Council of theEuropean Union
Brussels, 7 June 2023
(OR. en)
10107/23
Interinstitutional File:
2021/0414(COD)
EMPL 294
SOC 422
CODEC 1011
NOTE
From:
To:

Permanent Representatives Committee (Part 1)
Council

Subject:

Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF
THE COUNCIL on improving working conditions in platform work
- General approachI.

INTRODUCTION
On 9 December 2021, the Commission submitted a proposal for a Directive on improving theworking conditions in platform work1. The proposal seeks to:1)

improve the working conditions of platform workers by facilitating the correct
determination of their employment status through a rebuttable legal presumption(Chapter II),

2)

improve the protection of the personal data of persons performing platform work by
improving transparency, fairness and accountability in the use of automated monitoringor decision-making systems (Chapter III),3)

improve the transparency of platform work (Chapter IV) and put certain remedies andenforcement measures in place (Chapter V).

1

Doc. 14450/21

10107/23

RS/mk
LIFE.4

1ENUnder the relevant legal bases, i.e. Article 153(2)(b) TFEU, in conjunction with point (b) of
Article 153(1), and Article 16(2) TFEU, the Council is to act by qualified majority, in
accordance with the ordinary legislative procedure.
The European Parliament has not yet adopted its position at first reading. The EP plenary has
confirmed on 2 February the decision of the EMPL committee to enter into negotiations basedon the report of Elisabetta Gualmini as adopted by the EMPL Committee on 12 December
20222.
The Economic and Social Committee adopted its opinion in its plenary session on 23 March20223.
The Committee of the Regions adopted its opinion in its plenary session on 30 June 20224.
The European Data Protection Supervisor issued formal comments on 2 February 20225.
II.

STATE OF PLAY UNDER CZECH PRESIDENCYThe Czech Presidency of the Council presented to the Council (ESPCO) on 8 December 2022
a compromise proposal6 to reach a Council general approach. While most of the text wasagreeable to delegations (notably chapters III to V) there remained a strong divergence ofviews, in particular on chapter II dealing with the employment status.
After initial discussion in the Council revealed that this text would not find the required
support, the Presidency continued to work with delegations with a view to finding
compromises. The Presidency came back in the same meeting with amendments to its initial
proposal7. Despite these efforts, this amended text did not find the required qualified majority
among delegations.

2
3
4
5
6
7

A9-0301/2022
11378/22
11328/22
5966/2215338/22 REV1
15836/22

10107/23

RS/mk
LIFE.4

2

EN

III. WORK UNDER SWEDISH PRESIDENCYThe Swedish Presidency brought the file back to the technical level to set strong foundations
for a future compromise. It held three working party meetings on 13 February, 27 March and
24 April 2023, followed by discussions in the Committee of Permanent Representatives (PartI) on 24 May, 31 May and 7 June 2023. The Presidency notably asked delegations to provide
factual input on a couple of questions related to the main issues, which had not been solved
yet8. Starting from where the Czech Presidency had left the file, the Swedish Presidency
produced new compromise texts taking into account the concerns of the delegations.
Although a definitive agreement on the text has not been found in the Committee ofPermanent Representatives, the Presidency’s efforts have attracted increasing support andthere exists a widespread view that the text represents the centre of gravity between thediverging views of delegations.
IV.

THE PRESIDENCY COMPROMISE PROPOSAL
The proposal as amended in the latest Presidency compromise proposal set out in Annex tothis note provides for important and powerful tools for improving the working conditions ofplatform workers and the protection of persons performing platform work regarding theprocessing of their personal data through the use of automated monitoring or decision-making
systems.
Chapter I: Scope and purpose
The first chapter sets the general framework for the directive. It defines subject matter andscope and contains the definitions as well as a cross-cutting provision on intermediaries.

8

Document 5273/23

10107/23

RS/mk
LIFE.4

3ENFollowing the path chosen under the previous French and Czech Presidencies, the text
distinguishes between provisions related to the improvement of working conditions ofplatform workers (based on Articles 153(1)(b), which provides a basis to adopt measures in
the field of working conditions, and 153(2)(b) TFEU) and those related to the improvement of
the protection of personal data of both workers and self-employed, i.e. persons performing
platform work (based on Article 16 TFEU).
The directive creates obligations for digital labour platforms, which provide their services
through the use of automated monitoring or decision-making systems. This allows to exclude
from the scope those enterprises, mostly SMEs, which use only very basic electronic means
such as a website to conduct their business.
In order to address the fact, reported by delegations, that some digital labour platforms recruit
persons performing platform work through intermediaries, where one reason could be to avoid
complying with national legislation, Article 2a was added. Given the different forms of
subcontracting and intermediation combined with the agility of digital labour platforms in
adapting to a fast-changing regulatory environment, this provision obliges Member States toensure the same level of protection also in the case of intermediation, while leaving it to theMember States to choose the appropriate measures to do so. These may include theestablishment of a joint responsibility, if a Member State considers that to be appropriate.
Chapter II: Employment Status
The politically most sensitive part of the Proposal is Chapter II, which deals with the correct
determination of the employment status of persons performing platform work. The Swedish
Presidency has continued the good work of the Czech Presidency on this Chapter.

10107/23

RS/mk
LIFE.4

4

EN

Member States are obliged to set up appropriate procedures to ascertain the employment
status of persons performing platform work. Once the employment status is ascertained,
platform workers shall enjoy the related rights derived from that employment relationship.
This provision takes into account that in some Member States different definitions of an
employment relationship exist, and that the rights workers enjoy may vary between these
employment relationships.
One of the appropriate procedures to ascertain the existence of an employment relationship isthe introduction of a legal presumption for the existence of an employment relationship(Article 4).
The legal presumption applies if at least three out of the seven criteria laid down in Article 4paragraph 1 are fulfilled, by virtue of the digital labour platform’s unilaterally determined
terms and conditions or its acting in practice, thus indicating that the digital labour platform
exerts control or direction over the person performing platform work. The latter is therefore
presumed to be in an employment relationship. This also means that if the digital labour
platform merely complies with a legal obligation, including an obligation stemming from acollective agreement, this is not understood as fulfilling one or more criteria for triggering of
the presumption.
The legal presumption shall apply in all relevant administrative or judicial proceeding, where
the correct determination of the employment status is at stake. However, there is no obligation
to apply the presumption in tax, criminal and social security proceedings, but Member States
are free to decide to apply the legal presumption in these proceedings as a matter of nationallaw. Member States might also grant national authorities a discretion of not applying thepresumption, if these authorities act on their own initiative and if it is manifest that theconcerned person is not a platform worker.

10107/23

RS/mk
LIFE.4

5

ENThe legal presumption can be rebutted by any of the parties in the proceedings. In cases where
the digital labour platform rebuts the presumption, it needs to provide the proof that an
employment relationship does not exist according to national law and practice withconsideration of the case of law of the European Court of Justice.
The introducing of the legal presumption by this directive does not limit the possibility ofMember States to maintain or introduce more favourable provisions than Article 4, forexample a lower threshold for triggering a legal presumption. The legal presumption is aprocedural tool which eases access to the correct determination of the employment status. As
such, it does not interfere with the material decision of national authorities and courts toascertain the existence of an employment relationship as this decision is solely based on thelaw, collective agreements or practice in force in the Member State in question withconsideration to the case law of the European Court of Justice.
Chapter III: Automated monitoring or decision-making systems
The second important building block of the proposal is the protection of personal data of
persons performing platform work, which are subject to the use of automated monitoring or
decision- making systems by the digital labour platform. This part represents the first proposal
for legislation at Union level regulating the use of artificial intelligence at the workplace. As
such, it might serve as precursor for a legislation with a much broader application.
Given the particular sensitivity, the proposal provides, partly, for higher protection than the
General Data Protection Regulation, as it bans the processing of certain types of personal databy means of automated monitoring or decision-making, for example data on the emotional
and psychological state of the person or the collection of data while the person is not working.

10107/23

RS/mk
LIFE.4

6

EN

The proposal equally provides for more transparency on automated monitoring or decisionmaking systems, setting out the information to be provided to persons performing platformwork. Furthermore, human monitoring of automated monitoring or decision-making systems
needs to be ensured. The persons exercising this function enjoy, notably, the power tooverride automated decisions and are protected against adverse treatment for exercising theirfunctions. On request, significant decisions affecting persons performing platform work shallalso be subject to human review and in many cases the worker shall have the right to a written
statement of reasons.
Platform workers representatives, or in absence of such representatives the workers
themselves, shall be informed and consulted on the introduction or substantial changes in theuse of automated monitoring or decision-making systems.
Chapter IV: Transparency on platform work
In order to support competent authorities in enforcing existing rights and obligations inrelation to working conditions, concrete measures enhance the transparency and traceabilityof platform work. This includes the obligation for digital labour platforms which areemployers to declare platform work to the competent authorities of the Member State where itis performed, in accordance with the national rules.
The digital labour platforms will also be obliged to inform competent national authorities andrepresentatives of platform workers about relevant basic information like the number ofpeople working through digital labour platforms, their employment status and their standard
terms and conditions as well as the intermediaries the platform is working with. This will
support competent authorities in enforcing existing rights and obligations and help
representatives to defend the interest of workers.

10107/23

RS/mk
LIFE.4

7ENChapter V: Remedies and enforcement
This chapter contains a right to redress, penalties protection against adverse treatment anddismissal, as well as some provisions which address specific problems of the platform
economy. Examples of these provisions are the obligation for the platforms to provide forcommunication channels between them and the provision ensuring that national courts andauthorities are able to order the digital labour platform to disclose any relevant evidence.
Chapter VI: Final provisions
This directive provides for minimum harmonisation and sets thus minimum standards. In the
final provisions it is specifically highlighted that the directive does not constitute a valid
ground to reduce the general level of protection and in particular does not affect existing
national rules providing for reclassification procedures, which are more favourable toplatform workers than those set out in the directive.
V.

CONCLUSIONThe Council is invited to adopt a general approach on the compromise text as set out in the
Annex of this document and to mandate the Presidency to enter into negotiations on the filewith representatives of the European Parliament.

________________________

10107/23

RS/mk
LIFE.48ENANNEX

Proposal for a
DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
on improving working conditions in platform work

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular Article 153(2), point (b), in conjunction with Article 153 (1), point (b), and Article 16(2) thereof,
Having regard to the proposal from the European Commission,
After transmission of the draft legislative act to the national parliaments,
Having regard to the opinion of the European Economic and Social Committee9,
Having regard to the opinion of the Committee of the Regions10,
Acting in accordance with the ordinary legislative procedure,

910

OJ C , , p.
OJ C , , p. .

10107/23
ANNEX

RS/mk
LIFE.49ENWhereas:(1)

Pursuant to Article 3 of the Treaty on European Union, the objectives of the Union are,amongst others, to promote the well-being of its peoples and to work for the sustainable
development of Europe based on a highly competitive social market economy, aiming at full
employment and social progress.

(2)

Article 31 of the Charter of Fundamental Rights of the European Union (‘the Charter’)provides for the right of every worker to working conditions which respect his or her health,safety and dignity. Article 27 of the Charter protects the workers’ right to information andconsultation within the undertaking. Article 8 of the Charter provides that everyone has theright to the protection of personal data concerning him or her. Article 16 of the Charterrecognises the freedom to conduct a business.

(3)

Principle No 5 of the European Pillar of Social Rights, proclaimed at Gothenburg on 17
November 201711, provides that, regardless of the type and duration of the employment
relationship, workers have the right to fair and equal treatment regarding working
conditions, access to social protection and training; that, in accordance with legislation andcollective agreements, the necessary flexibility for employers to adapt swiftly to changes inthe economic context is to be ensured; that innovative forms of work that ensure quality
working conditions are to be fostered, that entrepreneurship and self-employment are to be
encouraged and that occupational mobility is to be facilitated; and that employment
relationships that lead to precarious working conditions are to be prevented, including byprohibiting abuse of atypical contracts. The Porto Social Summit of May 2021 welcomed
the Action Plan accompanying the Social Pillar12.

11
12Interinstitutional Proclamation on the European Pillar of Social Rights (OJ C 428,
13.12.2017, p. 10).
Communication from the Commission to the European Parliament, the Council, theEuropean Economic and Social Committee and the Committee of the Regions, ‘The
European Pillar of Social Rights Action Plan’, COM(2021) 102 final, 4.3.2021.

10107/23
ANNEX

RS/mk
LIFE.4

10

EN

(4)

Digitalisation is changing the world of work, improving productivity and enhancing
flexibility, while also carrying some risks for employment and working conditions.
Algorithm-based technologies, including automated monitoring or decision-making systems,
have enabled the emergence and growth of digital labour platforms.

(5)

Platform work is performed by individuals through the digital infrastructure of digital labour
platforms that provide a service to their customers. By means of the algorithms, the digitallabour platforms may control, to a lesser or greater extent – depending on their businessmodel – the performance of the work, its remuneration and the relationship between theircustomers and the persons performing the work. Platform work can be performed
exclusively online through electronic tools (‘online platform work’) or in a hybrid way
combining an online communication process with a subsequent activity in the physicalworld (‘on-location platform work’). Many of the existing digital labour platforms areinternational business actors deploying their activities and business models in several
Member States or across borders.

10107/23
ANNEX

RS/mk
LIFE.4

11

EN

(6)

Platform work can provide opportunities for accessing the labour market more easily,
gaining additional income through a secondary activity or enjoying some flexibility in theorganisation of working time. At the same time, platform work is rapidly evolving, resulting
in new business models and forms of employment that sometimes escape the existing
paradigms. Such novelties are exemplified in the field of Union competition law, where theCommission has adopted Guidelines on its application to collective agreements regarding
the working conditions of solo self-employed persons. For these reasons, it is important toaccompany this process with adequate safeguards for persons performing platform work,irrespective of the nature of the contractual relationship, avoiding discrimination andpromoting new opportunities. Notably, platform work can blur the boundaries between
employment relationship and self-employed activity, and the responsibilities of employers
and workers. Misclassification of the employment status has consequences for the persons
affected, as it is likely to restrict access to existing labour rights. It also leads to an unevenplaying field with respect to businesses that classify their workers correctly, and it has
implications for Member States’ industrial relations systems, their tax base and the coverageand sustainability of their social protection systems. While such challenges are broader thanplatform work, they are particularly acute and pressing in the platform economy.

10107/23
ANNEX

RS/mk
LIFE.4

12

EN

(7)

Court cases in several Member States have shown the persistence of misclassification of theemployment status in certain types of platform work, in particular in sectors where digitallabour platforms exert a certain degree of control over the remuneration and performance ofwork. While digital labour platforms frequently classify persons working through them as
self-employed or ‘independent contractors’, many courts have found that the platforms
exercise de facto direction and control over those persons, often integrating them in theirmain business activities and unilaterally determining the level of remuneration. Those courts
have therefore reclassified purportedly self-employed persons as workers employed by theplatforms.

(8)

Automated monitoring or decision-making systems powered by algorithms increasingly
replace functions that managers usually perform in businesses, such as allocating tasks,
giving instructions, evaluating the work performed, providing incentives or imposing
sanctions. Digital labour platforms use such algorithmic systems as a standard way oforganising and managing platform work through their infrastructure. Persons performing
platform work subject to such algorithmic management often lack information on how thealgorithms work, which personal data are being used and how their behaviour affects
decisions taken by automated systems. Workers’ representatives and labour inspectorates do
not have access to this information either. Moreover, persons performing platform workoften do not know the reasons for decisions taken or supported by automated systems andlack the possibility to discuss those decisions with a contact person or to contest them.

(9)

When platforms operate in several Member States or across borders, it is often unclear
where the platform work is performed and by whom. Also, national authorities do not haveeasy access to data on digital labour platforms, including the number of persons performing
platform work, their employment status, and their working conditions. This complicates theenforcement of applicable rules.

10107/23
ANNEX

RS/mk
LIFE.4

13

EN

(10)

A body of legal instruments provides for minimum standards in working conditions andlabour rights across the Union. This includes in particular Directive (EU) 2019/1152,
Directive 2003/88/EC of the European Parliament and of the Council13, Directive
2008/104/EC of the European Parliament and of the Council14, and other specificinstruments on aspects such as health and safety at work, pregnant workers, work-lifebalance, fixed-term work, part-time work, posting of workers, among others.

(11)

Council Recommendation 2019/C 387/0115 recommends Member States to take measures
ensuring formal and effective coverage, adequacy and transparency of social protection
schemes for all workers and self-employed.

(12)

Regulation (EU) 2016/679 of the European Parliament and of the Council16 (‘General Data
Protection Regulation’) ensures the protection of natural persons with regard to theprocessing of personal data, and in particular provides certain rights and obligations as well
as safeguards concerning lawful, fair and transparent processing of personal data, including
with regard to automated individual decision-making.

13
14
15
16

Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003
concerning certain aspects of the organisation of working time (OJ L 299, 18.11.2003, p. 9).
Directive 2008/104/EC of the European Parliament and of the Council of 19 November
2008 on temporary agency work (OJ L 327, 5.12.2008, p. 9).
Council Recommendation of 8 November 2019 on access to social protection for workers
and the self-employed (2019/C 387/01) (OJ C 387, 15.11.2019, p. 1).
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016
on the protection of natural persons with regard to the processing of personal data and on thefree movement of such data, and repealing Directive 95/46/EC (General Data Protection
Regulation) (OJ L 119, 4.5.2016, p. 1).

10107/23
ANNEX

RS/mk
LIFE.414EN

(12a) Regulation (EU) 2019/1150 of the European Parliament and of the Council17 promotes
fairness and transparency for ‘business users’ using online intermediation services provided
by operators of online platforms. [The European Commission has proposed further
legislation laying down harmonised rules for providers and users of artificial intelligencesystems]18.
(12b) Directive 2002/14/EC of the European Parliament and of the Council19 establishes a generalframework setting out minimum requirements for the right to information and consultationof employees in undertakings or establishments within the Union.
(13)

While existing Union legal acts provide for certain general safeguards, challenges inplatform work require some further specific measures. In order to adequately frame thedevelopment of platform work in a sustainable manner, it is necessary for the Union to set
minimum standards to address the challenges arising from platform work. Measuresfacilitating the correct determination of the employment status of persons performing
platform work in the Union should be introduced, and transparency on platform work shouldbe improved, including in cross-border situations. In addition, persons performing platformwork should be provided a number of rights aiming at promoting transparency, fairness andaccountability in algorithmic management. This should be done with a view to improving
legal certainty and aiming at a level playing field between digital labour platforms andoffline providers of services and supporting the sustainable growth of digital labour
platforms in the Union.

17

18
19

Regulation (EU) 2019/1150 of the European Parliament and of the Council of 20 June 2019
on promoting fairness and transparency for business users of online intermediation services(OJ L 186, 11.7.2019, p. 57).
[COM(2021) 206 final, 21.4.2021.]
Directive 2002/14/EU of the European Parliament and of the Council of 11 March 2002
establishing a general framework for informing and consulting employees in the European
Community (OJ L 80, 23.3.2002, p. 29).

10107/23
ANNEX

RS/mk
LIFE.4

15

EN

(14)

The Commission has undertaken a two-stage consultation of the social partners, inaccordance with Article 154 of the Treaty on the Functioning of the European Union(TFEU), on the improvement of working conditions in platform work. There was noagreement among the social partners to enter into negotiations with regard to those matters.
It is, however, important to take action at Union level in this area by adapting the current
legal framework to the emergence of platform work.

(15)

In addition, the Commission held extensive exchanges with relevant stakeholders, including
digital labour platforms, associations of persons performing platform work, experts fromacademia, Member States and international organisations and representatives of civilsociety.

(15a) This Directive aims to improve the working conditions of platform workers and to protect
the personal data of persons performing platform work by regulating the use of algorithmic
management in the context of platform work. Both objectives are being pursued
simultaneously and, whilst mutually reinforcing and inseparably linked, one is not secondary
to the other. As regards Article 153(1)(b) TFEU, this Directive sets out rules aimed at
supporting the correct determination of the employment status of persons performing
platform work and improving transparency on platform work, including in cross-bordersituations. As regards Article 16 TFEU, this Directive establishes a framework to improve
the protection of natural persons performing platform work regarding the processing of theirpersonal data by increasing transparency, fairness and accountability of relevant algorithmic
management procedures in platform work.
(16)

This Directive should apply to persons performing platform work in the Union,
independently of their employment status.

10107/23
ANNEX

RS/mk
LIFE.4

16

EN

(17)

This Directive should establish mandatory rules that apply to all digital labour platforms,
irrespective of their place of establishment and irrespective of the law otherwise applicable,
provided that the platform work organised through that digital labour platform is performedin the Union.

(18)

Digital labour platforms differ from other online platforms in that they use automatedmonitoring or decision-making systems to organise work performed by individuals at therequest, one-off or repeated, of the recipient of a service provided by the platform.
Automated monitoring and decision-making systems collect personal data of persons
performing platform work and take or support decisions that affect work conditions.
Organising work performed by individuals should imply at a minimum a significant role inmatching the demand for the service with the supply of work by an individual who has acontractual relationship with the digital labour platform and who is available to perform a
specific task. This can include other activities such as processing payments. Online
platforms which do not organise the work performed by individuals but merely provide themeans by which service providers can reach the end-user, for instance by advertising offers
or requests for services or aggregating and displaying available service providers in a
specific area, without any further involvement, should not be considered a digital labour
platform. The definition of digital labour platforms should not include providers of a service
whose primary purpose is to exploit or share assets, such as short-term rental ofaccommodation, or to resell goods or services, nor those who organise the activities ofvolunteers. It should be limited to providers of a service for which the organisation of work
performed by the individual, such as transport of persons or goods or cleaning, constitutes anecessary and essential and not merely a minor and purely ancillary component.

10107/23
ANNEX

RS/mk
LIFE.417EN

(18a) In some cases, persons performing platform work do not have a direct contractual
relationship with the digital labour platform, but are in a relationship with an intermediarythrough which they perform platform work through digital labour platform. Such a way toorganize platform work often results in a vast array of different and complex triangular
relationships, as well as in blurred responsibilities between the digital labour platform andthe intermediaries concerning platform work. Persons performing platform work throughintermediaries are exposed to the same risks in terms of misclassification of theiremployment status and automated monitoring or decision-making systems as persons
performing platform work directly for the digital labour platform. Member States should
therefore lay down adequate measures, including by establishing systems of joint
responsibility, if appropriate, in order to ensure that, under this Directive, they enjoy thesame level of protection as persons performing platform work who have a direct contractual
relationship with the digital labour platform.
(19)

To combat false self-employment in platform work and to facilitate the correct
determination of the employment status, Member States should have appropriate proceduresin place to prevent and address misclassification of the employment status of persons
performing platform work. The aim of those procedures should be to ascertain the existenceof an employment relationship as defined by national law, collective agreements or practicewith consideration to the case-law of the Court of Justice, and thereby to ensure that
platform workers enjoy the rights related to that employment relationship deriving fromrelevant Union law, national law and collective agreements. Where self-employment or anintermediate employment status – as defined at national level – is the correct employment
status, rights and obligations pursuant to that status apply.

10107/23
ANNEX

RS/mk
LIFE.4

18

EN

(20)

In its case law, the Court of Justice has established criteria for determining the status of aworker20. The interpretation by the Court of Justice of those criteria should be taken into
account in the implementation of this Directive. The abuse of the status of self-employedpersons, either at national level or in cross-border situations, is a form of falsely declared
work that is frequently associated with undeclared work. False self-employment occurs
when a person is declared to be self-employed while fulfilling the conditions characteristicof an employment relationship. The Court of Justice has ruled21 that the classification of aself-employed person under national law does not prevent that person from being classified
as a worker within the meaning of Union law if their independence is merely notional,
thereby disguising an employment relationship.

(21)

The principle of primacy of facts, meaning that the determination of the existence of an
employment relationship should be guided primarily by the facts relating to the actual
performance of work, including its remuneration, and not by the parties’ description of therelationship, in accordance with the 2006 Employment Relationship Recommendation (No198) of the International Labour Organisation, is particularly relevant in the case of platform
work, where contractual conditions are often unilaterally determined by one party.

20

21

Judgments of the Court of Justice of 3 July 1986, Deborah Lawrie-Blum v Land BadenWürttemberg, C-66/85, ECLI:EU:C:1986:284; 14 October 2010, Union Syndicale SolidairesIsère v Premier ministre and Others, C-428/09, ECLI:EU:C:2010:612; 4 December 2014,
FNV Kunsten Informatie en Media v Staat der Nederlanden, C-413/13,
ECLI:EU:C:2014:2411; 9 July 2015, Ender Balkaya v Kiesel Abbruch- und Recycling
Technik GmbH, C-229/14, ECLI:EU:C:2015:455; 17 November 2016, Betriebsrat derRuhrlandklinik gGmbH v Ruhrlandklinik gGmbH, C-216/15, ECLI:EU:C:2016:883; 16 July
2020, UX v Governo della Repubblica italiana, C-658/18, ECLI:EU:C:2020:572; and orderof the Court of Justice of 22 April 2020, B v Yodel Delivery Network Ltd, C-692/19,
ECLI:EU:C:2020:288.
Judgements of the Court of Justice of 13 January 2004, Debra Allonby v Accrington &Rossendale College, Education Lecturing Services, trading as Protocol Professional andSecretary of State for Education and Employment, C-256/01, ECLI:EU:C:2004:18 ; 11November 2010, Dita Danosa v LKB Līzings SIA, C-232/09, ECLI:EU:C:2010:674 and4 December 2014 FNV Kunsten Informatie en Media v Staat der Nederlanden, C-413/13,
ECLI:EU:C:2014:2411

10107/23
ANNEX

RS/mk
LIFE.4

19

EN

(22)

When the existence of an employment relationship is established based on facts, the party
acting as employer should be clearly identified and that party should fulfil all the obligations
resulting from its role as employer.

(23)

Ensuring correct determination of the employment status should not prevent the
improvement of conditions of genuine self-employed persons performing platform work.
Where a digital labour platform decides – on a purely voluntary basis or in agreement withthe persons concerned – to pay for social protection, accident insurance or other forms of
insurance, training measures or similar benefits to self-employed persons working throughthat platform, those benefits as such should not be regarded as determining elements
indicating the existence of an employment relationship.

(24)

Direction and control, or legal subordination, is an essential element of the definition of an
employment relationship in the Member States and in the case-law of the Court of Justice.
Control and direction can be exerted over persons performing platform work by a wide
variety of means and in different circumstances, as both national courts and the Court ofJustice have ascertained. When digital labour platforms control the execution of work, they
act like employers in an employment relationship. In addition, some terms and conditions
applicable to persons performing platform work are typically determined and imposed
unilaterally in practice by the digital labour platform, leaving no possibility for the person
performing platform work to influence the substance of such terms and conditions.
Therefore, contractual relationships of this kind should be deemed, by virtue of a legal
presumption, to be an employment relationship between the platform and the person
performing platform work through it, where a digital labour platform exercises, either
through its terms and conditions applicable to the contractual relationship in question or its
acting in practice, a certain level of direction and control, expressed by fulfilling at least
three of the criteria for triggering the presumption.

10107/23
ANNEX

RS/mk
LIFE.420EN

(24a) When the digital labour platform complies with measures or rules which are required by law
or collective agreements, applicable to genuine solo self-employed, this is not as such to beunderstood as fulfilling one or more criteria for triggering the legal presumption under thisDirective.
(24b) In its guidelines on the application of Union competition law to collective agreements
regarding the working conditions of solo self-employed persons, the Commission clarifies
that, in its view, collective agreements by solo self-employed persons who are in a situationcomparable to that of workers fall outside the scope of Article 101 TFEU. It is importantthat Member States take into account the opportunities outlined by the Guidelines on theapplication of Union competition law to collective agreements regarding the working
conditions of genuine solo self-employed persons, published by the European
Commission22. According to the Commission, collective agreements between solo selfemployed persons and digital labour platforms relating to working conditions fall outside thescope of Article 101 TFEU, offering the opportunity to improve working conditions of suchsolo self-employed persons, in particular those performing platform work. These collective
agreements should, however, not undermine the objectives pursued by this Directive, inparticular the correct classification of persons performing platform work with regard to theiremployment status.

22

C(2022) 6846 final

10107/23
ANNEX

RS/mk
LIFE.4

21

EN

(25)

Criteria indicating that a digital labour platform controls the execution of work and that aperson performing platform work is likely to be in an employment relationship should be
included in the Directive in order to make the legal presumption operational and facilitate
the enforcement of workers’ rights. Those criteria should be inspired by Union and nationalcase law. The criteria should include concrete elements showing that the digital labour
platform determines the upper limits of the level of remuneration or its range, requires therespect of rules and gives instructions with regard to appearance, conduct towards therecipient of the service or performance of the work, restricts the discretion to choose
working hours or periods of absence, to refuse tasks, to use subcontractors or substitutes or
prevents the person performing platform work from developing business contacts withpotential clients, including by using a number of conditions or through a system ofsanctions. The criteria should also comprise concrete elements showing that the digitallabour platform closely supervises the performance of work, also by thoroughly verifying
the quality of the results of the work of persons performing platform work. This includes
assessing or regularly taking stock of the work performance or work progress which can also
be performed by electronic means, such as camera surveillance, location tracking, counting
keystrokes or taking screenshots or using other functions in computers or smartphones.
Supervision does not include, on the contrary, the use of electronic tools for matching theperson performing platform work and the recipient of the service. At the same time, thecriteria should not cover situations where the persons performing platform work are genuine
self-employed. Genuine self-employed persons are themselves responsible vis-à-vis theircustomers for how they perform their work and the quality of their outputs. The freedom to,notably, choose working hours or periods of absence, to refuse tasks, to use subcontractors
or substitutes or not to be limited in working for any third party is to be considered one of
the characteristics of genuine self-employment. Restricting such freedom can take different
forms, considering that the platform economy model is constantly evolving.

10107/23
ANNEX

RS/mk
LIFE.422EN

(25a) Member States should, in accordance with their national legal and judicial systems, establish
a framework of supporting measures to ensure the effective implementation of the legal
presumption. Such implementation is relevant to all parties that have a stake in the correct
determination of the employment status, such as the worker, the digital labour platform andsocial partner organisations. In order for the presumption to be effective in practice, three ofthe criteria indicating that the person performing platform work is likely to be considered inan employment relationship should be always fulfilled to trigger its application. The purposeof these criteria is to provide a set of easily understandable indications that point to thelikely existence of an employment relationship and thus facilitate the access of the person
performing platform work to the relevant rights derived from the existence of an
employment relationship by means of the legal presumption.
(25c) In line with the objective of this Directive to improve working conditions for platformworkers, by correctly determining their employment relationship and thereby ensuring thatthey enjoy the relevant rights deriving from Union law, national law and collective
agreements, the legal presumption should apply in all relevant administrative or judicial
proceedings, where the employment status of the person performing platform work is atstake. While this Directive does not impose any obligation on Member States to apply thelegal presumption in tax, criminal and social security proceedings, nothing in this Directive
should prevent Member States, as a matter of national law, from applying that presumption
in those or other administrative or judicial proceedings or from recognising the results ofproceedings in which the presumption has been applied for the purposes of providing rights
to reclassified workers under other areas of law.
(26)

[…]

(27)

[…]

10107/23
ANNEX

RS/mk
LIFE.4

23

EN

(28)

The relationship between a person performing platform work and a digital labour platform
may not meet the requirements of an employment relationship in accordance with thedefinition laid down in the law, collective agreements or practice in force of the respective
Member State with consideration to the case-law of the Court of Justice, even though criteria
indicate that a person performing platform work is likely to be in an employment
relationship. In judicial or administrative proceedings, where the legal presumption applies,
Member States should ensure the possibility to rebut the legal presumption by proving, on
the basis of the aforementioned definition, that the relationship in question is not an
employment relationship. Digital labour platforms have a complete overview of all factual
elements determining the legal nature of the relationship, in particular the algorithms
through which they manage their operations. Therefore, they should have the burden of
proof where they argue that the contractual relationship in question is not an employment
relationship. In addition, when the person performing platform work who is the subject ofthe presumption seeks to rebut the legal presumption, the digital labour platform should be
required to assist that person, notably by providing all relevant information held by theplatform in respect of that person. A successful rebuttal of the presumption in judicial oradministrative proceedings should not preclude the application of the presumption insubsequent judicial proceedings or appeals, in accordance with national procedural law.

(28a) While the legal presumption should apply in proceedings initiated by a person performing
platform work where the employment status is at stake, Member States might grantcompetent national administrative authorities in charge of verifying compliance with orenforcing relevant legislation, such as labour inspectorates, a discretion not to apply that
presumption, if they act on their own initiative and if it is manifest that the person
performing platform work is not a worker as defined by the law, collective agreements orpractice in force in the Member State in question, with consideration to the case-law of the
Court of Justice. A national framework to reduce litigation and increase legal certainty isimportant.

10107/23
ANNEX

RS/mk
LIFE.424EN

(28b) Member States should be able to provide that judicial or administrative proceedings initiatedby the digital labour platforms in order to challenge the decision of a judicial oradministrative authority taken on the basis of the application of the legal presumption do nothave a suspensive effect on the relevant decision.
(28c) In the interest of legal certainty, the legal presumption should not have any retroactive legal
effects before the transposition date of this Directive and should therefore only apply to theperiod starting from that date, including for contractual relationships entered into before andstill ongoing on that date. Claims relating to the possible existence of an employment
relationship before that date and resulting rights and obligations until that date should
therefore be assessed only on the basis of national law and Union law predating thisDirective.
(28d) Effective implementation of the legal presumption through appropriate measures, such as
disseminating information to the public, developing guidance and providing for effective
controls and inspections is essential to ensure legal certainty and transparency for all parties
involved. These measures should avoid reclassification of genuine self-employed, take into
account the specific situation of start-ups to support the entrepreneurial potential and theconditions for the sustainable growth of digital labour platforms in the Union.

10107/23
ANNEX

RS/mk
LIFE.4

25

EN

(29)

In the context of platform work, persons performing platform work are often subject todecisions taken through or with the support of automated monitoring or decision-making
systems. Consent of persons performing platform work to the processing of personal data is
not always freely given, as persons performing platform work not systematically have agenuine free choice or are able to refuse or withdraw consent without detriment concerning
their contractual relationship, despite such consent not being necessary to perform platform
work, and there is an imbalance between the person performing platform work and thedigital labour platform running the automated monitoring or decision-making systems.
While Regulation (EU) 2016/679 establishes the general framework for the protection ofnatural persons with regard to the processing of personal data, it is necessary to lay down
specific rules addressing the concerns that are related to the processing of personal data byuse of automated monitoring or decision-making systems in the context of platform work. In
particular, digital labour platforms should not process any personal data on the emotional or
psychological state of the person performing platform work, process any personal data in
relation to their private conversations, and should not collect any personal data while theperson performing platform work is not offering or performing platform work. In thiscontext, terms relating to the protection of personal data in this Directive should beunderstood in light of the definitions set out in Regulation (EU) 2016/679.

(30)

[…]

(31)

[…]

10107/23
ANNEX

RS/mk
LIFE.4

26

EN

(32)

Without affecting the rights and obligations stemming from Regulation (EU) 2016/679, thisDirective provides for additional safeguards concerning the use of automated monitoring or
decision-making systems in the context of platform work. Digital labour platforms should be
subject to transparency obligations in relation to automated monitoring or decision-making
systems that are used to collect data, supervise or evaluate the work performance throughelectronic means; and automated decision-making systems which are used to take or support
decisions that significantly affect persons performing platform work working conditions,
including their access to work assignments, their earnings, their safety and health, theirworking time, their promotion and their contractual status, including the restriction,suspension or termination of their account. In addition to what is provided in Regulation(EU) 2016/679, information concerning such systems should also be provided where
decisions are not solely based on automated processing, provided that they are supported byautomated systems. It should also be specified which kind of information should be
provided to persons performing platform work regarding such automated systems, as well as
in which form and when it should be provided. Information on automated monitoring or
decision-making systems should also be provided to representatives of platform workers andto national labour authorities, in order to enable them to exercise their functions.

(33)

This information obligation should not require digital labour platforms, to disclose thedetailed functioning of their automated monitoring or decision-making systems, including
algorithms, or other detailed data that contains commercial secrets or is protected byintellectual property rights. However, the result of those considerations should not be arefusal to provide all the information required by this Directive.

(34)

[…]

10107/23
ANNEX

RS/mk
LIFE.4

27

EN

(35)

Digital labour platforms make extensive use of automated monitoring or decision-making
systems in managing persons performing platform work. Monitoring by electronic means
can be intrusive and decisions taken or supported by such systems, such as those related tothe offer of assignment of tasks, the earnings, their safety and health, their working time,
their access to training, their promotion or status within the organisation and contractual
status, directly affect the persons performing platform work, who might not have a directcontact with a human manager or supervisor. Digital labour platforms should therefore
monitor and regularly evaluate the impact of individual decisions taken or supported byautomated monitoring or decision-making systems on working conditions. Digital labour
platforms should ensure sufficient human resources for this purpose. The persons charged by
the digital labour platform with the function of monitoring should have the necessarycompetence, training and authority to exercise that function and in particular the right tocancel automated decisions. They should be protected from dismissal, disciplinary measuresor other adverse treatment for exercising their functions. In addition to obligations under
Regulation (EU) 2016/679, this Directive provides for distinct obligations, which apply inthe context of platform work.

(36)

Regulation (EU) 2016/679 requires data controllers to implement suitable measures tosafeguard data subjects’ rights and freedoms and legitimate interests in cases where the latterare subject to decisions based solely on automated processing. That provision requires, as aminimum, the data subject’s right to obtain human intervention on the part of the controller,
to express his or her point of view and to contest the decision.

10107/23
ANNEX

RS/mk
LIFE.4

28

EN

(37)

This Directive provides for rules in addition to Regulation 2016/679 in the context ofalgorithmic management in platform work. Persons performing platform work should havethe right to obtain an explanation from the digital labour platform for a decision, the lack ofdecision or a set of decisions taken or supported by automated systems that significantly
affect them. For that purpose the digital labour platform should provide the possibility forthem to discuss and clarify the facts, circumstances and reasons for such decisions with ahuman contact person at the digital labour platform. In addition, if a digital labour platform
restricts, suspends or terminates the account of a person performing platform work, refuses
the remuneration for work performed by that person, or affects his or her contractual status,
the digital labour platform should provide the person performing platform work with awritten statement of reasons for that decision. as such decisions are likely to haveparticularly significant negative effects on persons performing platform work, in particular
their potential earnings. Where the explanation or reasons obtained are not satisfactory or
where persons performing platform work consider their rights infringed by any decision thatsignificantly affects them, they should also have the right to request the digital labour
platform to review the decision and to obtain a substantiated reply without undue delay.
Where such decisions infringe those persons’ rights, such as labour rights, the right to nondiscrimination or to the protection of their personal data, the digital labour platform should
rectify such decisions without undue delay or, where that is not possible, provide
compensation for the damage sustained, and take the necessary steps to avoid similardecisions in the future.

10107/23
ANNEX

RS/mk
LIFE.4

29

EN

(38)

Council Directive 89/391/EEC23 introduces measures to encourage improvements in thesafety and health of workers at work, including the obligation for employers to minimiserisks and to assess the occupational health and safety risks. As automated monitoring or
decision-making systems potentially can have significant impact on the physical and mental
health of platform workers, digital labour platforms should evaluate those risks, assess
whether the safeguards of the systems are appropriate to address those risks and takeappropriate preventive and protective measures. They should avoid that the use of such
systems results in undue pressure on workers or puts their health at risk. In order tostrengthen the effectiveness of these provisions, the digital labour platform should maketheir risk evaluation and the assessment of the mitigating measures available to platformworkers, their representatives and the competent authorities.

(39)

As the introduction of or substantial changes in the use of automated monitoring or decisionmaking systems by digital labour platforms have direct impacts on the work organisationand individual working conditions of platform workers, it is key to ensure that rights andobligations on information and consultation, and in particular those laid down underDirective 2002/14/EC, can be directly exercised by platform workers' representatives and,
where there are no representatives, by platform workers. Additional measures are necessary
to ensure that digital labour platforms inform and consult platform workers or theirrepresentatives before such decisions are taken, at the appropriate level and, given thetechnical complexity of algorithmic management systems, with the assistance of an expert
chosen by the platform workers or their representatives in a concerted manner where needed.
The information and consultation measures as contained in Directive 2002/14/EC remain
unaffected by this Directive.

23

Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures toencourage improvements in the safety and health of workers at work (OJ L 183, 29.6.1989,
p. 1).

10107/23
ANNEX

RS/mk
LIFE.4

30

EN

(40)

Persons who do not have an employment relationship constitute a significant part of thepersons performing platform work. The impact of automated monitoring or decision-making
systems used by digital labour platforms on the protection of their personal data and theirearning opportunities is similar to that on platform workers. Therefore, the rights in thisDirective pertaining to the protection of natural persons in relation to the processing of
personal data in the context of algorithmic management, namely those regardingtransparency on automated monitoring or decision-making systems, restrictions to process orcollect personal data, human monitoring and review of significant decisions, should also
apply to persons performing platform work who do not have an employment relationship.
The rights pertaining to health and safety at work and information and consultation of
platform workers or their representatives, which are specific to workers in view of Union
law, should not apply to them. Regulation (EU) 2019/1150 provides safeguards regarding
fairness and transparency for self-employed persons performing platform work, provided
that they are considered business users within the meaning of that Regulation. With regards
to human review of significant decisions, the specific provisions of Regulation (EU)2019/1150 should prevail in respect of business users.

(41)

In order to ensure that digital labour platforms comply with labour legislation andregulations, in particular if they are established in another country than the Member State inwhich the platform worker is performing work, digital labour platforms should declare work
performed by platform workers to the competent authorities of the Member State in which
the work is performed. This obligation should not replace the obligations of declaration or
notification established by other Union instruments.

10107/23
ANNEX

RS/mk
LIFE.4

31

EN

(42)

Information on the number of persons performing platform work through digital labour
platforms, information on their contractual or employment status and the general terms andconditions applicable to those contractual relationships is essential to support relevant
authorities in correctly determining the employment status of persons performing platformwork and in ensuring compliance with legal obligations as well as representatives ofplatform workers in the exercise of their representative functions and should therefore be
made accessible to them. Those authorities and representatives should also have the right to
ask digital labour platforms for additional clarifications and details regarding theinformation provided.

(43)

An extensive system of enforcement provisions for the social acquis in the Union has beendeveloped, elements of which should be applied to this Directive in order to ensure that
persons performing platform work have access to effective and impartial dispute resolution
and a right to redress, including compensation for the damage sustained. Specifically, having
regard to the fundamental nature of the right to effective legal protection, persons
performing platform work should continue to enjoy such protection even after the end of theemployment or other contractual relationship giving rise to an alleged breach of rights under
this Directive.

(44)

Representatives of persons performing platform work should be able, in accordance withnational law and practice, to represent one or several persons performing platform work in
any judicial or administrative proceedings to enforce any of the rights or obligations arisingfrom this Directive. Bringing claims on behalf of or supporting several persons performing
platform work is a way to facilitate proceedings that would not have been brought otherwise
because of procedural and financial barriers or a fear of reprisals.

10107/23
ANNEX

RS/mk
LIFE.4

32

EN

(45)

Platform work is characterised by the lack of a common workplace where workers can get toknow each other and communicate with each other and with their representatives, also inview of defending their interests towards the digital labour platform. It is therefore necessary
to create digital communication channels, in line with the digital labour platforms’ workorganisation, where persons performing platform work can exchange with each other and becontacted by representatives of platform workers. Digital labour platforms should createsuch communication channels within their digital infrastructure or through similarly
effective means, while respecting the protection of personal data and refraining fromaccessing or monitoring those communications.

(46)

In administrative or judicial proceedings regarding the correct determination of theemployment status of persons performing platform work, the elements regarding theorganisation of work allowing to establish the employment status and in particular whether
the digital labour platform controls certain elements of the performance of work may be in
the possession of the digital labour platform and not easily accessible to persons performing
platform work and competent authorities. National courts or competent authorities should
therefore be able to order the digital labour platform to disclose any relevant evidence whichlies in their control, including confidential information, subject to effective measures toprotect such information.

(47)

Given that this Directive provides for rules in addition to Regulation (EU) 2016/679 in thecontext of platform work to ensure the protection of personal data of person performing
platform work, the national supervisory authorities referred to in Regulation (EU) 2016/679
should be competent to monitor the application of those safeguards. The procedural
framework of Regulation (EU) 2016/679 should apply for the enforcement of the additionalrules of this Directive, in particular as regards supervision, cooperation and consistency
mechanisms, remedies, liability and penalties, including the competence to impose
administrative fines up to the amount referred to in that Regulation.

10107/23
ANNEX

RS/mk
LIFE.4

33

EN

(48)

Automated monitoring or decision-making systems used in the context of platform work
involve the processing of personal data of persons performing platform work and affect theworking conditions and rights of the platform workers among them, which raises issues ofdata protection law as well as of related fields of law, like labour law. Data protection
supervisory authorities and other competent authorities should therefore cooperate in theenforcement of this Directive, including by exchanging relevant information with eachother, without affecting the independence of data protection supervisory authorities.

(48a) In order to make the protection by this Directive effective, it is essential to protect persons
performing platform work, who exercise their respective rights granted by the Directive,
from dismissal, as far as platform workers are concerned, or termination of contract, as far as
self-employed persons are concerned, and from equivalent measures.
(49)

Since the objective of this Directive, namely to improve working conditions in platform
work, cannot be sufficiently achieved by the Member States but can rather, by reason of theneed to establish common minimum requirements, be better achieved at Union level, theUnion may adopt measures, in accordance with the principle of subsidiarity as set out in
Article 5 of the Treaty on European Union. In accordance with the principle ofproportionality as set out in that Article, this Directive does not go beyond what is necessary
in order to achieve that objective.

10107/23
ANNEX

RS/mk
LIFE.4

34

EN

(50)

This Directive lays down minimum requirements, thus leaving untouched Member States’
prerogative to introduce and maintain provisions which are more favourable for persons
performing platform work. Rights acquired under the existing legal framework should
continue to apply, in particular as regards mechanisms to ascertain the existence of an
employment relationship, unless more favourable provisions are introduced by thisDirective. The implementation of this Directive cannot be used to reduce existing rights set
out in existing Union or national law in this field, nor can it constitute valid grounds for
reducing the general level of protection in the field covered by this Directive.

(50a) The autonomy of the social partners is to be respected. It should therefore be possible for thesocial partners to consider that in specific situations related to platform workers’ working
conditions different provisions are more appropriate, for the pursuit of the purpose of thisDirective, than certain standards set out in this Directive. Member States should therefore beable to allow the social partners to maintain, negotiate, conclude and enforce collective
agreements which differ from certain provisions contained in those Articles, while
respecting the overall protection of platform workers.
(51)

In implementing this Directive Member States should avoid imposing administrative,
financial and legal constraints in a way which would hold back the creation anddevelopment of micro, small and medium-sized enterprises. Member States should assess
the impact of their transposition measures on start-ups and on small and medium-sizedenterprises in order to ensure that they are not disproportionately affected, giving specificattention to micro-enterprises and to the administrative burden. Member States should also
publish the results of such assessments.

10107/23
ANNEX

RS/mk
LIFE.4

35

EN

(52)

The Member States may entrust the social partners with the implementation of thisDirective, where the social partners jointly request to do so and provided that the Member
States take all the necessary steps to ensure that they can at all times guarantee the results
sought under this Directive. They should also, in accordance with national law and practice,take adequate measures to ensure that the social partners are effectively involved and topromote and enhance social dialogue with a view to implementing the provisions of thisDirective.

(53)

In accordance with the Joint Political Declaration of 28 September 2011 of Member States
and the Commission on explanatory documents,24 Member States have undertaken toaccompany, in justified cases, the notification of their transposition measures with one ormore documents explaining the relationship between the components of a directive and thecorresponding parts of national transposition instruments. With regard to this Directive, thelegislator considers the transmission of such documents to be justified.

(54)

The European Data Protection Supervisor was consulted in accordance with Article 42(1) ofRegulation (EU) 2018/1725 of the European Parliament and of the Council25 and deliveredan opinion on 2.02.202226,

HAVE ADOPTED THIS DIRECTIVE:

24
25

26

OJ C 369, 17.12.2011, p. 14.
Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October
2018 on the protection of natural persons with regard to the processing of personal data by
the Union institutions, bodies, offices and agencies and on the free movement of such data,
and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295,
21.11.2018, p. 39).
Doc. 5966/22

10107/23
ANNEX

RS/mk
LIFE.436

ENCHAPTER I
GENERAL PROVISIONS
Article 1
Subject matter and scope
1.

The purposes of this Directive are to improve the working conditions of platform workers andthe protection of persons performing platform work regarding the processing of their personal
data through the use of automated monitoring or decision-making systems.

1a.

These purposes are pursued by:•introducing measures to facilitate the correct determination of the employment status of
persons performing platform work;•

improving transparency, fairness and accountability in the use of automated monitoringor decision-making systems for persons performing platform work; and•improving transparency on platform work, including in cross-border situations.

2.

[…]

3.

This Directive applies to persons performing platform work in the Union, to digital labour
platforms organising platform work performed in the Union, irrespective of the platform’s
place of establishment and irrespective of the law otherwise applicable.

4.

With respect to representatives of persons performing platform work other than those
representing platform workers, this Directive shall apply only to the extent that a
representation of persons performing platform work is provided for by national law andpractices.

10107/23
ANNEX

RS/mk
LIFE.437

EN

Article 2
Definitions
1.

For the purposes of this Directive, the following definitions shall apply:(1)‘digital labour platform’ means any natural or legal person providing a service whichmeets all of the following requirements:(a)

it is provided, at least in part, at a distance through electronic means, such as a
website or a mobile application;(b)

it is provided at the request of a recipient of the service;(c)

it involves, as a necessary and essential component, the organisation of work
performed by individuals in return for payment, irrespective of whether that work
is performed online or in a certain location;

(d)
(2)

it involves the use of automated monitoring or decision-making systems.

‘platform work’ means any work organised through a digital labour platform andperformed in the Union by an individual on the basis of a contractual relationshipbetween the digital labour platform and the individual or an intermediary, irrespectiveof whether a contractual relationship exists between the individual or an intermediaryand the recipient of the service;

10107/23
ANNEX

RS/mk
LIFE.4

38

EN

(3)

‘person performing platform work’ means any individual performing platform work,irrespective of the nature of the contractual relationship or its designation by the parties
involved;(4)‘platform worker’ means any individual performing platform work who has an
employment contract or is deemed to have an employment relationship as defined by
the law, collective agreements or practice in force in the Member States withconsideration to the case-law of the Court of Justice;(4a) 'intermediary' means any natural or legal person who establishes a contractual
relationship, including by subcontracting, with a person performing platform work or adigital labour platform for the purposes of making platform work available through that
digital labour platform;(4b) ‘terms and conditions’ means any term and condition or specification, irrespective of
their name or form, which govern the contractual relationship between the digital labour
platform and a person performing platform work and are unilaterally determined by thedigital labour platform.
(5)

[…]

(6)

[…]

(6a) ‘automated monitoring systems’ means systems which are used to collect personal dataon persons performing platform work, supervise or evaluate their work performancethrough electronic means;

10107/23
ANNEX

RS/mk
LIFE.439EN

(6b) ‘automated decision-making systems’ means systems which are used to take or support
decisions that significantly affect persons performing platform work, in particular theoffer or assignment of tasks to them, their earnings, their safety and health, theirworking time, their access to training and their contractual status, including the
restriction, suspension or termination of their account.
2.

The definition of digital labour platforms laid down in paragraph 1, point (1), shall not include
providers of a service whose primary purpose is to exploit or share assets or to resell goods orservices.
Article 2aIntermediaries

Member states shall ensure that the use of intermediaries does not lead to a reduction in theprotection afforded by this Directive to persons performing platform work.

10107/23
ANNEX

RS/mk
LIFE.440

ENCHAPTER IIEMPLOYMENT STATUS
Article 3
Correct determination of the employment status
1.

Member States shall have in place appropriate procedures to verify and ensure the correct
determination of the employment status of persons performing platform work, with a view toascertaining the existence of an employment relationship as defined by the law, collective
agreements or practice in force in the Member States with consideration to the case-law of the
Court of Justice, and ensuring that platform workers enjoy the rights related to that
employment relationship.

2.

The determination of the existence of an employment relationship shall be guided primarily
by the facts relating to the actual performance of work, taking into account the use of
automated monitoring or decision-making systems in the organisation of platform work,irrespective of how the relationship is classified in any contractual arrangement that may havebeen agreed between the parties involved. Where the existence of an employment relationshipis established based on facts, the party assuming the obligations of the employer shall beclearly identified in accordance with national legal systems.
Article 4
Legal presumption

1.

Unless Member States provide for more favourable provisions pursuant to Article 20, therelationship between a digital labour platform and a person performing platform work throughthat platform shall be legally presumed to be an employment relationship when the digitallabour platform exerts control and direction over the performance of work by that person.

10107/23
ANNEX

RS/mk
LIFE.441

EN

For the purpose of the previous subparagraph, exerting control and direction shall be
understood as fulfilling, either by virtue of its applicable terms and conditions or in practice,at least three of the criteria below:(a)

The digital labour platform determines upper limits for the level of remuneration;(b)

The digital labour platform requires the person performing platform work to respectspecific rules with regard to appearance, conduct towards the recipient of the service or
performance of the work;(c)

The digital labour platform supervises the performance of work including by electronicmeans;(d)

The digital labour platform restricts the freedom, including through sanctions, toorganise one’s work by limiting the discretion to choose one’s working hours or periodsof absence;(da) The digital labour platform restricts the freedom, including through sanctions, toorganise one’s work by limiting the discretion to accept or to refuse tasks;(db) The digital labour platform restricts the freedom, including through sanctions, toorganise one’s work by limiting the discretion to use subcontractors or substitutes;(e)

The digital labour platform restricts the possibility to build a client base or to perform
work for any third party.

1a.

The rules laid down in this Article and Article 4a shall not affect the discretion of courts andcompetent authorities to ascertain the existence of an employment relationship, as defined by
the law, collective agreements or practice in force in the Member State in question, withconsideration to the case-law of the Court of Justice, regardless of the number of criteria
fulfilled.

10107/23
ANNEX

RS/mk
LIFE.4

42

EN

2.

[…]

3.

[…]

4.

[…]
Article 4a
Application of the presumption and rebuttal

1.

The legal presumption shall apply in all relevant administrative or judicial proceedings where
the correct determination of the employment status of the person performing platform work is
at stake.
The legal presumption shall not apply to tax, criminal and social security proceedings.
However, Member States may apply the legal presumption in those proceedings as a matter ofnational law.

2.

Member States may grant competent national administrative authorities a discretion not toapply the presumption, in cases where:a)those authorities are verifying compliance with or enforcing relevant legislation on theirown initiative, andb)

10107/23
ANNEX

it is manifest that the person performing platform work is not a platform worker.

RS/mk
LIFE.4

43

EN

3.

Member States shall ensure, in proceedings where the presumption applies, the possibility forany of the parties to rebut the legal presumption.
To this effect:a)where the digital labour platform argues that the contractual relationship in question is
not an employment relationship as defined by the law, collective agreements or practicein force in the Member State in question, with consideration to the case-law of the Courtof Justice, the burden of proof shall be on that digital labour platform;b)where the person performing the platform work argues that the contractual relationshipin question is not an employment relationship as defined by the law, collective
agreements or practice in force in the Member State in question, with consideration to
the case-law of the Court of Justice, the digital labour platform shall be required toassist the proper resolution of the proceedings, notably by providing all relevant
information held by it.

4.

With regard to contractual relationships entered into before and still ongoing on the date set
out in Article 21(1), the legal presumption referred to in Article 4 shall only apply to theperiod starting from that date.

5.

Where a digital labour platform challenges an administrative or judicial decision determining
the employment status of a person performing platform work on the basis of the application of
the presumption, Member States may provide that such a proceeding shall not have asuspensive effect on that decision.

10107/23
ANNEX

RS/mk
LIFE.444

EN

Article 4b
Framework of supporting measures
Member States shall establish a framework of supporting measures in order to ensure the effective
implementation of the legal presumption referred to in Article 4. In particular, they shall:(a)ensure that information on the application of the legal presumption is made publicly available
in a clear, comprehensive and easily accessible way;(b)

develop guidance for digital labour platforms, persons performing platform work and social
partners to understand and put in practice the legal presumption including its rebuttal;(c)in line with national law or practice, develop guidance for competent national authorities toproactively target and pursue non-compliant digital labour platforms;(d)in line with national law or practice, provide for effective controls and inspections conductedby national authorities, while ensuring that such controls and inspections are proportionate
and non-discriminatory.
Article 5[…]10107/23
ANNEX

RS/mk
LIFE.445

ENCHAPTER III
MANAGEMENT BY AUTOMATED MONITORING OR DECISION-MAKING SYSTEMS
Article 5a
Limitations on processing of personal data by means of automated monitoring or decision-making
systems
1.

Digital labour platforms shall not, by means of automated monitoring or decision-making
systems:(a)process any personal data on the emotional or psychological state of the person
performing platform work;(b)process any personal data in relation to private conversations; including exchanges withplatform workers’ representatives;(c)collect any personal data while the person performing platform work is not offering or
performing platform work.
Article 6
Transparency on automated monitoring or decision-making systems

1.

Member States shall require digital labour platforms to inform persons performing platformwork of the use of automated monitoring or decision-making systems.
This information shall concern:(a)as regards automated monitoring systems:(i)the fact that such systems are in use or are in the process of being introduced;(ii)

the categories of actions supervised, evaluated or for which data is collected bysuch systems, including evaluation by the recipient of the service;

10107/23
ANNEX

RS/mk
LIFE.4

46

EN

(b)

as regards automated decision-making systems:(i)the fact that such systems are in use or are in the process of being introduced;(ii)

the categories of decisions that are taken or supported by such systems;(iii) the main parameters that such systems take into account and the relative
importance of those main parameters in the automated decision-making, including
the way in which the personal data or behaviour of the person performing
platform work influence the decisions;(iv) the grounds for decisions to restrict, suspend or terminate the account of theperson performing platform work, to refuse the payment for work performed bythem, as well as for decisions on their contractual status or any decision withsimilar effects.
3.

Digital labour platforms shall provide the information referred to in paragraph 1 in the form ofa written document which may be in electronic format. They shall provide that information at
the latest on the first working day, as well as in the event of substantial changes and at any
time upon the request of the person performing platform work. The information shall bepresented in a concise, transparent, intelligible and easily accessible form, using clear andplain language.

4.

Digital labour platforms shall also make the information referred to in paragraph 1 available
to platform workers’ representatives. They shall also make this information available tocompetent national authorities upon their request.

5.

[…]

10107/23
ANNEX

RS/mk
LIFE.447

EN

Article 7
Human monitoring of automated systems
1.

Member States shall ensure that digital labour platforms monitor and regularly evaluate theimpact of individual decisions taken or supported by automated monitoring or decisionmaking systems on persons performing platform work.

2.

[…]

3.

Member States shall require digital labour platforms to ensure sufficient human resources formonitoring and evaluating the impact of individual decisions taken or supported by automatedmonitoring or decision-making systems. The persons charged by the digital labour platform
with the function of monitoring and evaluating shall have the necessary competence, training
and authority to exercise that function, including for overriding automated decisions. They
shall enjoy protection from dismissal or its equivalent, disciplinary measures or other adverse
treatment for exercising their functions.

4.

Information on the evaluation pursuant to paragraph 1 shall be made available to persons
performing platform work and to platform workers’ representatives. They shall also make thisinformation available to the competent national authorities upon their request.

10107/23
ANNEX

RS/mk
LIFE.448

EN

Article 8
Human review of significant decisions
1.

Member States shall ensure that persons performing platform work have the right to obtain an
explanation from the digital labour platform for any decision taken or supported by anautomated decision-making system that significantly affects them without undue delay.
Member States shall ensure that digital labour platforms provide persons performing platformwork with access to a contact person designated by the digital labour platform to discuss andto clarify the facts, circumstances and reasons having led to the decision. Digital labour
platforms shall ensure that such contact persons have the necessary competence, training andauthority to exercise that function.
Digital labour platforms shall provide the person performing platform work with a written
statement of the reasons for any decision taken or supported by an automated decision-making
system to restrict, suspend or terminate that person’s account, any decision to refuse thepayment for work performed, any decision on the contractual status of the person performing
platform work or any decision with similar effects, without undue delay.

2.

Where persons performing platform work are not satisfied with the explanation or the written
statement of reasons obtained or consider that the decision referred to in paragraph 1 infringes
their rights, they shall have the right to request the digital labour platform to review thatdecision. The digital labour platform shall respond to such request by providing the person
performing platform work with a substantiated reply in the form of a written document which
may be in electronic format without undue delay and in any event within two weeks of receiptof the request.

10107/23
ANNEX

RS/mk
LIFE.4

49

EN

3.

Where the decision referred to in paragraph 1 infringes the rights of a person performing
platform work, the digital labour platform shall rectify that decision without delay and in any
event within two weeks or, where such rectification is not possible, offer compensation for thedamage sustained. The digital labour platform shall take the necessary steps, including, if
appropriate, a modification of the automated decision-making system, in order to avoid suchdecisions in the future.

4.

This Article does not affect disciplinary and dismissal procedures laid down in national law
and practices and collective agreements.

5.

This Article shall not apply to persons performing platform work who are also 'business users'
within the meaning of Regulation (EU) 2019/1150.
Article 8a
Safety and health1.

Without affecting Council Directive 89/391/EEC and related directives in the field of safety
and health at work, with regard to platform workers, digital labour platforms shall:(a)evaluate the risks of automated monitoring or decision-making systems to their safety
and health, in particular as regards possible risks of work-related accidents,
psychosocial and ergonomic risks;(b)assess whether the safeguards of those systems are appropriate for the risks identified inview of the specific characteristics of the work environment;(c)2.

introduce appropriate preventive and protective measures.

Digital labour platforms shall not use automated monitoring or decision-making systems inany manner that puts undue pressure on platform workers or otherwise puts at risk thephysical and mental health of platform workers.

10107/23
ANNEX

RS/mk
LIFE.450

EN

Article 9
Information and consultation
1.

Without affecting the rights and obligations under Directive 2002/14/EC, Member States shallensure information and consultation of platform workers’ representatives or, where there areno such representatives, of the platform workers concerned by digital labour platforms, ondecisions likely to lead to the introduction of or substantial changes in the use of automatedmonitoring or decision-making systems.

2.

[…]

3.

The platform workers’ representatives or the platform workers concerned may be assisted by
an expert of their choice, in so far as this is necessary for them to examine the matter that is
the subject of information and consultation and formulate an opinion. Where a digital labour
platform employs more than 500 workers in the Member State concerned, the expenses for theexpert shall be borne by the digital labour platform, provided that they are proportionate.
Member States may determine the frequency of requests for an expert and the upper limit ofexpenses to be borne by the digital labour platform, while ensuring the effectiveness of theassistance.
Article 10[…]10107/23
ANNEX

RS/mk
LIFE.451

EN

CHAPTER IV
TRANSPARENCY ON PLATFORM WORK
Article 11
Declaration of platform work
Member States shall require digital labour platforms which are employers to declare work
performed by platform workers to the competent authorities of the Member State in which the work
is performed, in accordance with the rules and procedures laid down in the law of the Member
States concerned. This shall not affect specific obligations under Union law according to which
work shall be declared to relevant bodies of the Member State in cross-border situations.
Article 12
Access to relevant information on platform work
1.

Member States shall ensure that digital labour platforms make the following information
available to competent national authorities as well as to representatives of platform workers:(a)the number of persons performing platform work through the digital labour platform
concerned on a regular basis and their contractual or employment status;(b)

the general terms and conditions, determined by the digital labour platform, applicableto those contractual relationships, which apply to a large number of contractual
relationships;(c)10107/23
ANNEX

the intermediaries the digital labour platform has a contractual relationship with.

RS/mk
LIFE.4

52

EN

2.

The information shall be provided for each Member State in which persons are performing
platform work through the digital labour platform concerned. The information shall be
updated at least every six months, and, as regards paragraph 1, point (b), each time the terms
and conditions are substantially modified.

3.

The competent authorities set out in paragraph 1 and representatives of platform workers shallhave the right to ask digital labour platforms for additional clarifications and details regarding
any of the information provided. The digital labour platforms shall respond to such request
within a reasonable period of time by providing a substantiated reply.

4.

With regard to digital labour platforms which are micro, small or medium-sized enterprises,
Member States may provide that the periodicity for updating information in accordance withparagraph 2 is reduced to once every year.

10107/23
ANNEX

RS/mk
LIFE.453

ENCHAPTER V
REMEDIES AND ENFORCEMENT
Article 13
Right to redress
Without affecting Articles 79 and 82 of Regulation (EU) 2016/679, Member States shall ensure
that, persons performing platform work, including those whose employment or other contractual
relationship has ended, have access to effective and impartial dispute resolution and a right toredress, including compensation for the damage sustained, in the case of infringements of theirrights arising from this Directive.
Article 14
Procedures on behalf or in support of persons performing platform work
1.

Without affecting Article 80 of Regulation (EU) 2016/679, Member States shall ensure that
representatives of persons performing platform work and legal entities which have, in
accordance with national law or practice, a legitimate interest in defending the rights ofpersons performing platform work, may engage in any judicial or administrative procedure to
enforce any of the rights or obligations arising from this Directive. They may act on behalf orin support of one or several persons performing platform work in the case of an infringementof any right or obligation arising from this Directive, in accordance with national law andpractice.

2.

[…]10107/23
ANNEX

RS/mk
LIFE.4

54

EN

2a.

When necessary for the defence of the rights of persons performing platform work withregard to the protection of their personal data, digital labour platforms shall make theinformation referred to in Article 6, paragraph 4 and Article 7, paragraph 4, available torepresentatives of persons performing platform work other than representatives ofplatform workers.
Article 15
Communication channels for persons performing platform work

Member States shall take the necessary measures to ensure that digital labour platforms create thepossibility for persons performing platform work to contact and communicate with each other, andto contact and communicate with worker’s representatives, through the digital labour platforms’
digital infrastructure or similarly effective means, while complying with the obligations under
Regulation (EU) 2016/679 and Directive 2002/58/EC. Member States shall require digital labour
platforms to refrain from accessing or monitoring those contacts and communications.
Article 16
Access to evidence
1.

Member States shall ensure that in the proceedings referred to in Article 4a, national courts orcompetent authorities are able to order the digital labour platform to disclose any relevant
evidence which lies in their control.

2.

Member States shall ensure that national courts have the power to order the disclosure ofevidence containing confidential information where they consider it relevant to theproceeding. They shall ensure that, when ordering the disclosure of such information, national
courts have at their disposal effective measures to protect such information.

3.

[…]

10107/23
ANNEX

RS/mk
LIFE.455

EN

Article 17
Protection against adverse treatment or consequences
Member States shall introduce the measures necessary to protect persons performing platform work,
including those among them who are their representatives, from any adverse treatment by the digitallabour platform and from any adverse consequences resulting from a complaint lodged with thedigital labour platform or resulting from any proceedings initiated with the aim of enforcing
compliance with the rights provided for in this Directive.
Article 18
Protection from dismissal or termination of contract
1.

Member States shall take the necessary measures to prohibit the dismissal, termination ofcontract or their equivalent and all preparations for dismissal, termination of contract or theirequivalent of persons performing platform work, on the grounds that they have exercised therights provided for in this Directive.

2.

Persons performing platform work who consider that they have been dismissed, their contract
has been terminated or have been subject to measures with equivalent effect, on the grounds
that they have exercised the rights provided for in this Directive, may request the digitallabour platform to provide duly substantiated grounds for the dismissal, termination ofcontract or any equivalent measures. The digital labour platform shall provide those grounds
in writing without undue delay.

3.

Member States shall take the necessary measures to ensure that, when persons performing
platform work referred to in paragraph 2 establish, before a court or other competent authority
or body, facts from which it may be presumed that there has been such a dismissal, ,termination of contract or equivalent measures, it shall be for the digital labour platform toprove that the dismissal, termination of contract or equivalent measures were based on
grounds other than those referred to in paragraph 1.

10107/23
ANNEX

RS/mk
LIFE.4

56

EN

4.

[…]

5.

Member States shall not be required to apply paragraph 3 to proceedings in which it is for the
court or other competent authority or body to investigate the facts of the case.

6.

Paragraph 3 shall not apply to criminal proceedings, unless otherwise provided by theMember State.
Article 19
Supervision and penalties

1.

The supervisory authority or authorities responsible for monitoring the application ofRegulation (EU) 2016/679 shall also be responsible for monitoring and enforcing theapplication of Articles 5a to 8 of this Directive, in accordance with the relevant provisions in
Chapters VI, VII and VIII of Regulation (EU) 2016/679. The ceiling for administrative fines
referred to in Article 83(5) of that Regulation shall be applicable to infringements of Articles
5a to 8 of this Directive.

2.

The authorities referred to in paragraph 1 and other competent national authorities shall,where relevant, cooperate in the enforcement of this Directive, within the remit of theirrespective competences, in particular where questions on the impact of automated monitoringor decision-making systems on persons performing platform work arise. For that purpose,
those authorities shall exchange relevant information with each other, including information
obtained in the context of inspections or investigations, either upon request or at their own
initiative.

3.

Without prejudice to paragraph 1, Member States shall lay down the rules on penalties
applicable to infringements of national provisions adopted pursuant to provisions of thisDirective or of the relevant provisions already in force concerning the rights which are within
the scope of this Directive. The penalties provided for shall be effective, proportionate anddissuasive.

10107/23
ANNEX

RS/mk
LIFE.457

EN

CHAPTER VI
FINAL PROVISIONS
Article 20
Non-regression and more favourable provisions
1.

This Directive shall not constitute valid grounds for reducing the general level of protection
already afforded to platform workers within Member States, including with regards toestablished procedures for the correct determination of the employmnent status of persons
persorming platform work. In particular, the legal presumption set out in Article 4 shall notaffect existing national rules providing for reclassification procedures which are morefavourable to platform workers.

2.

This Directive shall not affect the Member States’ prerogative to apply or to introduce laws,
regulations or administrative provisions which are more favourable to platform workers, or toencourage or permit the application of collective agreements which are more favourable toplatform workers, in line with the objectives of this Directive. As regards persons performing
platform work who are not in an employment relationship, this paragraph shall apply insofar
as such national rules are compatible with the rules on the functioning of the internal market.

3.

This Directive is without prejudice to any other rights conferred on persons performing
platform work by other legal acts of the Union.

10107/23
ANNEX

RS/mk
LIFE.458

EN

Article 20a
Member States may, by law or by collective agreements, provide for more specific rules to ensure
the protection of the rights and freedoms in respect of the processing of persons performing
platform work's personal data under Articles 6, 7 and 8 of this Directive. Member States may allow
the social partners to maintain, negotiate, conclude and enforce collective agreements, inaccordance with national law or practice, which, while respecting the overall protection of platformworkers, establish arrangements concerning platform work which differ from those referred to in
Articles 8a, 9, 11 and 12 of this Directive.
Article 21
Transposition and implementation
1.

Member States shall bring into force the laws, regulations and administrative provisions
necessary to comply with this Directive by [2 years after entry into force] at the latest. They
shall immediately inform the Commission thereof.
When Member States adopt those provisions, they shall contain a reference to this Directive
or be accompanied by such a reference on the occasion of their official publication. The
methods of making such reference shall be laid down by Member States.

2.

Member States shall communicate to the Commission the text of the main measures ofnational law which they adopt in the field covered by this Directive.

3.

Member States shall, in accordance with their national law and practice, take adequate
measures to ensure the effective involvement of the social partners and to promote andenhance social dialogue with a view to implementing this Directive.

4.

Member States may entrust the social partners with the implementation of this Directive,
where the social partners jointly request to do so and provided that Member States take allnecessary steps to ensure that they can at all times guarantee the results sought under thisDirective.

10107/23
ANNEX

RS/mk
LIFE.459

EN

Article 22
Review by the Commission
By [5 years after entry into force], the Commission shall, after consulting the Member States, thesocial partners at Union level and key stakeholders, and taking into account the impact on micro,
small and medium-sized enterprises, review the implementation of this Directive and propose,
where appropriate, legislative amendments. In such review, the Commission shall pay particularattention to the impact of the use of intermediaries on the overall implementation of this Directive.
Article 23
Entry into force
This Directive shall enter into force on the twentieth day following that of its publication in the
Official Journal of the European Union.
Article 24
Addressees
This Directive is addressed to the Member States.
Done at,
For the European Parliament

For the Council

The President

The President

10107/23
ANNEX

RS/mk
LIFE.4

60

EN