Draft EU Directive with control criteria to determine whether platforms are an “employer”
Proposal for an EU Directive seeking to ensure that people working through digital labour platforms are granted the legal employment status that corresponds to their actual work arrangement
Further to the Commission Work Programme 2021 (published in October 2020), announcing a legislative initiative on improving the working conditions of platform workers by the end of 2021, the EU Commission has now (9 December 2021) proposed a set of measures to improve the working conditions in platform work and to support the sustainable growth of digital labour platforms in the EU, including a proposal for an EU Directive.
Today, over 28 million people in the EU work through digital labour platforms. In 2025, their number is expected to have reached 43 million. In her political guidelines (2019-2024), EU President von der Leyen had stressed that ‘digital transformation brings fast change that affects our labour markets’. She undertook the commitment to ‘look at ways to improve the labour conditions of platform workers’.
On 28 October 2020, the EU Commission had also proposed another EU Directive to ensure that workers in the EU are protected by adequate minimum wages.
The aforementioned initiatives support the implementation of principles contained in the European Pillar of Social Rights (2017), the EU’s compass to achieve better working and living conditions in Europe.
As part of the now (9 December 2021) proposed package, the EU Directive seeks to ensure that people working through digital labour platforms are granted the legal employment status that corresponds to their actual work arrangements. The EU Directive provides a list of control criteria to determine whether the platform is an “employer”. If the platform meets at least two of those criteria, it is legally presumed to be an employer and the people working through them would enjoy the labour and social rights that come with the status of “worker” (this means the right to a minimum wage, collective bargaining, working time and health protection, the right to paid leave or improved access to protection against work accidents, unemployment and sickness benefits, as well as contributory old-age pensions). Platforms will have the right to contest or “rebut” this classification, with the burden of proving that there is no employment relationship resting on them. The criteria are as follows :
(1) effectively determining, or setting upper limits for the level of remuneration ;
(2) requiring the person performing platform work to respect specific binding rules with regard to appearance, conduct towards the recipient of the service or performance of the work ;
(3) supervising the performance of work or verifying the quality of the results of the work including by electronic means ;
(4) effectively restricting the freedom, including through sanctions, to organise one’s work, in particular the discretion to choose one’s working hours or periods of absence, to accept or to refuse tasks or to use subcontractors or substitutes ;
(5) effectively restricting the possibility to build a client base or to perform work for any third party.
The EU Directive includes measures to correctly determine the employment status of people working through digital labour platforms and new rights for both workers and self-employed people regarding algorithmic management (transparency on and use of automated monitoring and decision-making systems, human monitoring of automated systems and human review of significant decisions).
According to the EU Directive, Member States will have the obligation to bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 2 years after its entry into force.
Application of EU competition law to collective agreements of solo self-employed people
As another part of the package proposed on 9 December 2021, the EU Commission is putting forward clarification on the application of EU competition law to collective agreements of solo self-employed people seeking to improve their working conditions. This includes those working through digital labour platforms.
Implementation of Directive on transparent and predictable working conditions by 1 August 2022
In parallel, Member States are currently taking initiatives to implement Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 2019 on transparent and predictable working conditions in the European Union. This Directive was also a direct follow-up to the proclamation of the European Pillar of Social Rights in 2017.
The Directive will set new rights for all workers, particularly addressing insufficient protection for workers in more precarious jobs, while limiting burdens on employers and maintaining labour market adaptability.
EU Member States have until 1 August 2022 to transpose the Directive into their national legislation.
As for other Directives in the field of labour law, the Commission set up an Expert Group composed of national experts in order to provide Member States with technical assistance and with a forum for discussing and facilitating the transposition of the Directive. In June 2021, The Expert Group published their report.
For extra background : see our newsflash of 2 September 2021.