EU: Platform Work Directive Set to be Approved

After a political thriller, the proposed Platform Work Directive has finally taken its final form and is now set to be formally approved at the end of April, leading up to a last major achievement in the EU social policy of the Commission Von der Leyen before the upcoming EU elections.

The proposal for the Platform Work Directive was introduced on 9 December 2021 and has since stirred a lot of controversy and discussion. In short, the proposal featured, on the one hand, a harmonised rebuttable legal presumption of an employment relationship for digital platform workers and, on the other, a chapter on algorithmic management, which would cause the apps to increase transparency and human review of the algorithms that are used to direct and control the platform workers. For a full review of the proposal, read our earlier article here.

During the long legislative process, the case law of different EU member states continued to debate the employment status of platform workers. In most cases, this led to qualification as employees or workers. At the same time, Belgium and Portugal already adopted their own specific rebuttable presumptions of an employment relationship for digital platform workers, both heavily inspired by the Commission’s proposal. In Spain, a very strict automatic presumption of employment for digital platform riders was adopted. The EU Parliament, inspired by the Spanish example, was of the opinion that the proposed rebuttable presumption was not sufficient to adequately assist the more vulnerable digital platform workers in determining their employment status and, therefore, also pressed for a solution in the direction of the Spanish rider’s law. However, in the Council, there was more reluctance to strict rules to curb the entrepreneurial freedom of the platforms, especially when France (followed by a contingent of other member states) opposed not only the Parliament’s plans but also the EU Commission’s proposal set of harmonised rebuttable legal presumptions based on 5 EU-wide criteria. As the Spanish presidency (second half of 2023) did not manage to find a majority among the member states, the Belgian presidency (first half of 2024) had great difficulties getting the necessary backing for the Directive.

Eventually, in February, the Belgian presidency managed to reach a majority (with a final turn-around by Greece and Estonia) for a watered-down Directive, wherein the EU member states have the obligation to make their own specific rebuttable presumption of an employment agreement for digital platform agreements without imposing any fixed criteria. In this way, the new Directive gives in to the concerns of certain member states that the competence to lay down the criteria for the determination of employment status is an important part of the national sovereignty of the Member States. The Directive only states that the Member States need to look at facts that indicate control and direction and need to take the case law of the CJEU into account. However, the other parts of the Directive, including the important rules regarding algorithmic management, have remained practically unchanged. The Directive also pushes for more social dialogue that allows workers to gather and discuss their situation and rights. Most interestingly, most of these rules are also applicable to platform workers who are deemed to be self-employed.

The Directive is set to be finally approved by the EU Parliament (and the Council) at the end of April. After the approval, the Member States will have two years to implement the rules. The lack of a harmonised legal presumption is a setback for those who wished for clear EU-wide rules regarding the employment status of platform workers. However, the rules regarding algorithmic management can be used by authorities, workers, and other stakeholders like unions to get more grip on the practices of the platforms.

 

Takeaways:

• The Platform Work Directive is going to be approved in April/May 2024.
• Member States are required to create their own specific rebuttable legal presumption of an employment relationship for digital platform workers. The EU criteria are no longer part of the Directive.
• The rules regarding algorithmic management have been maintained and will, for a large part, also be applicable to self-employed platform workers.
• Member States will have two years to implement the Directive.