The EC and the socialist ministers are positioning themselves

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.