship is not one of employment.
The agreement also covers new rules on algorithmic management to ensure that a person working on a platform cannot be dismissed on the basis of a decision taken by an algorithm or automated decision-making system. Instead, platforms must provide human oversight of important decisions that directly affect people working on the platform, says a European Parliament press release.
The directive also improves transparency and data protection obligations.
A new role for the Commission
However, it is on the articles relating to the correct determination of employment status and the legal presumption procedure, as well as on the accompanying measures, that the negotiations are most tense.
On Thursday morning, the co-legislators made a number of changes to these parts of the directive, giving the Commission a new role in monitoring the implementation of the legal presumption in the Member States through a new provision in Article 25.
The aim here would be to reassure countries concerned about a level playing field between Member States. A new recital 31b has also been created on the effectiveness of legal presumption procedures, which incorporates some of the lengthy wording of a previous version of recital 31a.
Recital 31b thus stresses that legal presumption procedures must not overburden those who have to provide evidence of the contractual employment relationship.
The wording has also been slightly amended to exclude tax, criminal and social security authorities from this procedure, as well as labour inspections and controls following a reclassification decision.
According to partial information gathered on Thursday, a few adjustments have also been made to other parts of the text, concerning intermediaries, transparency and penalties, but these are considered to be minor.
European Commissioner Nicolas Schmit, the Belgian Presidency of the EU Council and the rapporteur, Elisabetta Gualmini (S&D), welcomed this preliminary agreement, with the Commissioner hoping in particular for a “positive result” the following day within the Member States.
Contacted by EUROPE on Thursday, a number of delegations had not yet been able to take a position or predict a result. France, in any case, will be a key country, having requested further clarification this week, particularly on the concept of an individual relationship between the platform and the worker.
Subject to further assessment, however, the agreement reached on Thursday morning did not appear to provide any new evidence in favour of the French requests.
Unhappy platforms
Move EU, which represents Uber in particular, said that the provisional agreement “is not the result of more than 2 years of deliberations, but of a rushed process to agree to any Directive at any price, despite lack of support from many Member States”.
“Given the vague nature of the text and the lack of a thorough impact assessment, its adoption would lead to uncertainty for national labour systems and for hundreds of thousands of professional drivers, while greatly hindering the activities of ride-hailing platforms”, says the association.
Move EU therefore calls on the EU Council to reject these negotiations. For Delivery Platforms Europe, which represents Deliveroo and Uber Eats among others, “the provisional agreement is a missed opportunity to create clear rules for the benefit of platform workers and the sector as a whole. Getting it right is more important than getting a deal and we hope Member States will prioritise getting it right”. (Original version in French by Solenn Paulic)