Platform Working - The Trialogue Begins
The EC and the socialist ministers are positioning themselves
VS – 07/2023
The
trialogue was able to start after the Employment, Social Policy, Health and
Consumer Affairs Council (EPSCO) agreed on a general
approach to the proposed
directive about improving the working conditions of platform workers on 12
June. The Council, the European Parliament and the EC held an initial
introductory meeting on 11 July with regard to this. During the run-up,
Commissioner Nicolas Schmit campaigned intensively for the Commission's
proposal to be retained as far as possible. He is supported by the social
democratic ministers (PES) from various member states.
Difficult starting position
Approval within the Council is primarily
understood to be a message from the member states to press ahead with
negotiations and to adopt a directive to improve the working conditions of
platform workers before the end of this legislative period. The regulations
about determining the employment status remain controversial after the vote.
The adoption of the mandate for the trialogue negotiations was accompanied by
statements from France, Lithuania and the joint
statement from Belgium, Luxembourg, Malta, the Netherlands, Portugal,
Romania and Spain. In each case, amendments are named for final approval.
There have also been major differences
between the political groups in the European Parliament and the status
determination procedure was at the centre of discussion. After long
negotiations, a position on the proposed directive was reached on 2 February 2023 by 376 votes to 212
with 15 abstentions.
In the run-up to the last council-level
negotiations, Commissioner Schmit spoke out against any weakening or
circumvention of applying the statutory presumption of employment for
determining the status. Commissioner Schmit had also criticised the discretion
given to member states by the council not to apply the statutory presumption of
employment if it was obvious that it would be rebutted.
Implementing the legal presumption of employment will become difficult
The council's deletion of all references in
the proposed Directive to supporting the measures that member states must take
to ensure implementation is problematic from the EC's point of view. In
contrast, the European Parliament expanded the wording of the proposed
directive in this respect.
The criteria used for the statutory presumption of employment are an area of conflict
Positions regarding the criteria for the
statutory presumption of employment differ widely. The EC's proposal for a
directive provides for five criteria. According to this, two of the five
criteria must be fulfilled for a dependent employment relationship to be
established. On the other hand the European Parliament's position does not
include EU-wide binding criteria. Only eight non-conclusive aspects are listed
which, in addition to ECJ case law, national regulations and legislation, must
be taken into consideration when determining an employment status. The council,
on the other hand, proposes to increase the number of criteria to seven and the
threshold for the legal presumption of employment to three.
What happens next
At the press conference held by the
informal council on 14 July in Madrid, Spanish Deputy Prime Minister Díaz
expressed optimism that the trialogue negotiations would be concluded during
the Spanish Council Presidency. She found support from Commissioner Schmit, who
referred to the Minimum Wage Directive. There, too, the positions were far
apart at the beginning of the trialogue.