Belgian presidency moves toward France in platform work rulebook rewrite

The Belgian presidency of the EU Council is edging closer to France’s demands in a new iteration of the Platform Workers Directive obtained by Euractiv, by bringing back critical provisions that are close to Paris’s heart.

The Platform Workers Directive is a legislative proposal to define the conditions of the workers of gig economy platforms like Just Eat and Bolt. The text is at the last stage of the legislative process, so-called ‘trilogues’ between the EU Council, Commission, and Parliament.

In December, the Spanish Council presidency reached a provisional agreement with MEPs on the file. However, the political deal failed to win a qualified majority inside the Council of Ministers as several member states found the text had gone too far from their originally agreed positions.

The Belgian presidency, in a document dated 20 January, asked for a revised mandate to negotiate with parliamentarians. This mandate should land on the table of EU ambassadors on Wednesday (24 January) – in an attempt to get the directive across the line before EU elections in June.

The new text shows Belgium’s efforts to strike a balance between the Parliament’s more prescriptive and worker-protective approach and the more flexible and business-oriented Council position.

“[The Presidency] respected the [Council’s] general approach as the baseline behind which it did not step back. It strived as well to keep many elements of the provisional agreement in order to make an agreement with the European Parliament possible,” the cover note to the new draft text reads.

It notes that “some concessions are required in order to ensure a deal with the European Parliament”.

If the text is approved on Wednesday, a political trilogue will take place on 30 January.

Member states deal heavy blow to platform work deal

Member states’ ambassadors failed to find a majority over a platform work directive deal struck last week, dealing a heavy blow to the Spanish Presidency of the Council of the EU and raising concerns the file may not get through before the end of the mandate.

‘French derogation’

In a shy move meant to allay France’s pressing concerns that the December provisional agreement, which is being used as the basis for future negotiations, falls significantly short of expectations, the Belgian presidency brought back a provision that the French have always wanted, known as the ‘French derogation’, in the text’s recitals.

Recitals form the law’s preamble and clarify the meaning of the legal text but do not have the legal value of articles.

This provision touches on the legal presumption of employment, the directive’s flagship mechanism through which self-employed platform workers could be automatically reclassified as full-time employees based on their working relationship with digital platforms.

As it stands, a certain number of criteria, which hint to a subordinate relationship between a platform and a worker, would have to be met for the legal presumption to be triggered.

But this ‘French derogation’ effectively brings in a caveat: if a digital platform is constrained by national law or trade union deals to act a certain way towards workers, and this action mechanically meets one of the criteria, then that’s not enough for that criterion to be deemed fulfilled.

In other words, a criterion can only be fullfiled – and possibly trigger the presumption – if the action that hints to subordination arises in the course of worker-platform interactions, or if it is imposed unilaterally in the Terms & Conditions workers are obliged to agree before signing on to a platform.

France leads charge to rewrite platform workers' rulebook

Last month, a coalition of EU countries blocked the provisional agreement on the Platform Workers Directive. But while the Belgian EU Council presidency wants to use the political deal as the starting point for future discussion, Paris wants a more comprehensive file reshaping.

Indicators and rebuttal

The number of criteria that are necessary to trigger the presumption has also been a source of disagreements.

The Commission’s initial proposal stipulated that the presumption could be triggered if two out of five criteria which hint at subordination were met. The Council increased the threshold to three criteria out of seven, while the Parliament’s original stance was to remove the criteria to focus on the actual working conditions.

In the latest version of the text, Belgians are sticking to their guns on the principle that two out of five criteria is the right threshold, “given the big symbolic importance of this ratio [for both the Commission and the Parliament]”.

It nonetheless narrowed the scope of the indicators’ wording, similar to a previous iteration of the text circulated last week “in a way that the effect is still similar to the general approach”.

One of those indicators, which looks at the supervision of workers’ performance by platforms as a proxy of subordination, has notably reduced the scope from a broad understanding of supervision to “a close supervision by electronical means”.

The indicator which focuses on remuneration remains untouched.

The three others focus specifically on whether a digital labour platform “restricts the freedom” to organise one’s work by accepting or refusing tasks, imposing working hours, and affecting workers’ discretion to use subcontractors if they wish – ultimately reducing their scope compared to December wording.

As for the rebuttal, the December agreement had added a clause stating that the absence of a presumption rebuttal would lead to the worker’s reclassification – which has been deleted.

Belgian presidency gives platform workers rulebook new try

The Belgian Presidency of the Council of the EU has circulated a new draft text of the platform work directive, which should be the basis for technical negotiations among member states on Tuesday (16 January), amid persistent divisions about the directive’s scope.

National authorities

More leeway is given to national authorities after a strong push from a majority of member states that their competencies be left untouched “to address better and more explicitly the fact that national authorities are of very different nature and are vested with different powers for launching [presumption] proceedings”.

The directive as such thus cannot require national authorities’ purviews to change as a result of its implementation.

Wording that relevant labour authorities should trigger inspections at a platform-wide level if one worker is reclassified has been kept in spite of delegations’ pushbacks, “given that this point is very important to the European Parliament”.

Penalties

The size and scope of penalties for not enforcing the directive have been significantly reduced. The text now speaks of mere “penalties” rather than “significant penalties”, and any reference to the penalty amounting to a percentage of the platform’s total annual turnover has been deleted.

[Edited by Luca Bertuzzi/Nathalie Weatherald]

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