European Parliament and Council are reaching a consensus.

Once the European Parliament and the Employment, Social Policy, Health and Consumer Affairs Council (EPSCO) had defined their positions, the trialogue negotiations began on 11 July. At the centre of the controversy is the application of the legal presumption of employment to determine employment status. After little or no progress was made in the first rounds of negotiations, the European Parliament and the Council have now submitted new proposals.

Draft directive on platform work

The proposed directive for platform workers 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.

Positions of the Council and the European Parliament

While there is broad agreement on issues of transparency in the use of algorithms and the protection of personal data, the determination of employment status on the basis of the legal presumption of employment is the subject of controversial debate. Compared to the European Commission's draft directive, the Council has raised the hurdle for triggering the statutory presumption of employment from two out of five criteria to three out of seven criteria. The adoption of the position was accompanied by statements from France, Lithuania and the joint statement from Belgium, Luxembourg, Spain, Malta, the Netherlands, Portugal and Romania. The statements illustrate the different positions on the number of criteria on which the statutory presumption of employment should be based, as well as on their exclusion if a criterion is prescribed by law or collective agreement.

The European Parliament, on the contrary, does not apply any EU-wide binding criteria, but lists eight non-mandatory criteria in the recitals.

Both sides submit new proposals

The Spanish Council Presidency has proposed the creation of a new provision regulating the discretionary powers of the competent national authorities. This concerns the assessment of whether the employment status is incorrectly classified and the obligation to initiate a status determination procedure if incorrect classification is suspected. This provision would render any drafting by the Council's mandate obsolete, which has also been heavily criticised within the Council: This states that it is at the discretion of the authorities not to apply the presumption in certain circumstances. In addition, trade unions or representatives of platform employees should be able to initiate a presumption procedure in accordance with the parliamentarians' request.

The European Parliament is also on the move. The European Parliament's rapporteur Elisabetta Gualmini (S&D) has weakened the European Parliament's position in a working paper. According to the European Parliament's position, the eight non-binding criteria are to become binding. However, the wording and scope are broader than in the Council's position.

Tough negotiations expected

However, there are still a few hurdles to overcome before an agreement can be reached. Nevertheless, all parties involved emphasise that the aim is still to have the directive adopted by the Commission and the European Parliament before the end of this legislative period. This needs to be done by the end of February 2024.