Sweden submits compromise proposal

VS – 05/2023

On 9 December 2021, the European Commission presented a draft directive to improve working conditions in platform work. The background is that platform workers are often classified as self-employed and therefore have no or limited access to social security schemes in most European legal systems. With the help of the directive, uniform criteria are to be made available for a better demarcation of the platforms as possible employers.

While the European Parliament adopted its position on 2 February, the Czech Council Presidency failed to find a compromise in the European Council. The Swedish Council Presidency has now presented a new compromise proposal.

Legal presumption of employment

The regulations on the presumption of employee status are in particular a matter of dispute between the Member States; in the draft directive, the European Commission names criteria on the basis of which the employee status can be checked. If two of the criteria are met, employment exists and the "presumption of employment" must be backed up by an administrative procedure, including the option of legal review. The Swedish Council Presidency is trying to find a compromise between the supporters of the proposal for a directive and the countries from whose point of view the options for self-employment are too limited.

Sweden has further specified the application of the criteria for the presumption of employee status in the compromise proposal. The current compromise therefore clarifies that the granting of discretionary powers must only be an option and not an obligation. The scope of this derogation is also narrowed and made subject to two conditions: The competent authorities act on their own initiative and it is obvious to them that it is not an employment relationship in the sense of national legislation or collective agreements.

On the contrary, the Czech Republic had proposed a general exception to the application of the presumption last year: Accordingly, the competent national authorities should be able to waive the presumption "at their own discretion" if it cannot be proven with legal certainty. The Netherlands, Belgium and Spain were critical of this as they saw too much leeway in this.

Equal rights for all workers

The Swedish Council Presidency has also specified in detail so that every newly classified platform employee can claim the general employees' rights to which he or she is entitled. It is also important to the Swedish Council Presidency that the European Commission takes account of the problem of labour leasing in its proposal for a directive and that there is a clear obligation to include agencies in the scope of the directive.

What happens next

The Swedish Council Presidency wants the European Council to adopt a common position of the Member States in June. If this does not succeed, the trialogue may not be concluded in this legislative period.