At last a Directive protecting platform work – Now what?

 

Catherine Jacqueson, Professor of EU law and Alberto Barrio, post-doc on the WorkWel-project, Law Faculty, University of Copenhagen

Photo credit: conceptphoto.info, via Flickr 

Finally, the European Parliament formally adopted the directive protecting platform work on 24 April. It still needs to be formally endorsed by the Council too, but this is more a matter of procedure. Against all odds and at the very last minute, the Directive made it through the legislative rollercoaster. It was the Council which was holding back. It therefore came as a surprise that the Council adopted the compromise agreement on 11 March after having rejected this very same text on previous occasions. Suddenly, the blocking minority had vanished as Greece and Estonia no longer abstained and voted in favour of the compromise agreement. Germany continued its abstention because of internal struggles and France, the main opponent to the proposed Directive, seemed to have softened a bit its hard standpoint.

The approval of the Directive in the Council represents an important step towards greater protection of platform workers’ rights in the field of labour law and social protection. It is also a clear signal, which reinforces the EU social’s agenda following the Gothenburg summit of 2017 and the launch of the European Pillar of Social Rights. The Commission has – again – delivered. However, the compromises made to arrive there also mean that several provisions, particularly those regarding a rebuttable presumption of employment relationship are diminished compared to the European Commission’s proposal. More importantly, very little of the European Parliament’s proposition to further strengthen the protection of platform workers in its common position was introduced in this compromise version.

A watered-down presumption of employee

The proposal is much watered down at the end, especially in respect of its flagship provision creating a presumption of employee for those operating on labour platforms such as Deliveroo, Uber and Bolt. It leaves it to the Member States to decide upon which criteria the presumption should apply and thus fails to establish a level playing field between States, markets, businesses and providers. Some may argue that such ‘loose’ presumption creates more problems than it solves. Member States are also explicitly not required to apply to the presumption in the fields of social security and tax law, which may hinder achieving the expected increase in public authorities revenue of up to EUR 3.98 billion. The Member States could not agree that the directive should require a spillover effect to other legal fields at national level, but each State is free to do so. The sensitive issue of the EU’s competence might be lurking here. But even a watered-down version imposes a clear obligation on the EU States to insert such presumption, which ultimately could be challenged before national courts and end before the ECJ. Furthermore, national discretion is contained by some safeguards imposed by EU law and the case-law of the ECJ. Importantly, the directive carves it out in stone that the presumption should be based on facts indicating control and subordination and not on the supposed agreement of the parties. The Member States can be flexible in interpreting these criteria in line with the digitalization of the labour market. The directive requires States to set up procedural safeguards to enforce the legal presumption of employee. Thus, the directive is more a procedural one than one on substance. Again, the Member States are free to design them as long as they make it ‘effectively easy for the person performing platform to benefit from the presumption’ (recital 32). The fear here is that it could lead to more legal challenges concerning employment status - this time regarding the presumption instead of the status itself. Indeed, the presumption does not lead to automatic reclassification as employees. Only time will show the added value of the presumption and in which country it was most effective.

What is left?

In contrast, the detailed chapter on algorithm management may have real added value. At least on the paper. It is the EU’s first attempt to regulate algorithms within the context of work. Unlike the AI Act which has been formally adopted by the European Parliament, it does not rely on self-regulation but imposes specific obligations and prohibitions on platforms. It is rather ambitious, and interestingly most of its provisions apply also to the self-employed taking thereby a holistic approach. The Commission’s draft was left quite untouched until January where a few changes were inserted. The directive puts flesh on the dry provisions of the GDPR. It builds on the Regulation prohibiting the processing of some personal data and also the use of biometric data to predict future behaviour, which conflicts with fundamental rights such as the likelihood of pregnancy. It goes further than the GDPR, as it obliges platforms to open the black box on how they are designed and work. Likewise, human oversight is not only required where the platforms take a decision but also, for example, when they monitor data.

Furthermore, the directive is an improvement in terms of transparency and accountability of the platforms. Thus, the agreed version requires platforms to report and disclose certain information to relevant authorities including declaring the performance of platform work, as well as the number of persons doing so on a regular basis. The intention is both to get data and monitor the platforms, which could serve to improve enforcement of applicable rules in both internal and cross-border situations. This part has also been left quite untouched from the Commission’s original version with the removal of only a few of the criteria which need to be reported.

All in all, the directive is a clear signal that platform work and algorithm management should not be left unregulated. It is a hard law initiative with quite some softness. Its effectiveness in protecting those operating on the labour platforms will thus depend very much on its implementation and enforcement at national level, which will inevitably vary across the EU and the internal market…