Status determination remains controversial

VS – 06/2023

The Employment, Social Policy, Health and Consumer Affairs Council (EPSCO) meeting on 12 June succeeded in agreeing on the Council's general approach to a proposed directive on improving working conditions in platform work. The European Parliament has already agreed to a position on the proposed directive on 2 February 2023, so that the negotiations of the Council and the European Parliament can begin.

Status determination and transparency in algorithmic management

The proposed directive for platform worker has two main objectives. First, to determine the actual employment status of people working for digital work platforms in the EU. This is intended to strengthen access to social and labour protection for platform workers and to give both platform operators and workers more legal certainty. Secondly, the directive aims to increase transparency in the use of algorithms by digital work platforms and ensure human oversight of key decisions affecting workers and the protection of their personal data.

Status determination - two camps face off

Until recently, the application of the statutory presumption of employment to determine status was at the centre of controversy. Some Member States, including France, had called for exceptions to the application of the statutory presumption of employment status, while others argued for the retention of the Commission's proposal.

In order to gain France's approval, the Swedish Council Presidency named exceptions to the application of the statutory presumption of employment status in the last compromise proposal. Thus, the criteria underlying the presumption of employment status are not to be used if they are met as a result of compliance with legal requirements or agreements of the social partners. The Council Presidency has accommodated the advocates of retaining the regulations of the Commission proposal by assuring that more far-reaching national regulations may be retained. The text also clarifies that the conditions listed in the criteria are met in the actual employment relationship.

Fragile compromise

The approval in the Council is to be understood as the willingness of the Member States to move forward with the negotiations on the Directive and to start discussions with the European Parliament, although the rules for determining the employment status of platform workers remain controversial. The adoption of the mandate for the trialogue negotiations was accompanied by the statements of France, Lithuania and the joint statement of Belgium, Luxembourg, Spain, Malta, the Netherlands, Portugal and Romania. In each case, amendments are named for final approval. The German government has not yet been able to agree on a position and has abstained, like Spain, Greece, Latvia and Estonia.

What happens next?

The trialogue negotiations will begin under the Spanish Council Presidency. All parties involved emphasise that the goal is still to adopt the directive during this legislative period of the Commission and the European Parliament.