The EU27 employment and social affairs ministers finally approved, on Monday 11 March, the agreement reached on 8 February with the European Parliament regarding digital platform workers (see EUROPE 13347/8). This, without any changes.
This new directive, presented by the Commission at the end of 2021, creates a legal presumption of salaried status that could potentially benefit more than 5 million workers in the EU (out of 28 million), whom the Commission considers to be wrongly classified as self-employed.
Speaking after the meeting, the European Commissioner for Employment, Nicolas Schmit, welcomed this “as a great day for the self-employed. The new EU rules will give platform workers more rights and protections without hindering the platforms’ ability to grow”. He also described the agreement as “historic”, constituting the first European regulation of algorithmic management in the world of work.
The Belgian Deputy Prime Minister and Minister for Employment, Pierre-Yves Dermagne, welcomed the fact that the EU Council had finally reached “a solid agreement”, particularly for the millions of people “in the grey area of social protection”.
He is also “supported by 25 Member States”, he added, assuring that this text will not attack a new economy that is “booming” and indispensable to the economies and societies of the Member States, but will provide “legal certainty that really corresponds to this form of work in the field”.
This positive outcome was made possible by the Estonian government’s decision to accept this agreement, but also by a “last minute surprise” from Athens, as Pierre-Yves Dermagne described it.
The Greek government, which until now had always rejected the agreements reached, was also able, “in a spirit of compromise”, to approve the latest negotiations, said Minister Domna-Maria Michailidou, while expressing concerns, given that the tourism industry employs a large number of platform workers.
These two reversals of position enabled the Belgian Presidency of the EU Council to reach a “qualified majority” in favour of this text.
France and Germany were the only two Member States not to support the agreement, with the German minister, Hubertus Heil, once again quickly indicating that his country would have to abstain on the text due to the lack of support from Christian Lindner’s Liberals.
Paris, on the other hand, disagreed with the substance of the text, even though France indicated that it would be able to support the agreement in the next few days when it is formally validated by the EU Council, should “an addendum” be attached to it.
The French representative on Coreper, Cyril Piquemal, pointed out that “France has argued, since the start of the negotiations, for the legal presumption mechanism proposed by the directive to be clear and based on criteria that allow false self-employed workers to be covered without calling into question the situation of genuinely self-employed workers”.
While the text has evolved and now leaves it up to the Member States themselves to determine the facts characterising the control and direction on which the legal presumption of salaried status is based, the French Representative asked that the legal presumption should not apply “automatically to all platform work situations, but to those where a subordinate relationship characterised by control and direction is established”.
It “should also be for the Member States alone to determine these concepts of ‘control and direction’, as provided for in Article 5(1) of the Directive, and the ‘effective’ presumption of salaried status must constitute an effective procedural facility aimed at guaranteeing the workers concerned effective access to all the rights deriving from their employment status”.
For the Commission and the Belgian Presidency, however, the text presented is fully capable of responding to “all the concerns expressed by the Member States”. On Monday, at the end of the meeting, Commissioner Nicolas Schmit said that he saw “no point in adding declarations to declarations”, despite the fact that the Commission had already set out its views on the effectiveness of the presumption procedure in mid-February.
For her part, Spain’s Minister for Employment, Yolanda Diaz, while supporting the agreement, also criticised France’s desire to secure a derogation and reiterated her disappointment at the agreement’s lack of ambition.
The country referred once again to the declaration made in mid-February, when the agreement was rejected by the Member States (see EUROPE 13352/1). Madrid regretted the initial ambition of the Commission’s proposal and the weakness of the presumption.
Ranked among the so-called ‘progressive’ countries on this text, Luxembourg also expressed its concerns on Monday about a “shopping list” system for platforms that could target member countries with the most favourable legislation.
As a reminder, the text approved by the ministers on Monday abolished the logic of fixed criteria to trigger the presumption of employees and gives Member States the option of defining, in accordance with their labour law and collective agreement systems, the facts indicating control and subordination of the worker by a platform.
This presumption may be activated by the employee, their representatives or by a national labour institution.
The platform will be able to challenge this procedure, but will then have to prove that it is working with genuinely self-employed people, again on the basis of national employment law.
The text also creates the first-ever European regulation of artificial intelligence in the world of work by imposing greater transparency on algorithmic management and prohibiting certain types of decision, such as suspending accounts.
Platforms will also be prohibited from using algorithms to process emotional or psychological data.
However, several sectors remain excluded from this directive, such as the traditional taxi sector. Depending on national transpositions,’click workers’ (content moderators) could also be excluded.
The European Parliament rapporteur, Elisabetta Gualmini (S&D), said she was “very pleased and proud. We won - for platform workers and good employers, against aggressive lobbying by exploiting platform giants, backed to the hilt by French President Emmanuel Macron and his liberals. With the European elections less than 100 days away, Europeans will remember”.
“We have negotiated an historic agreement that will give platform workers dignity, protection and rights. It will also preserve genuine self-employed status, prevent unfair competition and introduce ground-breaking rules for algorithmic management”, she welcomed.
European trade unions also welcomed a directive that will give these workers new rights, such as access to paid leave or sick leave.
“Throughout the negotiations, the French President tried to torpedo the presumption of salaried status. To serve Uber rather than the workers”, said the French MEP Leïla Chaibi (The Left) and shadow rapporteur.
Unhappy platforms
“This text, although an improvement on previous versions, fails to achieve a harmonised approach across the EU, creating even more legal uncertainty for car-sharing drivers. These drivers have overwhelmingly expressed their desire to remain independent, and we call on the Member States to ensure that platform workers have the opportunity to retain the independence to which they are so attached to when drafting national laws”. (Original version in French by Solenn Paulic)