EU policymakers brace for clash in thorny debate over platform workers’ status

EU institutions are preparing for confrontation over the functioning of the legal presumption of employment, the most sensitive aspect of the Platform Workers Directive, in a trilogue next Thursday (9 November).

The directive is a legislative proposal to define the status of those working for gig economy platforms like Uber and Deliveroo. The file entered the last phase of the legislative process – so-called ‘trilogues’, between the EU Council, Parliament, and Commission – back in July.

After months of stalemate, with little to no advances, negotiations are now moving to the details of the legal presumption – a novel mechanism that, if triggered, could enable the reclassification of platform workers from self-employed to employee.

Widely different views

The legal status of platform workers is by far the most sensitive chapter of the platform workers directive – and the EU co-legislators have adopted widely different views.

The initial Commission proposal stipulated that the presumption could be triggered if two out of five criteria which hint to subordination were met – in which case a self-employed platform worker could be reclassified unless the digital platform rebuts the reclassification and brings evidence that the worker is ‘genuinely self-employed’.

The Council raised the bar to trigger the presumption, requiring three out of seven criteria to be met. It added specific caveats to limit the scope of the presumption where it would be “manifest” that it would be rebutted. It also looked to exclude the presumption from social security, tax and criminal proceedings.

The Parliament diverged widely from the Council’s stance, however, removing criteria altogether. Any hint of subordination to platforms could have the presumption be triggered – a broad-sweeping scope which has not been to either the Commission’s or the Council’s taste.

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“Elements indicating control”

In a working paper shared ahead of a trilogue in early October, seen by Euractiv, Gualmini sought to tame the Parliament’s position. Moving from the no-criteria approach, she proposed that the legal presumption be triggered if “there is any element indicating control and direction” from the platform to its workers, the paper reads.

The document lists eight criteria that could signal subordination – including remuneration, rules applying to workers’ appearance, performance tracking, restrictions over workers’ access to social protection, accident insurance, and similar.

Such criteria resemble that of the Council’s and the Commission’s, though the wording is much broader, and the scope of each criterion significantly wider.

A document by the Council of the EU, dated 20 October and circulated to ambassadors ahead of the next trilogue, seeks to respond to the Parliament’s “important step forward”.

“Given the limited time to close the negotiations”, reads the Council note, seen by Euractiv, “possible areas of flexibility” were discussed at the technical level ahead of the political discussion in an effort to find effective middle grounds before the end of the year.

Commission strives to revert to initial text in platform workers negotiations

As inter-institutional negotiations kick off on the Platform Workers Directive, EURACTIV has learnt that the European Commission will endeavour to get the final text closer to its initial proposal, expecting most of the pushback to come from EU countries.

Initiation and application of presumption proceedings

In its note, the Spanish presidency of the EU Council stressed that no distinction is made in its mandate or the MEPs’ text between initiating proceedings to assess whether the legal presumption could be triggered and applying that rebuttable presumption.

It suggests creating a new provision that “would set out a discretion of competent national authorities, when they assess whether there might be a wrong classification on the one hand side, but there would be on the other hand the obligation to launch a proceeding, if they come to the conclusion that there might be a wrong classification”.

In effect, such a provision would make obsolete another clause from the Council’s mandate, which its opponents had highly decried, that authorities may have the discretion not to apply the presumption under specific circumstances.

The presidency also proposed taking a step in the direction of the Parliamentarians by agreeing that trade unions, or persons representing platform workers, may also have the power to launch presumption proceedings.

Finally, it is in favour of the EU Parliament’s wording that “the application of the legal presumption shall not lead to an automatic reclassification of all persons performing platform work as platform workers.”

Presumption rebuttal

The Parliament’s working document suggests that should a presumption not be rebutted by any parties, then workers “shall be” reclassified at once. The same goes if a platform fails to make a convincing rebuttal case.

The Spanish presidency refutes the Parliament’s take, deemed “too far-reaching”, but acknowledges that its mandate is silent on this matter. It asks the other EU countries for their views “on the possibility to state clearly that the existence of an employment relationship is to be established by the relevant authority or court if no party rebuts the legal presumption”.

At the same time, the presidency pushes back against the MEPs’ “substantive elements” that could influence the decision of a court or competent authorities on the existence of an employment relationship. It seeks to clarify that this is only down to national applicable law, collective agreements or practice in force in specific member states.

Finally, the document rejects the Parliament’s proposal that a deadline be set after which a platform’s rebuttal of the presumption is made impossible – a move deemed “not acceptable to delegations”.

Bogus or genuine? The EU's plan for platform workers

In this video, we take a closer look at the European Commission’s draft directive on platform work, which aims to ensure platform workers have the contractual relationship that best encapsulates the work they actually do for platforms.

The directive also looks …

[Edited by Luca Bertuzzi/Nathalie Weatherald]

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