Belgium gets approval without the votes of France and Germany.

On 11 March, after several failed attempts, the "Employment, Social Policy, Health and Consumer Affairs Council" (EPSCO) of Ministers confirmed the provisional agreement reached in the trialogue on the proposed directive to improve working conditions in platform work. This means that the dossier can be finalised before the end of this legislative period. The draft law is intended to help ensure correct categorisation of the employment status of platform workers. The basis for this is the actual employment relationship.  In addition, the directive contains EU regulations on algorithmic management and the use of artificial intelligence (AI) in the workplace for the first time.

Dispute over status determination

Since the presentation of the Commission's draft, the discussion has centred on how to determine the employment status of platform workers. The focus was particularly on the criteria used to check the actual employment status for the rebuttable presumption. The Commission draft provided for five criteria. The presumption would then be triggered if two of the five criteria were met. The Council raised the threshold to three out of seven criteria, while the Parliament had spoken out against EU-wide binding criteria. As a result, it was not possible to find a compromise that was acceptable to both sides.

Creative solution from the Belgian Council Presidency 

A new approach was therefore chosen in the provisional agreement reached between the negotiators of the European Parliament and of the Council on 8 February. Harmonised conditions for triggering the rebuttable presumption of employment have been waived. Instead, Member States were obliged to establish an effective mode of action for the rebuttable presumption of employment, without going into the details of its application. The term "facts" has been newly introduced. The determination of employment status should be based on facts that indicate control and management. The basis for this is the national legislation applicable in the Member States, taking into account the case law of the European Court of Justice (ECJ).

Procedural simplifications and burden of proof

The Member States are obliged to effectively simplify procedures for platform workers compared to the status quo. This applies in particular to the triggering of a status determination by platform workers or their representatives and the associated obligations to provide evidence. In the event that the legal presumption is triggered, the digital labour platforms can challenge the classification. However, the burden of proof that no employment relationship exists lies with the digital labour platforms.

The provision in the original Commission draft, according to which the status classification applies until the final decision in the event of a legal caveat, is no longer included in the draft law.

Pioneering regulations on the use of artificial intelligence

The draft law establishes binding rules for algorithmic management and the use of artificial intelligence in the workplace for the first time. This incorporates the AI Act into labour law and takes account of the employment relationship, characterised by digital processes, between digital labour platforms and platform workers.

For example, digital labour platforms are prohibited from making decisions such as dismissals or blocking an account without human supervision. In addition, digital labour platforms are required to assess the impact of decisions based on automated monitoring and decision-making systems on working conditions, health and safety as well as fundamental rights.

The new regulations also introduce transparency rules for digital labour platforms. Accordingly, information on how the algorithms work and how their behaviour affects the decisions made by the automated systems must be made available to the platform workers and their representatives.

What's next?

The draft law will be submitted to the plenary meeting of the European Parliament for approval in April. The Council of Ministers will then formally adopt the law.