EU Council makes new attempt at platform workers directive

The Swedish presidency of the EU Council proposed narrowing down the derogation for the presumption of employment, one of the most contentious parts of the platform workers directive, in a new attempt to bridge differences after negotiations broke down in December.

The Directive, first proposed by the Commission in December 2021, introduces a legal presumption of employment for misclassified ‘self-employed’ platform workers. It also seeks to regulate algorithmic management in the workplace – a first at the EU level.

The latest compromise text, seen by EURACTIV, is the Swedes’ first attempt to put pen to paper since they took over from the Czech presidency in January. In December, Prague fell short of a qualified majority as EU countries split on the contentious topic of worker status.

Disagreements were particularly fierce over the material applicability of the legal presumption of employment, which would automatically reclassify platform workers that would meet certain criteria as employees.

A few member states, such as France and Poland, warned that a too-prescriptive legal text might end self-employment and lead to mass reclassification. The Czech presidency proposed a derogation to the employment presumption, notably in the presence of social agreements.

By contrast, countries like Spain, Belgium, Germany and the Netherlands pushed for going back to the Commission’s initial text, which enshrined a set of presumption criteria within the legal text.

The Swedish Presidency organised a round of technical negotiations in February to garner member states’ views on the intricacies of the legal presumption.

In light of EU countries’ responses, the Presidency circulated a new directive compromise text dated 17 March, which will be at the top of the agenda of a new round of technical negotiations on 27 March.

EU Council reopens discussion on platform workers’ status

The Swedish presidency of the EU Council of ministers is circling back to a fundamental aspect of the Platform Workers’ Directive after the previous presidency fell short of securing a majority.

Regulatory discretion

In the Council’s text, the reclassification into full-time employment would be triggered if a minimum of three out of seven criteria, which point to a subordination link between a platform and a worker, were to be met.

In previous iterations of the text, a general derogation had been added, where competent national authorities could “enjoy a discretion” not to apply the presumption if it was clear it would be successfully rebutted in legal or administrative proceedings.

In the Swedish presidency’s proposal, however, the scope of the derogation is clarified – and ultimately narrowed. The new text reads that “it is a possibility, not an obligation” that competent national authorities are given this discretion when the EU countries transpose the Directive into their national legal framework.

It further specifies that the discretion on the derogation can only be applied if two conditions are met: competent authorities act on their own initiative, and it is manifest that the contractual relationship under scrutiny is not an employment relationship as defined by national law or collective agreements.

Narrowing the application of the clause, thus the extent to which a member state could use the derogation seems to be a nudge towards the pro-reclassification camp of the likes of Spain and the Netherlands, who had expressed discontent at the derogation clause when the Czechs first introduced it.

These member states complained in the past that the original “enjoy a discretion” wording would create a scope so wide the presumption could effectively be circumvented.

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Legal compliance

Another issue of contention among member states focused on instances where a platform fulfils one of the presumption criteria out of sheer compliance with EU or national law.

In technical negotiations in February, the Swedes had asked member states whether this clause was even ‘necessary’, according to a working paper EURACTIV had seen at the time.

The new compromise text now clarifies the scope, specifying that the criteria would be deemed met if a platform “exerts control and direction over the performance of work”.

Control and direction, in this context, are determined as “fulfilling [at least three criteria], either by virtue of its applicable terms and conditions or in practice”.

On the other hand, the platform cannot be held accountable if it meets a criterion because of compliance with Union law, national law or collective agreements.

Further, the text’s preamble clarifies that measures enshrined in national law or social agreements about safeguarding workers’ health and safety will not be deemed valid to meet presumption criteria.

Criteria include determining the remuneration, requirements such as wearing a uniform, overseeing performance, preventing workers from organising their own working schedule, and restricting the possibility of working for someone else.

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Other considerations

Some member states had raised concerns that the definition of a worker differed between different fields of national law – such that a worker’s reclassification under the new directive might have different implications depending on the regulatory links between the fields of applicable law.

The new text acknowledges this tension and seeks to bring clarifications by stating that member states shall ensure any reclassified worker enjoys the same rights “as any other worker in a comparable situation in that member state”.

Finally, after much back-and-forth over the past few months, the Swedes kept a derogation clause that excluded the legal presumption from applying to tax, criminal and social security proceedings.

EU governments have been given discretion to apply the presumption in light of national law.

Other chapters of the directive, especially on algorithmic management, have not been amended. They were deemed broadly agreed upon already in December negotiations.

EU Commissioner: Council should revert to platform workers’ directive original text

Ministers failed to reach a deal last week over the platform workers’ directive, as concerns over the triggering of the legal presumption of employment and its derogations remain, Commissioner Nicolas Schmit told EURACTIV in an interview.