"EU Council makes new attempt at platform workers directive", 20. March 2023

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. [...]

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. [...]