Belgium Presidency hopes for 11th-hour deal with watered-down platform work directive

Following failed interinstitutional negotiations over the platform work directive last week, the Belgium Presidency circulated yet another draft text, significantly watering down the file’s flagship chapter on the legal presumption of employment.

The platform work directive, initially proposed by the European Commission in December 2021, looks to give the EU a first go at regulating the gig economy and ensures platform workers benefit from the contractual status that best fits the reality of their relationship with digital platforms.

The file has faced significant pushbacks and negotiation stalemates over the past two years – especially in agreeing on the creation of a legal presumption of employment, a flagship mechanism through which self-employed platform workers could be reclassified as full-time employees if evidence shows there is a clear subordination link between the worker and the platform.

In recent developments, negotiations between the European Commission, the European Parliament and the Spanish Presidency of the Council of the EU – better known as ‘trilogues’ – had struck a deal in mid-December, which was quickly shot down by Member states, first and foremost France, on grounds the text had strayed too far from the Council’s own position, especially on the legal presumption.

Earlier this month, the Belgium Presidency, which took over the file, proposed a revised position closer to member states’ initial take, ultimately making the legal presumption harder to trigger for self-employed platform workers hoping to be reclassified.

This was refused at once by the European Parliament in trilogues last Tuesday (30 January) in a rare show of transpartisan unity.

Is the platform work directive dead?

The EU’s Platform Workers Directive is on life-support and might be split in two after European governments voted down a provisional agreement found in December. “Better no deal than a bad deal,” sources told Euractiv.

No more criteria

Instead, it was agreed the Belgians would work on a new ‘joint exploratory text’, which means “an alternative text of the legal presumption, which would leave more margins for implementation to the member states,” a Presidency note dated 3 February, and seen by Euractiv, reads.

While the algorithmic management in the workplace chapter remains, in the terms agreed in the December provisional agreement, the note, which includes brand new text, in effect waters down the detailed functioning of the legal presumption – confirming information gathered by Euractiv last week.

It does away with criteria altogether, instead adding 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”.

This is a significant move from past versions – and the Commission’s initial proposal –, which included a list of detailed criteria that would indicate whether there exists a subordination link between a platform and a worker.

Therefore, “there are no harmonised conditions for the triggering of the presumption in the text of the Directive,” the note reads – and it is down to member states only to decide how to act.

The revised text does, however, compel all member states to create a rebuttable legal presumption in their national system. The mechanism must make it easier for platform workers to evidence their actual contractual relationship and not make proceedings more burdensome.

A meeting of member states’ technical advisors is due to take place on Monday (5 February) to look into the details of the new draft ahead of a vote by all EU ambassadors on the revised text on Wednesday (7 February).

Should everything go to plan, and member states approve the plan, a trilogue has been pencilled in for Thursday (8 February) and, if a deal is struck then, it will go back to EU ambassadors for a final thumbs-up on Friday (9 February).

 [Edited by Alice Taylor]

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