The Directive proposal is
part of a comprehensive Package of measures on platform employment that the European Commission presented on 9 December 2021 (see also News December 2021).
For this purpose, the European Commission had initiated a feedback procedure,
in which DSV participated by passing an opinion on 10 February 2022.
Determination of employment status - new approach of the European Commission
Platform work poses a variety of challenges for
social security systems. This applies, in particular, to the determination of
the actual employment status. Thus, platform workers who are in a de facto
dependent employment relationship but are classified as self-employed face the
risk of poor working conditions and missing or limited access to adequate
social and labour protection. This is accompanied by the risks of unfair
competition, undeclared work, fragmented and unpredictable incomes and working
hours, a lack of opportunities for qualification, and a lack of measures for
health and safety at work.
Accordingly, the proposed directive focuses on
the issue of employment status determination. Accordingly, the actual
employment relationship and not the contractual agreement is to be decisive for
the determination of employment status. The European Commission is breaking new
ground at the European level by proposing that this should be done on the basis
of a legal presumption. In doing so, the assessment is to be carried out on the
basis of five criteria set out in the proposed directive.
The problem with a limited number of fixed
criteria is that corresponding adjustments could be made to contracts between
platform workers and digital labour platforms to avoid reporting the employee
status. This is especially true when platform workers have little influence on
drafting of the contract. The consequence of the legal presumption would be
that the employee status would be based on the formal fulfilment of the
proposed criteria and not on the actual employment relationship.
The proposal that digital labour platforms
should be able to refute the presumption in judicial or administrative
proceedings is also far-reaching. The burden of proof should lie with them in
this regard. Also, the proceedings should not have a suspensive effect on the
application of the legal presumption.
Transparency in the use of algorithms
The proposed directive also regulates the use
of algorithms by digital working platforms. Key aspects here are increased
transparency in their application and the right to challenge automated
decisions. These rights apply to all platform employees, regardless of their
In addition, digital labour platforms that are
employers are to be obliged to report the work performed by platform workers
and to communicate "relevant data" to the competent labour and social
protection authorities of the Member State.
Specified reporting requirements
The proposed directive also clarifies the
existing obligations to notify the national authorities about the work. Thus,
EU-wide uniform information to be notified will be listed. It is also intended
to give labour and social protection authorities the right to request
additional clarifications and details about the data provided.