Council of theEuropean Union
Brussels, 10 December 2021
(OR. en)
14450/21
Interinstitutional File:
2021/0414(COD)
SOC 704
EMPL 549
MI 937DATAPROTECT 289
COVER NOTE
From:
date of receipt:
To:

Secretary-General of the European Commission, signed by Ms Martine
DEPREZ, Director
9 December 2021
Mr Jeppe TRANHOLM-MIKKELSEN, Secretary-General of the Councilof the European Union

No. Cion doc.:

COM(2021) 762 final

Subject:

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

Delegations will find attached document COM(2021) 762 final.

Encl.: COM(2021) 762 final

14450/21

RS/mk
LIFE.4

ENEUROPEAN
COMMISSION

Brussels, 9.12.2021
COM(2021) 762 final
2021/0414 (COD)

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

(Text with EEA relevance){SEC(2021) 581 final} - {SWD(2021) 395 final} - {SWD(2021) 396 final} {SWD(2021) 397 final}

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EXPLANATORY MEMORANDUM
1.

CONTEXT OF THE PROPOSAL•

Reasons for and objectives of the proposal

One of the objectives of the Union is the promotion of the well-being of its peoples andsustainable development of Europe based on a highly competitive social market economy,aiming at full employment and social progress.1 The right of every worker to working
conditions which respect their health, safety and dignity, and workers’ right to informationand consultation are enshrined in the Charter of Fundamental Rights of the European Union.
The European Pillar of Social Rights states that “regardless of the type and duration of theemployment relationship, workers have the right to fair and equal treatment regarding
working conditions and access to social protection.”2
In her political guidelines, President von der Leyen stressed that “digital transformation brings
fast change that affects our labour markets” and undertook the commitment to “look at ways
to improve the labour conditions of platform workers”.3 The proposed Directive delivers on
this commitment and supports the implementation of the European Pillar of Social Rights
Action Plan, welcomed by Member States, social partners and civil society at the Porto Social
Summit in May 2021, by addressing the changes brought by the digital transformation tolabour markets.
The digital transition, accelerated by the COVID-19 pandemic, is shaping the EU’s economy
and its labour markets. Digital labour platforms4 have become an important element of this
newly emerging social and economic landscape. They have continued expanding in size, withrevenues in the digital labour platform economy in the EU estimated to have grown by around500% in the last five years.5 Today, over 28 million people in the EU work through digitallabour platforms. In 2025, their number is expected to have reached 43 million.6 Digitallabour platforms are present in a variety of economic sectors. Some offer services “onlocation”, such as ride-hailing, delivery of goods, cleaning or care services. Others operate
solely online with services such as data encoding, translation or design. Platform work varies
in terms of level of skills required as well as the way the work is organised and controlled by
the platforms.
Digital labour platforms promote innovative services and new business models and create
many opportunities for consumers and businesses. They can efficiently match supply anddemand for labour and offer possibilities to make a living or earn additional income, including
for people who face barriers in access to the labour market, such as young people, people withdisabilities, migrants, people with minority racial and ethnic background or people withcaring responsibilities. Platform work creates opportunities to establish or broaden a client
base, sometimes across borders. It brings businesses a much wider access to consumers,
1
2
3
4
5
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Article 3 of the Treaty on European Union.
Principle 5 of the European Pillar of Social Rights.
Political Guidelines for the Next European Commission 2019-2024. ‘A Union that Strives for More.
My Agenda for Europe.’ Available online.
As defined in this proposal for a directive.
De Groen W., Kilhoffer Z., Westhoff L., Postica D. and Shamsfakhr F. (2021). Digital Labour
Platforms in the EU: Mapping and Business Models. Available online.
PPMI (2021), Study to support the impact assessment of an EU initiative on improving working
conditions in platform work. Available online.

1ENopportunities to diversify revenues and develop new business lines, thereby helping them togrow. For consumers it means improved access to products and services which would beotherwise hard to reach, as well as access to a new and more varied choice of services. Still,as digital labour platforms introduce new forms of work organisation, they challenge existingrights and obligations related to labour law and social protection.
Nine out of ten platforms active in the EU currently are estimated to classify people working
through them as self-employed.7 Most of those people are genuinely autonomous in theirwork and can use platform work as a way to develop their entrepreneurial activities.8 Suchgenuine self-employment is making a positive contribution to job creation, businessdevelopment, innovation, accessibility of services, and digitalisation in the EU.
However, there are also many people who experience subordination to and varying degrees ofcontrol by the digital labour platforms they operate through, for instance as regards pay levels
or working conditions. According to one estimate, up to five and a half million people
working through digital labour platforms could be at risk of employment status
misclassification.9 Those people are especially likely to experience poor working conditions
and inadequate access to social protection.10 As a result of the misclassification, they cannot
enjoy the rights and protections to which they are entitled as workers. These rights include theright to a minimum wage, working time regulations, occupational safety and healthprotection, equal pay between men and women and the right to paid leave, as well as
improved access to social protection against work accidents, unemployment, sickness and oldage.
Digital labour platforms use automated systems to match supply and demand for work. Albeit
in different ways, digital platforms use them to assign tasks, to monitor, evaluate and takedecisions for the people working through them. Such practices are often referred to as“algorithmic management”. While algorithmic management is used in a growing number ofways in the wider labour market, it is clearly inherent to digital labour platforms’ businessmodel. It creates efficiencies in the matching of supply and demand but has also a significant
impact on working conditions in platform work. Algorithmic management also conceals theexistence of subordination and control by the digital labour platform on the persons
performing the work. The potential for gender bias and discrimination in algorithmic
management could also amplify gender inequalities. Understanding how algorithms influenceor determine certain decisions (such as the access to future task opportunities or bonuses, theimposition of sanctions or the possible suspension or restriction of accounts) is paramount,given the implications for the income and working conditions of people working throughdigital labour platforms. Currently, however, there is insufficient transparency regarding suchautomated monitoring and decision-making systems and people lack efficient access toremedies in the face of decisions taken or supported by such systems. Algorithmic
management is a relatively new and – apart from EU data protection rules – largely
unregulated phenomenon in the platform economy that poses challenges to both workers andthe self-employed working through digital labour platforms.
Difficulties in enforcement and lack of traceability and transparency, including in crossborder situations, are also thought to exacerbate some instances of poor working conditions or
7
8
9
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De Groen W., et al. (2021).
PPMI (2021).
Ibid.
See accompanying impact assessment, Section 2.1. SWD(2021) 396.

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inadequate access to social protection. National authorities do not always have sufficient
access to data on digital labour platforms and people working through them, such as thenumber of persons performing platform work on a regular basis, their contractual or
employment status, or digital labour platforms’ terms and conditions. The problem oftraceability is especially relevant when platforms operate across borders, making it unclear
where platform work is performed and by whom. This, in turn, makes it difficult for national
authorities to enforce existing obligations, including in terms of social security contributions.
The general objective of the proposed Directive is to improve the working conditions andsocial rights of people working through platforms, including with the view to support theconditions for the sustainable growth of digital labour platforms in the European Union.
The specific objectives through which the general objective will be addressed are:(1)

to ensure that people working through platforms have – or can obtain – the correct
employment status in light of their actual relationship with the digital labour platform
and gain access to the applicable labour and social protection rights;(2)

to ensure fairness, transparency and accountability in algorithmic management in theplatform work context; and(3)

to enhance transparency, traceability and awareness of developments in platformwork and improve enforcement of the applicable rules for all people working throughplatforms, including those operating across borders.

The first specific objective will be attained by establishing a comprehensive framework to
tackle employment status misclassification in platform work. This framework includes
appropriate procedures to ensure correct determination of the employment status of people
performing platform work, in line with the principle of primacy of facts, as well as arebuttable presumption of employment relationship (including a reversal of the burden of
proof) for persons working through digital labour platforms that control certain elements ofthe performance of work. This legal presumption would apply in all legal and administrative
proceedings, including those launched by national authorities competent for enforcing labourand social protection rules, and can be rebutted by proving that there is no employment
relationship by reference to national definitions. This framework is expected to benefit boththe false and the genuine self-employed working through digital labour platforms. Those who,
as a result of correct determination of their employment status, will be recognised as workers
will enjoy improved working conditions – including health and safety, employment
protection, statutory or collectively bargained minimum wages and access to training
opportunities – and gain access to social protection according to national rules. Conversely,
genuine self-employed people working through platforms will indirectly benefit from moreautonomy and independence, as a result of digital labour platforms adapting their practices toavoid any risk of reclassification. Digital labour platforms will also gain from increased legal
certainty, including with respect to potential court challenges. Other businesses that competewith digital labour platforms by operating in the same sector will benefit from a level playing
field as regards the cost of social protection contributions. Member States will enjoy increased
revenues in the form of additional tax and social protection contributions.
The proposed Directive aims at attaining the second specific objective of ensuring fairness,transparency and accountability in algorithmic management by introducing new material
rights for people performing platform work. These include the right to transparency regarding
the use and functioning of automated monitoring and decision-making systems, which
specifies and complements existing rights in relation to the protection of personal data. The

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proposed Directive also aims at ensuring human monitoring of the impact of such automatedsystems on working conditions with a view to safeguarding basic workers’ rights and healthand safety at work. To ensure fairness and accountability of significant decisions taken or
supported by automated systems, the proposed Directive also includes establishingappropriate channels for discussing and requesting review of such decisions. With certain
exceptions, these provisions apply to all people working through platforms, including thegenuine self-employed. As regards workers, the proposed Directive also aims at fosteringsocial dialogue on algorithmic management systems by introducing collective rights regarding
information and consultation on substantial changes related to use of automated monitoringand decision-making systems. As a result, all people working through platforms and theirrepresentatives will enjoy better transparency and understanding of algorithmic management
practices as well as more effective access to remedies against automated decisions, leading to
improved working conditions. These rights will build on and extend existing safeguards inrespect of processing of personal data by automated decision-making systems laid down in the
General Data Protection Regulation as well as proposed obligations for providers and users ofartificial intelligence (AI) systems in terms of transparency and human oversight of certain AI
systems in the proposal for an AI Act (see more details below).
Finally, concrete measures are proposed to achieve the third objective of enhancing
transparency and traceability of platform work with a view to supporting competentauthorities in enforcing existing rights and obligations in relation to working conditions andsocial protection. This includes clarifying the obligation for digital labour platforms which areemployers to declare platform work to the competent authorities of the Member State where itis performed. The proposed Directive will also improve labour and social protection
authorities’ knowledge of which digital labour platforms are active in their Member State bygiving those authorities access to relevant basic information on the number of people working
through digital labour platforms, their employment status and their standard terms andconditions. These measures will help those authorities in ensuring compliance with labour
rights and in collecting social security contributions, and thus improve working conditions ofpeople performing platform work.
•

Consistency with existing policy provisions in the policy area

In order to prevent a race to the bottom in employment practices and social standards to thedetriment of workers, the EU has created a minimum floor of labour rights that apply toworkers across all Member States. The EU labour and social acquis sets minimum standards
through a number of key instruments.
Only workers who fall under the personal scope of such legal instruments benefit from theprotection they afford.11 Self-employed people, including those working through platforms,
fall outside the scope and typically do not enjoy these rights, making the worker status agateway to the EU labour and social acquis. (The only exception are the equal treatment
directives which also cover access to self-employment12, due to broader legal bases.)
Relevant legal instruments for employed people working through platforms include:

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Some instruments define the personal scope by reference to national definitions of ‘worker’ or‘employee’ while others do not include such reference. The CJEU has developed comprehensive caselaw defining the personal scope of those instruments
Directives 2000/43, 2000/78, 2006/54 and 2010/41.

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–

The Directive on transparent and predictable working conditions13 provides formeasures to protect working conditions of people who work in non-standard work
relationships. This includes rules on transparency, the right to information,
probationary periods, parallel employment, minimum predictability of work andmeasures for on-demand contracts. These minimum standards are particularly
relevant for people working through platforms, given their atypical workorganisation and patterns. However, while the Directive ensures transparency on
basic working conditions, the information duty on employers does not extend to theuse of algorithms in the workplace and how they affect individual workers.

–

The Directive on work-life balance for parents and carers14 lays down minimum
requirements related to parental, paternity and carers’ leave and flexible work
arrangements for parents or carers. It complements the Directive on safety andhealth at work of pregnant workers and workers who have recently given birthor are breastfeeding15, which provides for a minimum period of maternity leave,alongside other measures.

–

The Working Time Directive16 lays down minimum requirements for theorganisation of working time and defines concepts such as ‘working time’ and ‘rest
periods’. While the Court of Justice of the European Union (CJEU) has traditionallyinterpreted the concept of ‘working time’ as requiring the worker to be physicallypresent at a place determined by the employer, in recent cases the Court has extended
this concept in particular when a ‘stand-by’ time system is in place (i.e. where aworker is not required to remain at their workplace but shall remain available towork if called by the employer). In 2018, the Court made clear that ‘stand-by’ time,
during which the worker's opportunities to carry out other activities are significantly
restricted, shall be regarded as working time.17–

The Directive on temporary agency work 18 defines a general framework applicableto the working conditions of temporary agency workers. It lays down the principle ofnon-discrimination, regarding the essential conditions of work and of employment,
between temporary agency workers and workers who are recruited by the user
company. Due to the typically triangular contractual relationship of platform work,
this Directive can be of relevance for platform work. Depending on the businessmodel of a digital labour platform and on whether its customers are private
consumers or businesses, it might qualify as a temporary-work agency assigning its
workers to user companies. In some cases, the platform might be the user company
making use of the services of workers assigned by temporary-work agencies.

–

The Occupational Health and Safety (OSH) Framework Directive 19 lays down
the main principles for encouraging improvements in the health and safety at work. It
guarantees minimum safety and health requirements throughout the EU. The

13

Directive (EU) 2019/1152. Member States have until 1 August 2022 to transpose it.
Directive (EU) 2019/1158.
Directive 92/85/EEC.
Directive 2003/88/EC.
Judgment of the Court of 21 February 2018 in Ville de Nivelles v Rudy Matzak, C-518/15, ECLI:EU:C:2018:82; confirmed and elaborated in the judgments of 9 March 2021 in RJ v Stadt Offenbach
am Main, C-580/19, ECLI:EU:C:2021:183; and 9 March 2021 in -D.J. v Radiotelevizija Slovenija, C344/19, ECLI:EU:C:2021:182.
Directive 2008/104/EC.
Directive 89/391/EEC.

14
15
16
17

18
19

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Framework Directive is accompanied by further directives focusing on specificaspects of safety and health at work.
–

The Directive establishing a general framework for informing and consulting
employees20 plays a key role in promoting social dialogue by setting minimum
principles, definitions and arrangements for information and consultation of workers’
representatives at the company level within each Member State.

–

When adopted, the proposed Directive on adequate minimum wages21 will
establish a framework to improve the adequacy of minimum wages and to increase
the access of workers to minimum wage protection.

–

When adopted, the proposed Directive on pay transparency22 will strengthen theapplication of the principle of equal pay for equal work or work of equal value
between men and women.

In addition, regulations on the coordination of national social security systems apply toboth employed and self-employed people working through platforms in a cross-bordersituation23.
Finally, the Council Recommendation on access to social protection for workers and theself-employed24 recommends Member States to ensure that both workers and the selfemployed have access to effective and adequate social protection. The Recommendation
covers unemployment, sickness and health care, maternity and paternity, invalidity, old-age
and survivors’ benefits and benefits in respect of accidents at work and occupational diseases.
•

Consistency with other Union policies

Existing and proposed EU internal market and data protection instruments are relevant for
digital labour platforms’ operations and the people working through them. Still, not all
identified challenges in platform work are sufficiently addressed by those legal instruments.
While they tackle algorithmic management in certain respects, they do not specificallyaddress the perspective of workers, labour market specificities and collective labour rights.
Relevant EU internal market and data protection instruments include:
–

20
21
22
23
24
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The Regulation on promoting fairness and transparency for business users of online
intermediation services (or ‘Platform-to-Business Regulation’)25 aims at ensuringthat self-employed ‘business users’ of an online platform’s intermediation services
are treated in a transparent and fair way and that they have access to effective redressin the event of disputes. The relevant provisions focus, among others, ontransparency of terms and conditions for business users, procedural safeguards incase of the restriction, suspension and termination of accounts, transparency
regarding ranking, and complaint-handling mechanisms. These are linked toalgorithmic management, but the Regulation does not cover other key aspects, suchas transparency of automated monitoring and decision-making systems (other than
Directive 2002/14/EC.
COM(2020) 682 final.
COM(2021) 93 final.
Regulation (EC) No 883/2004 of 29 May 2004 and its implementing Regulation (EC) No 987/2009.
Council Recommendation of 8 November 2019 (2019/C 387/01).
Regulation (EU) 2019/1150.

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ranking), human monitoring of such systems and specific rights regarding the review
of significant decisions affecting working conditions. The Regulation does not apply
to persons in an employment relationship or to digital labour platforms that areconsidered, as a result of an overall assessment, as not providing ‘information society
services’, but for instance a transport service.
–

The General Data Protection Regulation (GDPR)26 lays down rules for theprotection of natural persons concerning the processing of their personal data. It
grants people working through platforms a range of rights regarding their personaldata, regardless of their employment status. Such rights include, in particular, theright not to be subject to a decision based solely on automated processing which
produces legal effects concerning the data subject or similarly significantly affects
them (with certain exceptions), as well as the right to transparency on the use of
automated decision-making. Where automated processing is permitted under the
exceptions, the data controller must implement suitable measures to safeguard thedata subject’s rights and freedoms and legitimate interests, at least the right to obtainhuman intervention on the part of the controller, to express their point of view and tocontest the decision. While these rights are particularly relevant for people working
through platforms subject to algorithmic management, recent court cases havehighlighted the limitations and difficulties that workers – and most notably persons
performing platform work – face when aiming to assert their data protection rights inthe context of algorithmic management.27 This concerns in particular the difficulty todraw the line between algorithmic decisions that do or do not affect workers in a
sufficiently ‘significant’ way. Moreover, while the GDPR grants individual rights tothe people affected, it does not encompass important collective aspects inherent inlabour law, including those related to the role of workers’ representatives,
information and consultation of workers and the role of labour inspectorates inenforcing labour rights. The legislator therefore provided for the possibility of more
specific rules to ensure the protection of workers’ personal data in the employment
context, including as regards the organisation of work (Article 88 GDPR).

–

When adopted, the proposed Artificial Intelligence Act28 will address risks linked tothe use of certain artificial intelligence (AI) systems. The proposed AI Act aims toensure that AI systems placed on the market and used in the EU are safe and respectfundamental rights, such as the principle of equal treatment. It tackles issues related
to development, deployment, use and regulatory oversight of AI systems andaddresses inherent challenges such as bias (including gender bias) and lack of
accountability, including by setting requirements for high-quality datasets, helping totackle the risk of discrimination. The proposed AI regulation lists AI systems used in
employment, worker management and access to self-employment that are to beconsidered as high-risk. It puts forward mandatory requirements that high-risk AI
systems must comply with, as well as obligations for providers and users of such
systems. The proposed AI Act provides specific requirements on transparency forcertain AI systems, and will ensure that digital labour platforms, as users of high-risk
AI systems, will have access to the information they need to use the system in a
lawful and responsible manner. Where digital labour platforms are providers of high26

Regulation (EU) 2016/679.
ECE, Jurisprudence of national courts in Europe on algorithmic management at the workplace(forthcoming).
COM(2021) 206 final.

27
28

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risk AI systems, they will need to test and document their systems appropriately.
Furthermore, the proposal for an AI Act imposes requirements on providers of AI
systems to enable human oversight and to issue instructions in this regard. By
ensuring transparency and traceability of high-risk AI systems, the AI Act aims tofacilitate the implementation of existing rules on the protection of fundamental
rights, whenever such AI systems are in use. Nonetheless, it does not take into
account the diversity of rules on working conditions in different Member States andsectors, and it does not provide safeguards in relation to the respect of working
conditions for the people directly affected by the use of the AI systems, such as
workers.
2.

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY•

Legal basis

The proposed Directive is based on Article 153(1)(b) of Treaty on the Functioning of theEuropean Union (TFEU), which empowers the Union to support and complement theactivities of the Member States with the objective to improve working conditions. In this area,
Article 153(2)(b) TFEU enables the European Parliament and the Council to adopt – inaccordance with the ordinary legislative procedure – directives setting minimum requirements
for gradual implementation, having regard to the conditions and technical rules obtaining ineach of the Member States. Such directives must avoid imposing administrative, financial andlegal constraints in a way which would hold back the creation and development of small andmedium-sized undertakings.
This legal basis allows the Union to set minimum standards regarding the working conditionsof people performing platform work where they are in an employment relationship and thusclassified as ‘workers’. The CJEU has ruled that the classification of a ‘self-employed person’
under national law does not prevent that person being classified as a worker within themeaning of EU law if their independence is merely notional, thereby disguising an
employment relationship.29 False self-employed people are thus also covered by EU labour
legislation based on Article 153 TFEU.
The proposed Directive is also based on Article 16(2) TFEU insofar as it addresses thesituation of persons performing platform work in relation to the protection of their personal
data processed by automated monitoring and decision-making systems. This Article
empowers the European Parliament and the Council to lay down rules relating to theprotection of individuals with regard to the processing of personal data.
•

Subsidiarity (for non-exclusive competence)

Flexibility and constant adaptation of business models are key features of the platform
economy, whose primary means of production are algorithms, data and clouds. As they are
not tied to any fixed assets and premises, digital labour platforms can easily move and operate
across borders, swiftly starting operations in certain markets, sometimes closing down forbusiness or regulatory reasons and re-opening in another country with laxer rules.
While Member States operate in one single market, they have taken different approaches onwhether or not to regulate platform work, and in what direction. More than 100 court
decisions and 15 administrative decisions dealing with the employment status of people
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CJEU, cases C-256/01, Allonby, and C-413/13, FNV Kunsten Informatie en Media.

8ENworking through platforms have been observed in the Member States, with varying outcomesbut predominantly in favour of reclassifying people working through platforms as workers.30
In addition to the legal uncertainty this entails for the digital labour platforms and for thoseworking through them, the high number of court cases points to difficulties in maintaining alevel playing field among Member States as well as between digital labour platforms andother businesses, and in avoiding downward pressure on labour standards and working
conditions. Certain digital labour platforms may engage in unfair commercial practices withrespect to other businesses, for example, by not complying with the same rules and operating
under the same conditions. Consequently, EU action is needed to ensure that the highly
mobile and fast-moving platform economy develops alongside the labour rights of people
working through platforms.
Digital labour platforms are often based in one country, while operating through people based
elsewhere. 59% of all people working through platforms in the EU engage with clients basedin another country.31 This adds complexity to contractual relationships. The working
conditions and social protection coverage of people performing cross-border platform work isequally uncertain and depends strongly on their employment status. National authorities (suchas labour inspectorates, social protection institutions and tax authorities) are often not awareof which digital labour platforms are active in their country, how many people are working
through them and under what employment status the work is performed. Risks of noncompliance with rules and obstacles to tackling undeclared work are higher in cross-bordersituations, in particular when online platform work is concerned. In this context, relevant
actions aimed at tackling the cross-border challenges of platform work, including notably thelack of data to allow for a better enforcement of rules, are best taken at EU level.
National action alone would not achieve the EU’s Treaty-based core objectives of promoting
sustainable economic growth and social progress, as Member States may hesitate to adopt
more stringent rules or to strictly enforce existing labour standards, while they compete with
one another to attract digital labour platforms’ investments.
Only an EU initiative can set common rules that apply to all digital labour platforms operatingin the EU, while also preventing fragmentation in the fast-developing single market for digitallabour platforms. This would ensure a level playing field in the area of working conditions
and algorithmic management between digital labour platforms operating in different Member
States. Hence, the specific EU added value lies in the establishment of minimum standards inthese areas which will foster upward convergence in employment and social outcomes acrossthe Union, and facilitate the development of the platform economy across the EU.
•

Proportionality

The proposed Directive provides for minimum standards, thus ensuring that the degree ofintervention will be kept to the minimum necessary in order to reach the objectives of the
proposal. Member States which have already more favourable provisions in place than those
put forward in the proposed Directive will not have to change or lower them. Member States
may also decide to go beyond the minimum standards set out in the proposed Directive.
The principle of proportionality is respected considering the size and nature of the identified
problems. For instance, the rebuttable presumption proposed to address the problem of
30
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ECE, Case Law on the Classification of Platform Workers: Cross-European Comparative Analysis andTentative Conclusions (2021). Available online.
PPMI (2021), section 7.1.

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misclassification of the employment status will only apply to digital labour platforms thatexert a certain level of control over the performance of work. Other digital labour platforms
will thus not be concerned by the presumption. Similarly the provisions on automatedmonitoring and decision-making systems do not go beyond what is necessary to achieve theobjectives of fairness, transparency and accountability in algorithmic management.
•

Choice of the instrument

ARTICLE 153(2)(B) TFEU IN COMBINATION WITH 153(1)(B) TFEU PROVIDES EXPLICITLY
THAT DIRECTIVES MAY BE USED FOR ESTABLISHING MINIMUM REQUIREMENTS
CONCERNING WORKING CONDITIONS TO BE IMPLEMENTED BY MEMBER STATES.
RULES BASED ON ARTICLE 16(2) TFEU MAY ALSO BE LAID DOWN IN DIRECTIVES.3.
RESULTS OF STAKEHOLDER CONSULTATIONS AND IMPACTASSESSMENTS•

Stakeholder consultations

In line with Article 154 TFEU, the Commission has carried out a two-stage consultation of
the social partners on possible EU action to improve working conditions in platform work. In
the first stage, between 24 February and 7 April 2021, the Commission consulted social
partners on the need for an initiative on platform work, and its possible direction.32 In thesecond stage, between 15 June and 15 September 2021, the Commission consulted social
partners on the content and legal instrument of the envisaged proposal.33
Both trade unions and employers’ organisations agreed with the overall challenges as
identified in the second-stage consultation document, but differed on the need for concrete
action at EU level.
Trade unions called for a Directive based on Article 153(2) TFEU providing for the rebuttablepresumption of an employment relationship with reversed burden of proof and a set of criteria
to verify the status. They maintained that such an instrument should apply both to online andon-location platforms. Trade unions also supported the introduction of new rights related tothe algorithmic management in the employment domain, and generally opposed a third status
for people working through platforms. They highlighted the need for social dialogue.
Employers’ organisations agreed that there are issues that should be tackled, such as regarding
working conditions, misclassification of employment status or access to information.
However, action should be taken at national level, on a case-by-case basis and within theframework of the different national social and industrial relations systems. Regarding
algorithmic management, they highlighted that the focus should be on efficient
implementation and enforcement of existing and upcoming legal instruments.
There was no agreement among social partners to enter into negotiations to conclude anagreement at Union level, as foreseen in Article 155 TFEU.
In addition, the Commission held a substantial number of exchanges with many stakeholders
to inform this initiative, including dedicated and bilateral meetings with platform companies,
platform workers’ associations, trade unions, Member States’ representatives, experts from
32
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Consultation Document, C(2020) 1127 final.
Consultation Document, C(2020) 4230 final, accompanied by Staff Working Document SWD(2021)
143 final.

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ENacademia and international organisations and representatives of civil society.34 On 20 and 21
September 2021, the Commission held two dedicated meetings with platform operators andrepresentatives of platform workers to hear their views on the possible directions for EU
action.
The European Parliament has called35 for a strong EU action to address employment status
misclassification, and improve transparency in the use of algorithms, including for workers’
representatives. The Council of Ministers of the EU36, the European Economic and Social
Committee37 and the Committee of the Regions38 have also called for specific action on
platform work.
•

Collection and use of expertise

The Commission contracted external experts to produce several studies gathering relevant
evidence, which was used to support the impact assessment and prepare this proposal:–“Study to support the impact assessment of an EU Initiative on improving theworking conditions in platform work” (2021) by PPMI.39–“Digital Labour Platforms in the EU: Mapping and Business Models” (2021) by
CEPS.40–“Study to gather evidence on the working conditions of platform workers” (2019) by
CEPS.41

The Commission also based its assessment on the reviews by the European Centre ofExpertise in the field of labour law, employment and labour market policies (ECE).
–“Thematic Review 2021 on Platform work” (2021) based on country articles for the
27 EU Member States.42–“Case Law on the Classification of Platform Workers: Cross-European Comparative
Analysis and Tentative Conclusions” (2021).43–“Jurisprudence of national Courts in Europe on algorithmic management at theworkplace” (2021).44

34

See Annex A.3.1 of the Impact Assessment, SWD(2021) 396.
European Parliament report on “fair working conditions, rights and social protection for platformworkers – new forms of employment linked to digital development.” (2019/2186(INI)). Available
online.
Council Conclusions “The Future of Work: the European Union promoting the ILO Centenary
Declaration”, October 2019; Available online. In December 2020, EU employment and social affairs
ministers held a debate on platform work where they acknowledged that platform work is aninternational phenomenon with a strong cross-border dimension, and that therefore there is a role for the
EU to address the related challenges.
EESC opinion: Fair work in the platform economy (Exploratory opinion at the request of the Germanpresidency). Available online.
CoR opinion: Platform work – local and regional regulatory challenges. Available online.
Available online.
Available online.
Available online.
Synthesis available online.
Available online.
Forthcoming.

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39
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43
44

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The Commission additionally drew on external expertise and used the following studies andreports to support the impact assessment:–

Eurofound reports: “Employment and Working Conditions of Selected Types ofPlatform Work” (2018).45–

JRC reports: “Platform Workers in Europe Evidence from the COLLEEM Survey”(2018),46 and “New evidence on platform workers in Europe. Results from thesecond COLLEEM survey” (2020).47–

ILO report: “The role of digital labour platforms in transforming the world of work”(2021).48

Moreover, the Commission’s assessment has also relied on its mapping of policies in Member
States, relevant academic literature and CJEU case-law.
•

Impact assessment

The Impact Assessment49 was discussed with the Regulatory Scrutiny Board (RSB) on
27 October 2021. The RSB issued a positive opinion with comments, which have beenaddressed by further clarifying the coherence with linked initiatives, explaining why and how
the issues related to algorithmic management are particularly relevant for the platform
economy and better reflecting the views of different categories of stakeholders, including
digital labour platforms and people working through them. The combination of measures put
forward in this proposal was assessed in the Impact Assessment as the most effective,
efficient and coherent. The quantitative and qualitative analysis of the preferred combinationof measures shows that a substantial improvement in the working conditions and access tosocial protection for people working through platforms is expected. Digital labour platforms
will also benefit from increased legal certainty and conditions for a sustainable growth, in linewith the EU’s social model. As a spillover effect, other businesses competing with digitallabour platforms will benefit from a newly levelled playing field.
As a result of actions to address the risk of misclassification, between 1.72 million and 4.1
million people are expected to be reclassified as workers (circa 2.35 million on-location and1.75 million online considering the higher estimation figures). This would grant them accessto the rights and protections of the national and EU labour acquis. People who currently earnbelow the minimum wage would enjoy increased annual earnings of up to EUR 484 million,
as statutory laws and/or industry-wide collective agreements would cover them as well. Thismeans an average annual increase in EUR 121 per worker, ranging from EUR 0 for thosealready earning above the minimum wage before reclassification to EUR 1 800 for thoseearning below it. In-work poverty and precariousness would thus decrease as a result of
reclassification and the resulting improved access to social protection. Hence, income stability
and predictability would improve. Up to 3.8 million people would receive confirmation of
their self-employment status and, as a result of actions by platforms aimed at relinquishing
control to avoid reclassification as employers, they would enjoy more autonomy andflexibility. New rights related to algorithmic management in platform work may lead to
45
46
47
48
49

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Available online.
Available online.
Available online.
Available online.
SWD(2021) 396.

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improved working conditions for over 28 million people (both workers and self-employed)
and greater transparency in the use of artificial intelligence (AI) at the workplace, withpositive spill-over effects for the wider market of AI systems. The initiative would also
improve transparency and traceability of platform work, including in cross-border situations,with positive effects for national authorities in terms of better enforcement of existing labourand fiscal rules, as well as improved collection of tax and social protection contributions. To
this end, Member States could benefit from up to EUR 4 billion in increased tax and social
protection contributions per year.
Actions to address the risk of misclassification could result in up to EUR 4.5 billion increasein costs per year for digital labour platforms. Businesses relying on them and consumers may
be faced with part of these costs, depending on how digital labour platforms decide to passthem onto third parties. New rights related to algorithmic management and the foreseenmeasures to improve enforcement, transparency and traceability imply negligible to low costs
for digital labour platforms. The initiative may negatively affect the flexibility enjoyed bypeople working through platforms. However, such flexibility, especially in terms of arranging
work schedules, may be only apparent already now, since actual working times depend on thereal-time demand for services, supply of workers, and other factors. It was not possible tomeaningfully quantify what this would entail in terms of change in full-time equivalents andpotential job losses, given the very high number of variables such calculation would entail(e.g. evolving national regulatory landscapes, shifts in platforms’ sources of investment,
reallocation of tasks from part-time false self-employed to full-time workers). For somepeople working through digital labour platforms currently earning above the minimum wage,
reclassification might lead to lower wages, as some digital labour platforms might offset
higher social protection costs by reducing salaries.
Other measures considered in the Impact Assessment included: non-binding guidelines on
how to deal with misclassification cases; a combination of a shift in the burden of proof with
out-of-court administrative procedures for dealing with the misclassification of theemployment status; non-binding guidelines on algorithmic management; algorithmic
management rights for workers only; data interoperability obligations for digital labour
platforms; setting up national registers to improve relevant data collection and keep track ofplatform work developments, including in cross border situations. They were overall
considered less efficient, less effective and less coherent vis-à-vis the stated objectives of theinitiative, as well as with the overarching values, aims, objectives and existing andforthcoming initiatives of the EU.
•

Regulatory fitness and simplification

The initiative includes different sets of measures, some of which aim at minimisingcompliance costs for micro, small and medium-sized enterprises (SME). While measures
addressing the risk of misclassification cannot be mitigated because they directly pertain to
fundamental workers’ rights, the administrative procedures required by the measures on
algorithmic management and on improving enforcement, traceability and transparency allow
for mitigations tailored to SMEs. Notably, these include longer deadlines to provide responses
for requests of review of algorithmic decisions and the reduction in the frequency of updating
relevant information.
•

Fundamental rights

The Charter of Fundamental Rights of the European Union protects a broad range of rights inthe employment context. These include the workers’ right to fair and just working conditions

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(Article 31) and to information and consultation within the undertaking (Article 27) , as wellas the right to the protection of personal data (Article 8) and the freedom to conduct abusiness (Article 16). The proposed Directive promotes the rights contained in the Charter inthe platform work context by addressing the employment status misclassification and by
putting forward specific provisions regarding the use of automated monitoring and decisionmaking systems in platform work. It also strengthens information and consultation rights forplatform workers and their representatives on decisions likely to lead to the introduction of or
substantial changes in the use of automated monitoring and decision-making systems.
4.

BUDGETARY IMPLICATIONS

The proposal does not require additional resources from the European Union's budget.
5.

OTHER ELEMENTS•

Implementation plans and monitoring, evaluation and reporting arrangements

Member States must transpose the Directive two years after it enters into force andcommunicate to the Commission the national execution measures via the MNE-Database. Inline with Article 153(3) TFEU, they may entrust the social partners with the implementationof the Directive. The Commission stands ready to provide technical support to Member States
to implement the Directive.
The Commission will review the implementation of the Directive five years after it enters into
force and propose, where appropriate, legislative amendments. Progress towards achieving theobjectives of the initiative will be monitored by a series of core indicators (listed in the Impact
Assessment Report). The monitoring framework will be subject to further adjustment
according to the final legal and implementation requirements and timeline.
•

Explanatory documents (for directives)

The proposed Directive touches on labour law, specifies and complements data protection
rules and contains both substantive and procedural rules. Member States might use different
legal instruments to transpose it. It is therefore justified that Member States accompany the
notification of their transposition measures with one or more documents explaining therelationship between the components of the Directive and the corresponding parts of nationaltransposition instruments, in accordance with the Joint Political Declaration of 28 September
2011 of Member States and the Commission on explanatory documents.50•

Detailed explanation of the specific provisions of the proposal

Chapter I – General provisions
Article 1 – Subject matter and scopeThis provision establishes the purpose of the Directive, namely to improve the working
conditions of persons performing platform work by ensuring correct determination of theiremployment status, by promoting transparency, fairness and accountability in algorithmic
management in platform work and by improving transparency in platform work, including incross-border situations.
This article also defines the personal scope of the Directive, which includes persons
performing platform work in the Union, irrespective of their employment status, albeit to a
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OJ C 369, 17.12.2011, p. 14.

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ENvarious extent depending on the provisions concerned. As a general rule, the Directive covers
persons who have, or who based on an assessment of facts may be deemed to have, an
employment contract or 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 CJEU.
This approach is meant to include situations where the employment status of the person
performing platform work is not clear, including instances of false self-employment, so as toallow correct determination of that status.
However, the provisions of the chapter on algorithmic management, which are related to theprocessing of personal data and thus covered by the legal basis of Article 16(2) TFEU, also
apply to persons performing platform work in the Union who do not have an employment
relationship, i.e. the genuine self-employed and those with another employment status that
may exist in some Member States.
The digital labour platforms concerned by this proposal are those which organise platformwork in the Union, irrespective of their place of establishment and irrespective of the law
otherwise applicable. The decisive element for the territorial applicability is thus the place
where platform work is performed and not the place where the digital labour platform isestablished or where the service to the recipient is offered or provided.
Article 2 – Definitions
This provision defines a number of terms and concepts necessary to interpret the provisions of
the Directive, including ‘digital labour platform’, ‘platform work’ and ‘representative’. It
distinguishes between ‘persons performing platform work’ – irrespective of their employment
status – and ‘platform workers’ – who are in an employment relationship.
Chapter II – Employment status
Article 3 – Correct determination of the employment status
This article requires Member States to have in place appropriate procedures to verify andensure the correct determination of the employment status of persons performing platform
work, so as to allow persons that are possibly misclassified as self-employed (or any otherstatus) to ascertain whether they should be considered to be in an employment relationship –in line with national definitions – and, if so, to be reclassified as workers. This will ensure that
false self-employed have the possibility to obtain access to working conditions laid down inUnion or national law in line with their correct employment status.
The provision also clarifies that the correct determination of the employment status should bebased on the principle of the primacy of facts, i.e. guided primarily by the facts relating to theactual performance of work and the remuneration, taking into account the use of algorithms inplatform work, and not by how the relationship is defined in the contract. Where an
employment relationship exists, the procedures in place should also clearly identify who is to
assume the obligations of the employer.
Article 4 – Legal presumption
This provision establishes the legal presumption that an employment relationship exists
between the digital labour platform and a person performing platform work, if the digitallabour platform controls certain elements of the performance of work. Member States are
required to establish a framework to ensure that the legal presumption applies in all relevant
administrative and legal proceedings and that enforcement authorities, such as labour
inspectorates or social protection bodies, can also rely on that presumption.

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The article defines criteria that indicate that the digital labour platform controls theperformance of work. The fulfillment of at least two indicators should trigger the applicationof the presumption.
Member States are also required to ensure effective implementation of the legal presumption
through supporting measures, such as disseminating information to the public, developing
guidance and strengthening controls and field inspections, which are essential to ensure legal
certainty and transparency for all parties involved.
The provision also clarifies that the legal presumption should not have retroactive effects, i.e.
should not apply to factual situations before the transposition deadline of the Directive.
Article 5 – Possibility to rebut the legal presumption
This provision ensures the possibility to rebut the legal presumption in relevant legal andadministrative proceedings, i.e. to prove that the contractual relationship at stake is in fact notan ‘employment relationship’ in line with the definition in force in the Member State
concerned. The burden of proof that there is no employment relationship will be on the digitallabour platform.
Chapter III – Algorithmic management
Article 6 – Transparency on and use of automated monitoring and decision-making systems
This provision requires digital labour platforms to inform platform workers of the use and key
features of automated monitoring systems – which are used to monitor, supervise or evaluate
the work performance of platform workers through electronic means – and automateddecision making systems – which are used to take or support decisions that significantly affectplatform workers’ working conditions.
The information to be provided includes the categories of actions monitored, supervised andevaluated (including by clients) and the main parameters that such systems take into accountfor automated decisions. The article specifies in what form and at which point in time thisinformation is to be provided and that it should also be made available to labour authorities
and platform workers’ representatives upon request.
In addition, the article provides that digital labour platforms must not process any personal
data concerning platform workers that are not intrinsically connected to and strictly necessary
for the performance of their contract. This includes data on private conversations, on thehealth, psychological or emotional state of the platform worker and any data while theplatform worker is not offering or performing platform work.
Article 7 – Human monitoring of automated systems
This provision requires digital labour platforms to regularly monitor and evaluate the impact
of individual decisions taken or supported by automated monitoring and decision-making
systems on working conditions. In particular, digital labour platforms will have to evaluate therisks of automated monitoring and decision-making systems to the safety and health ofplatform workers and ensure that such systems do not in any manner put undue pressure on
platform workers or otherwise put at risk the physical and mental health of platform workers.
The article also stipulates the need for digital labour platforms to ensure sufficient humanresources for this monitoring of automated systems. The persons charged by the digital labour
platform with that task must have the necessary competence, training and authority to exercise
their function and must be protected from negative consequences (such as dismissal or othersanctions) for overriding automated decisions.

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Article 8 – Human review of significant decisions
This provision establishes the right for platform workers to obtain an explanation from thedigital labour platform for a decision taken or supported by automated systems thatsignificantly affects their working conditions. For that purpose the digital labour platform
should provide the possibility for them to discuss and clarify the facts, circumstances andreasons for such decisions with a human contact person at the digital labour platform.
In addition, the article requires digital labour platforms to provide a written statement of
reasons for any decision to restrict, suspend or terminate the platform worker’s account, torefuse the remuneration for work performed by the platform worker, or affecting the platformworker’s contractual status.
Where the explanation obtained is not satisfactory or where platform workers consider theirrights infringed, they also have the right to request the digital labour platform to review thedecision and to obtain a substantiated reply within a week. Digital labour platforms have torectify the decision without delay or, if that is not possible anymore, to provide adequate
compensation, if the decision infringes the platform worker’s rights.
Article 9 – Information and consultation
This provision requires digital labour platforms to inform and consult platform workers’
representatives or, if there are no representatives, the platform workers themselves on
algorithmic management decisions, for instance if they intend to introduce new automatedmonitoring or decision-making systems or make substantial changes to those systems. The
aim of this provision is to promote social dialogue on algorithmic management. Given thecomplexity of the subject matter, the representatives or the platform workers concerned canbe assisted by an expert of their choice. This article is without prejudice to existing
information and consultation requirements under Directive 2002/14/EC.
Article 10 – Persons performing platform work who do not have an employment relationshipThis provision ensures that the provisions on transparency, human monitoring and review of
Articles 6, 7 and 8 – which relate to the processing of personal data by automated systems –also apply to persons performing platform work who do not have an employment contract or
employment relationship, i.e. the genuine self-employed. This does not include the provisions
on health and safety at work, which are specific to workers.
This is without prejudice to the provisions of the Platforms-to-Business Regulation(2019/1150). Its provisions prevail if they cover specific aspects of the Directive in respect ofself-employed ‘business users’ within the meaning of the Regulation. Article 8 does not apply
to ‘business users’ at all.
Chapter IV – Transparency on platform work
Article 11 – Declaration of platform work
This provision clarifies that digital labour platforms which are employers have to declare
work performed by platform workers to the competent labour and social protection authoritiesof the Member State in which the work is performed and to share relevant data with thoseauthorities, in accordance with national rules and procedures. This clarification is particularly
relevant for digital labour platforms which are established in another country than the one
where platform work is performed.
Article 12 – Access to relevant information on platform work

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This provision requires digital labour platforms to make certain information accessible tolabour, social protection and other relevant authorities ensuring compliance with legal
obligations and the representatives of persons performing platform work. This information
includes the number of persons performing platform work through the digital labour platform
concerned on a regular basis and their contractual or employment status, as well as the generalterms and conditions applicable to those contractual relationships. The information should be
regularly updated and further clarifications and details should be provided at request.
Chapter V – Remedies and enforcement
Article 13 – Right to redressThis provision requires Member States to provide access to effective and impartial dispute
resolution and a right to redress and, where appropriate, adequate compensation, forinfringements of the rights established under the Directive.
Article 14 – Procedures on behalf or in support of persons performing platform work
This provision enables representatives of persons performing platform work or other legal
entities which have a legitimate interest in defending the rights of persons performing
platform work, to engage in any judicial or administrative procedure to enforce any of therights or obligations under this proposal. Such entities should have the right to act on behalf orin support of a person performing platform work, with the person’s approval, in suchprocedures and also to bring claims on behalf of more than one person performing platformwork. This aims at overcoming the procedural and cost-related obstacles that persons
performing platform work face in particular when seeking to have their employment status
correctly determined.
Article 15 – Communication channels for persons performing platform work
This article requires digital labour platforms to create the possibility for persons performing
platform work to contact and communicate with each other, and to be contacted byrepresentatives of persons performing platform work, through the digital labour platforms’
digital infrastructure or similarly effective means. The aim is to ensure the possibililty for
persons performing platform work to get to know and communicate with each other, also inview of defending their interests, despite the lack of a common place of work.
Article 16 – Access to evidenceThis article ensures that national courts or other competent authorities can order the digitallabour platform to disclose relevant evidence lying in their control, during proceedings
concerning a claim regarding correct determination of the employment status of persons
performing platform work. This includes evidence containing confidential information – suchas relevant data on algorithms – where they consider it relevant to the claim, provided that
effective measures are in place to protect this information.
Article 17 – Protection against adverse treatment or consequences
This provision requires Member States to provide persons performing platform work
complaining about breaches of provisions adopted pursuant to the Directive with adequate
judicial protection against any adverse treatment or consequences by the digital labour
platform.
Article 18 – Protection from dismissal

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If a person performing platform work considers that he or she has been dismissed or subject toequivalent detriment (such as the deactivation of the account) on the ground that he or she
exercises rights established in the Directive, and is able to establish facts which support thisassertion, this provision places on the digital labour platform the burden to prove that thedismissal or alleged detrimental treatment was based on other objective reasons.
Article 19 – Supervision and penalties
This provision clarifies that the procedural framework for the enforcement of GDPR rules, inparticular as regards supervision, cooperation and consistency mechanisms, remedies, liability
and penalties applies to the provisions on algorithmic management which are based on Article
16 TFEU and that the data protection supervisory authorities are competent to monitor theapplication of those provisions, including the power to impose administrative fines.
The provision requires labour and social protection authorities and data protection supervisory
authorities to cooperate, including by exchanging relevant information.
It also requires Member States to provide for effective, proportionate and dissuasive penalties
for breaches of the obligations under this Directive, and to make sure that they are applied.
Chapter VI – Final provisions
Article 20 – More favourable provisions
This provision allows Member States to provide a higher level of protection for workers thanthat guaranteed by the Directive, and preventing its use to lower existing standards in thesame fields. This applies to self-employed persons only insofar as more favourable rules arecompatible with internal market rules.
Article 21 – Implementation
This provision establishes the maximum period that Member States have in order to transpose
the Directive into national law and communicate the relevant texts to the Commission. This
period is set at two years after the date of entry into force. Moreover, it highlights that
Member States may entrust the social partners with the implementation of the Directive,
where social partners request to do so and as long as the Member States take all the necessary
steps to ensure that they can at all times guarantee the results sought under this Directive.
Article 22 – Review by the Commission
This is a standard provision requiring the Commission to review the implementation of thisDirective five years after its entry into force, and to assess the need to revise and update the
Directive.
Articles 23 and 24 – Entry into force and Addressees
These provisions stipulate that the Directive is to enter into force on the twentieth day
following its publication in the Official Journal and is addressed to the Member States.

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2021/0414 (COD)
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 Committee1,
Having regard to the opinion of the Committee of the Regions2,
Acting in accordance with the ordinary legislative procedure,
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 thesustainable development of Europe based on a highly competitive social market
economy, aiming at full employment and social progress.

(2)This Directive respects fundamental rights and observes the principles recognised inparticular by the Charter of Fundamental Rights of the European Union (‘theCharter’). In particular, Article 31 of 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 and consultation within theundertaking. Article 8 of the Charter provides that everyone has the right to theprotection of personal data concerning him or her. Article 16 of the Charter recognises
the freedom to conduct a business.

(3)

Principle No 5 of the European Pillar of Social Rights, proclaimed at Gothenburg on
17 November 20173, provides that, regardless of the type and duration of theemployment relationship, workers have the right to fair and equal treatment regarding
working conditions, access to social protection and training; that, in accordance withlegislation and collective agreements, the necessary flexibility for employers to adapt
swiftly to changes in the economic context is to be ensured; and that innovative formsof work that ensure quality working conditions are to be fostered, that1

OJ C , , p.
OJ C , , p. .
Interinstitutional Proclamation on the European Pillar of Social Rights (OJ C 428, 13.12.2017, p. 10).

2
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entrepreneurship and self-employment are to be encouraged and that occupational
mobility is to be facilitated. The Porto Social Summit of May 2021 welcomed theAction Plan accompanying the Social Pillar4 as guidance for its implementation.

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(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 and 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 digitallabour platforms that provide a service to their customers. By means of the algorithms,
the digital labour platforms may control, to a lesser or greater extent – depending on
their business model – the performance of the work, its remuneration and therelationship between their customers and the persons performing the work. Platformwork can be performed exclusively online through electronic tools (‘online platform
work’) or in a hybrid way combining an online communication process with asubsequent activity in the physical world (‘on-location platform work’). Many of theexisting digital labour platforms are international business actors deploying theiractivities and business models in several Member States or across borders.

(6)

Platform work can provide opportunities for accessing the labour market more easily,
gaining additional income through a secondary activity or enjoying some flexibility inthe organisation of working time. At the same time, platform work brings challenges,
as it can blur the boundaries between employment relationship and self-employed
activity, and the responsibilities of employers and workers. Misclassification of theemployment status has consequences for the persons affected, as it is likely to restrict
access to existing labour and social rights. It also leads to an uneven playing field withrespect to businesses that classify their workers correctly, and it has implications for
Member States’ industrial relations systems, their tax base and the coverage andsustainability of their social protection systems. While such challenges are broader
than platform work, they are particularly acute and pressing in the platform economy.

(7)

Court cases in several Member States have shown the persistence of misclassificationof the employment status in certain types of platform work, in particular in sectors
where digital labour platforms exert a certain degree of control over the remunerationand performance of work. 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 their main business activities and unilaterally
determining the level of remuneration. Those courts have therefore reclassified
purportedly self-employed persons as workers employed by the platforms. However,national case law has resulted in diverse outcomes and digital labour platforms haveadapted their business model in various ways, thus increasing the lack of legal
certainty over the employment status.

(8)

Automated monitoring and 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

4

Communication from the Commission to the European Parliament, the Council, the European
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.

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ENsystems as a standard way of organising and managing platform work through theirinfrastructure. Persons performing platform work subject to such algorithmic
management often lack information on how the algorithms 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 thisinformation either. Moreover, persons performing platform work often do not know
the reasons for decisions taken or supported by automated systems and lack thepossibility 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 nothave easy access to data on digital labour platforms, including the number of persons
performing platform work, their employment status, and their working conditions.
This complicates the enforcement of applicable rules, including in respect of labour
law and social protection.

(10)

A body of legal instruments provides for minimum standards in working conditions
and labour rights across the Union. This includes in particular Directive (EU)2019/1152 of the European Parliament and of the Council5 on transparent andpredictable working conditions, Directive 2003/88/EC of the European Parliamentand of the Council6 on working time, Directive 2008/104/EC of the European
Parliament and of the Council7 on temporary agency work, 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, information andconsultation of workers, among others. While those instruments provide a level ofprotection to workers, they do not apply to the genuine self-employed.

(11)

Council Recommendation 2019/C 387/018 on access to social protection for workers
and the self-employed recommends Member States to take measures ensuring formal
and effective coverage, adequacy and transparency of social protection schemes for all
workers and self-employed. Member States currently have varying degrees ofproviding social protection to the self-employed.

(12)

Regulation (EU) 2016/679 of the European Parliament and of the Council9 (‘General
Data Protection Regulation’) ensures the protection of natural persons with regard to
the processing of personal data, and in particular provides certain rights andobligations as well as safeguards concerning lawful, fair and transparent processing of
personal data, including with regard to automated individual decision-making.

5

Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 2019 ontransparent and predictable working conditions in the European Union (OJ L 186, 11.7.2019, p. 105).
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 selfemployed (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 theprotection of natural persons with regard to the processing of personal data and on the free movement ofsuch data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016,p. 1).

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Regulation (EU) 2019/1150 of the European Parliament and of the Council10 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
intelligence systems11.
(13)

While existing or proposed Union legal acts provide for certain general safeguards,
challenges in platform work require some further specific measures. In order toadequately frame the development of platform work in a sustainable manner, it isnecessary for the Union to set new minimum standards in working conditions toaddress the challenges arising from platform work. Persons performing platform workin the Union should be provided with a number of minimum rights aiming at ensuringcorrect determination of their employment status, at promoting transparency, fairness
and accountability in algorithmic management, and at improving transparency inplatform work, including in cross-border situations. This should be done with a view
to improving legal certainty, creating a level playing field between digital labour
platforms and offline providers of services and supporting the sustainable growth ofdigital labour platforms in the Union.

(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,
on the improvement of working conditions in platform work. There was no agreement
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 from academia, Member States and international organisations andrepresentatives of civil society.

(16)This Directive should apply to persons performing platform work in the Union who
have, or who based on an assessment of facts may be deemed to have, an employment
contract or employment relationship as defined by the law, collective agreements orpractice in force in the Member States, with consideration to the case-law of the Courtof Justice of the European Union. This should include situations where theemployment status of the person performing platform work is not clear, so as to allow
correct determination of that status. The provisions on algorithmic management which
are related to the processing of personal data should also apply to genuine selfemployed and other persons performing platform work in the Union who do not havean employment relationship.

(17)

This Directive should apply to all digital labour platforms, irrespective of their placeof establishment and irrespective of the law otherwise applicable, provided that theplatform work organised through that digital labour platform is performed in theUnion. A targeted set of mandatory rules should be established at Union level toensure minimum rights on working conditions in platform work.

10

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.

11

EN

23

EN

EN

(18)

Digital labour platforms differ from other online platforms in that they organise work
performed by individuals at the request, one-off or repeated, of the recipient of aservice provided by the platform. Organising work performed by individuals should
imply at a minimum a significant role in matching the demand for the service with the
supply of labour by an individual who has a contractual relationship with the digitallabour platform and who is available to perform a specific task, and can include otheractivities such as processing payments. Online platforms which do not organise thework performed by individuals but merely provide the means by which service
providers can reach the end-user, for instance by advertising offers or requests forservices 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. It should be limited to providers of a service for which theorganisation of work performed by the individual, such as transport of persons or
goods or cleaning, constitutes a necessary and essential and not merely a minor andpurely ancillary component.

(19)

To combat false self-employment in platform work and to facilitate the correct
determination of the employment status, Member States should have appropriate
procedures in place to prevent and address misclassification of the employment statusof persons performing platform work. The aim of those procedures should be toascertain the existence of an employment relationship as defined by national law,collective agreements or practice with consideration to the case-law of the Court ofJustice, and, where such employment relationship exists, to ensure full compliancewith Union law applicable to workers as well as national labour law, collective
agreements and social protection rules. Where self-employment or an intermediate
employment status – as defined at national level – is the correct employment status,
rights and obligations pursuant to that status should apply.

(20)

In its case law, the Court of Justice has established criteria for determining the statusof a worker12. The interpretation by the Court of Justice of those criteria should betaken into account in the implementation of this Directive. The abuse of the status ofself-employed persons, as defined in national law, either at national level or in crossborder situations, is a form of falsely declared work that is frequently associated withundeclared work. False self-employment occurs when a person is declared to be selfemployed while fulfilling the conditions characteristic of an employment relationship,in order to avoid certain legal or fiscal obligations.

(21)

The principle of primacy of facts, meaning that the determination of the existence ofan employment relationship should be guided primarily by the facts relating to theactual performance of work, including its remuneration, and not by the parties’description of the relationship, in accordance with the 2006 Employment Relationship
Recommendation (No 198) of the International Labour Organisation, is particularly

12

Judgments of the Court of Justice of 3 July 1986, Deborah Lawrie-Blum v Land Baden-Württemberg,
C-66/85, ECLI:EU:C:1986:284; 14 October 2010, Union Syndicale Solidaires Isère 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 der Ruhrlandklinik 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 order of the
Court of Justice of 22 April 2020, B v Yodel Delivery Network Ltd, C-692/19, ECLI:EU:C:2020:288.

24

ENrelevant in the case of platform work, where contractual conditions are often
unilaterally determined by one party.

EN

(22)

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

(23)

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

(24)

When digital labour platforms control certain elements of the performance of work,
they act like employers in an employment relationship. Direction and control, or legal
subordination, is an essential element of the definition of an employment relationshipin the Member States and in the case-law of the Court of Justice. Therefore contractual
relationships in which digital labour platforms exert a certain level of control overcertain elements of the performance of work 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. As a result, that person should be classified as aworker having all the rights and obligations in accordance with that status, as laid
down in national and Union law, collective agreements and practice. The legal
presumption should apply in all relevant administrative and legal proceedings andshould benefit the person performing platform work. Authorities in charge of verifying
the compliance with or enforcing relevant legislation, such as labour inspectorates,social protection bodies or tax authorities, should also be able to rely on that
presumption. Member States should put in place a national framework to reduce
litigation and increase legal certainty.

(25)

Criteria indicating that a digital labour platform controls the performance of work
should be included in the Directive in order to make the legal presumption operationaland facilitate the enforcement of workers’ rights. Those criteria should be inspired byUnion and national case law and take into account national concepts of theemployment relationship. The criteria should include concrete elements showing thatthe digital labour platform, for instance, determines in practice and not merely
recommends the working conditions or the remuneration or both, gives instructions on
how the work is to be performed or prevents the person performing platform workfrom developing business contacts with potential clients. In order for it to be effective
in practice, two criteria should be always fulfilled to trigger the application of thepresumption,. At the same time, the criteria should not cover situations where thepersons performing platform work are genuine self-employed. Genuine self-employedpersons are themselves responsible vis-à-vis their customers for how they performtheir work and the quality of their outputs. The freedom to choose working hours or
periods of absence, to refuse tasks, to use subcontractors or substitutes or to work for
any third party is characteristic of genuine self-employment. Therefore, de facto
restricting such discretions by a number of conditions or through a system ofsanctions, should also be considered as an element of controlling the performance ofwork. Closely supervising the performance of work or thoroughly verifying the qualityof the results of that work, including through electronic means, which does not merely

25

ENconsist in using reviews or ratings by the recipients of the service, should also be
considered as an element of controlling the performance of work. At the same time,
digital labour platforms should be able to design their technical interfaces in a way toensure good consumer experience. Measures or rules which are required by law or
which are necessary to safeguard the health and safety of the recipients of the service
should not be understood as controlling the performance of work.

EN

(26)

Effective implementation of the legal presumption through appropriate measures, suchas disseminating information to the public, developing guidance and strengthening
controls and field inspections is essential to ensure legal certainty and transparency for
all parties involved. These measures should take into account the specific situation ofstart-ups to support the entrepreneurial potential and the conditions for the sustainablegrowth of digital labour platforms in the Union.

(27)

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 the period starting from that date, including for contractual relationships
entered into before and still ongoing on that date. Claims relating to the possible
existence of an employment relationship before that date and resulting rights andobligations until that date should therefore be assessed only on the basis of nationallaw and Union law predating this Directive.

(28)

The relationship between a person performing platform work and a digital labour
platform may not meet the requirements of an employment relationship in accordancewith the definition laid down in the law, collective agreements or practice in force ofthe respective Member State with consideration to the case-law of the Court of Justice,even though the digital labour platform controls the performance of work on a given
aspect. Member States should ensure the possibility to rebut the legal presumption inlegal or administrative proceedings or both by proving, on the basis of theaforementioned definition, that the relationship in question is not an employment
relationship. The shift in the burden of proof to digital labour platforms is justified by
the fact that they have a complete overview of all factual elements determining therelationship, in particular the algorithms through which they manage their operations.
Legal proceedings and administrative proceedings initiated by the digital labour
platforms in order to rebut the legal presumption should not have a suspensive effecton the application of the legal presumption. A successful rebuttal of the presumptionin administrative proceedings should not preclude the application of the presumption
in subsequent judicial proceedings. When the person performing platform work who isthe subject of the 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 the platform in respect of that person. Member States should
provide the necessary guidance for procedures to rebut the legal presumption.

(29)

While Regulation (EU) 2016/679 establishes the general framework for the protectionof natural persons with regard to the processing of personal data, it is necessary to lay
down rules addressing the concerns that are specific in the processing of personal datain the context of platform work. This Directive provides for more specific rules in thecontext of platform work, including to ensure the protection of the rights and freedoms
in respect of the processing of employees' personal data within the meaning of Article
88 of Regulation (EU) 2016/679. In this context, terms relating to the protection of26

ENpersonal data in this Directive should be understood in light of the definitions set out
in Regulation (EU) 2016/679.

EN

(30)

In addition to rights and obligations provided in this Directive, rights and obligations
provided in Regulation (EU) 2016/679 continue to apply when personal data areprocessed. Articles 13, 14 and 15 of Regulation (EU) 2016/679 require data controllers
to ensure transparency towards data subjects on the collection and processing of
personal data. Moreover, Article 22(1) of Regulation (EU) 2016/679 provides for thedata subjects’ right not to be subject to a decision based solely on automatedprocessing, including profiling, which produces legal effects concerning him or her orsimilarly significantly affects him or her, subject to the exceptions provided for inparagraph 2 of that article. Those obligations apply also to digital labour platforms.

(31)This Directive is without prejudice to Articles 13, 14, 15 and 22 of Regulation (EU)2016/679, except for Articles 13(2)(f), 14(2)(g) and 15(1)(h) thereof, in relation towhich Article 6 of this Directive provides for more specific rules in the context of
platform work, including to ensure the protection of the rights and freedoms in respectof the processing of employees' personal data within the meaning of Article 88 ofRegulation (EU) 2016/679.

(32)

Digital labour platforms should be subject to transparency obligations in relation toautomated monitoring and decision-making systems that are used to monitor,
supervise or evaluate the work performance through electronic means; and automateddecision-making systems which are used to take or support decisions that significantly
affect working conditions, including access of persons performing platform work towork assignments, their earnings, their occupational safety and health, their working
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 aresupported by automated systems. It should also be specified which kind of information
should be provided to persons performing platform work regarding such automatedsystems, as well as in which form and when it should be provided. The obligation of
the controller under Articles 13, 14 and 15 of Regulation (EU) 2016/679 to provide thedata subject with certain information in relation to the processing of personal data
concerning the data subject as well as with access to such data should continue toapply in the context of platform work. Information on automated monitoring anddecision-making systems should also be provided to representatives of persons
performing platform work and to national labour authorities at their request, in order toenable them to exercise their functions.

(33)

Digital labour platforms should not be required to disclose the detailed functioning of
their automated monitoring and decision-making systems, including algorithms, orother detailed data that contains commercial secrets or is protected by intellectual
property rights. However, the result of those considerations should not be a refusal toprovide all the information required by this Directive.

(34)

Articles 5 and 6 of Regulation (EU) 2016/679 require that personal data are processedin a lawful, fair and transparent manner. Digital labour platforms should therefore not
be allowed to process any personal data concerning persons performing platform workthat are not intrinsically connected to and strictly necessary for the performance of thecontract between those persons and the digital labour platform. Article 6(5) of thisDirective provides for more specific rules in the context of platform work, including to27

ENensure the protection of the rights and freedoms in respect of the processing of
employees' personal data within the meaning of Article 88 of Regulation (EU)2016/679.

EN

(35)

Digital labour platforms make extensive use of automated monitoring and decisionmaking systems in managing their human resources. Monitoring by electronic means
can be intrusive and decisions taken or supported by such systems directly affect thepersons performing platform work, who might not have a direct contact with a humanmanager or supervisor. Digital labour platforms should therefore regularly monitor
and evaluate the impact of individual decisions taken or supported by automatedmonitoring and 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 thenecessary competence, training and authority to exercise that function and should beprotected from dismissal, disciplinary measures or other adverse treatment foroverriding automated decisions or suggestions for decisions. In addition to obligations
under Article 22 of Regulation (EU) 2016/679, Article 7(1) and (3) of this Directive
provides for distinct obligations of digital labour platforms in relation to humanmonitoring of the impact of individual decisions taken or supported by automatedsystems, which apply as specific rules in the context of platform work, including toensure the protection of the rights and freedoms in respect of the processing of
employees' personal data within the meaning of Article 88 of Regulation (EU)2016/679.

(36)

Article 22(3) of Regulation (EU) 2016/679 requires data controllers to implement
suitable measures to safeguard data subjects’ rights and freedoms and legitimate
interests in cases where the latter are subject to decisions based solely on automatedprocessing. That provision requires, as a minimum, the data subject’s right to obtainhuman intervention on the part of the controller, to express his or her point of viewand to contest the decision. Those requirements apply also to digital labour platforms.
Article 8 of this Directive provides for more specific rules in the context of platform
work, including to ensure the protection of the rights and freedoms in respect of theprocessing of employees' personal data within the meaning of Article 88 of Regulation(EU) 2016/679.

(37)

In that context, persons performing platform work should have the right to obtain an
explanation from the digital labour platform for a decision, the lack of decision or a setof decisions taken or supported by automated systems that significantly affect theirworking conditions. For that purpose the digital labour platform should provide thepossibility for them to discuss and clarify the facts, circumstances and reasons for suchdecisions with a human contact person at the digital labour platform. In addition,
digital labour platforms should provide the person performing platform work with awritten statement of reasons for any decision to restrict, suspend or terminate that
person’s account, to refuse the remuneration for work performed by that person, or
affecting his or her contractual status, as such decisions are likely to have 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, they should also
have the right to request the digital labour platform to review the decision and toobtain a substantiated reply within a reasonable period of time. Where such decisions
infringe those persons’ rights, such as labour rights or the right to non-discrimination,

28

ENthe digital labour platform should rectify such decisions without delay or, where that is
not possible, provide adequate compensation.
(38)

Council Directive 89/391/EEC13 introduces measures to encourage improvements inthe safety and health of workers at work, including the obligation for employers toassess the occupational health and safety risks. As automated monitoring and decisionmaking systems potentially have significant impact on the physical and mental healthof persons performing platform work, digital labour platforms should evaluate thoserisks, assess whether the safeguards of the systems are appropriate to address thoserisks and take appropriate preventive and protective measures.

(39)

Directive 2002/14/EC of the European Parliament and of the Council 14 establishes ageneral framework for informing and consulting employees in the Union. The
introduction of or substantial changes in the use of automated monitoring anddecision-making systems by digital labour platforms have direct impacts on the workorganisation and individual working conditions of platform workers. Additional
measures are necessary to ensure that digital labour platforms inform and consult
platform workers or their representatives before such decisions are taken, at theappropriate level and, given the technical complexity of algorithmic management
systems, with the assistance of an expert chosen by the platform workers or theirrepresentatives in a concerted manner where needed.

(40)

Persons who do not have an employment relationship constitute a significant part ofthe persons performing platform work. The impact of automated monitoring anddecision-making systems used by digital labour platforms on their working conditions
and their earning opportunities is similar to that on platform workers. Therefore, therights in Articles 6, 7 and 8 of this Directive pertaining to the protection of natural
persons in relation to the processing of personal data in the context of algorithmic
management, namely those regarding transparency on automated monitoring anddecision-making systems, restrictions to process or collect personal data, humanmonitoring and review of significant decisions, should also apply to persons in theUnion performing platform work who do not have an employment contract or
employment relationship. The rights pertaining to health and safety at work andinformation 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-employedpersons performing platform work, provided that they are considered business users
within the meaning of that Regulation. Where such safeguards conflict with elementsof specific rights and obligations laid down in this Directive, the specific provisions ofRegulation (EU) 2019/1150 should prevail in respect of business users.

(41)

In order to ensure that digital labour platforms comply with labour legislation andregulations, social security contribution obligations, social security coordination andother relevant rules, in particular if they are established in another country than theMember State in which the platform worker is performing work, digital labour
platforms should declare work performed by platform workers to the competent labourand social protection authorities of the Member State in which the work is performed,

13

Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage
improvements in the safety and health of workers at work (OJ L 183, 29.6.1989, p. 1).
Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing ageneral framework for informing and consulting employees in the European Community (OJ L 80,
23.3.2002, p. 29).

14

EN

29

EN

in accordance with the rules and procedures laid down in the law of the Member Statesconcerned.

EN

(42)

Information on the number of persons performing platform work through digitallabour platforms on a regular basis, their contractual or employment status and thegeneral terms and conditions applicable to those contractual relationships is essential
to support labour inspectorates, social protection bodies and other relevant authorities
in correctly determining the employment status of persons performing platform work
and in ensuring compliance with legal obligations as well as representatives of persons
performing platform work 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 anddetails, such as basic data on working conditions regarding working time andremuneration.

(43)

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

(44)

Representatives of persons performing platform work should be able to represent one
or several persons performing platform work in any judicial or administrative
procedure to enforce any of the rights or obligations arising from 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 becauseof procedural and financial barriers or a fear of reprisals.

(45)

Platform work is characterised by the lack of a common workplace where workers can
get to know each other and communicate with each other and with theirrepresentatives, also in view of defending their interests towards the employer. It istherefore necessary to create digital communication channels, in line with the digitallabour platforms’ work organisation, where persons performing platform work can
exchange with each other and be contacted by their representatives. Digital labour
platforms should create such communication channels within their digital
infrastructure or through similarly effective means, while respecting the protection of
personal data and refraining from accessing 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 particularwhether the digital labour platform controls certain elements of the performance ofwork may be in the possession of the digital labour platform and not easily accessible
to persons performing platform work and competent authorities. National courts orcompetent authorities should therefore be able to order the digital labour platform todisclose any relevant evidence which lies in their control, including confidential
information, subject to effective measures to protect such information.

(47)

Given that Article 6, Article 7(1) and (3) and Article 8 of this Directive provide for
specific rules in the context of platform work to ensure the protection of employees'
personal data within the meaning of Article 88 of Regulation (EU) 2016/679 and that

30

EN

Article 10 of this Directive applies those safeguards also in case of persons without
employment contract or employment relationship, the national supervisory authorities
referred to in Article 51 of Regulation (EU) 2016/679 should be competent to monitor
the application of those safeguards. Chapters VI, VII and VIII of Regulation (EU)2016/679 should apply in terms of procedural framework for the enforcement of thosesafeguards, 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 Article 83(5) of that Regulation.

EN

(48)

Automated monitoring and decision-making systems used in the context of platformwork involve the processing of personal data and affect the working conditions andrights of persons performing platform work. They therefore raise issues of dataprotection law as well as labour and social protection law. Data protection supervisory
authorities and relevant labour and social protection authorities should therefore
cooperate in the enforcement of this Directive, including by exchanging relevant
information with each other, without prejudice to the independence of data protection
supervisory authorities.

(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 the need to establish common minimum requirements, be better achieved
at Union level, the Union may adopt measures, in accordance with the principle ofsubsidiarity as set out in Article 5 of the Treaty on European Union. In accordancewith the principle of proportionality as set out in that Article, this Directive does not
go beyond what is necessary in order to achieve that objective.

(50)

This Directive lays down minimum requirements, thus leaving untouched Member
States’ prerogative to introduce and maintain provisions which are more favourable forplatform workers. Rights acquired under the existing legal framework should continue
to apply, unless more favourable provisions are introduced by this Directive. The
implementation of this Directive cannot be used to reduce existing rights set out inexisting 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.

(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 andmedium-sized enterprises in order to ensure that they are not disproportionately
affected, giving specific attention to micro-enterprises and to the administrative
burden. Member States should also publish the results of such assessments.

(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 theMember 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 withnational law and practice, take adequate measures to ensure that the social partners are
effectively involved and to promote and enhance social dialogue with a view toimplementing the provisions of this Directive.

31

EN

(53)

In accordance with the Joint Political Declaration of 28 September 2011 of Member
States and the Commission on explanatory documents,15 Member States haveundertaken to accompany, in justified cases, the notification of their transposition
measures with one or more documents explaining the relationship between thecomponents of a directive and the corresponding parts of national transposition
instruments. With regard to this Directive, the legislator considers the transmission ofsuch documents to be justified.

(54)

The European Data Protection Supervisor was consulted in accordance with Article
42(1) of Regulation (EU) 2018/1725 of the European Parliament and of the Council16
and delivered an opinion on XX XXXX17,

HAVE ADOPTED THIS DIRECTIVE:
CHAPTER I
GENERAL PROVISIONS
Article 1
Subject matter and scope
1.

The purpose of this Directive is to improve the working conditions of persons
performing platform work by ensuring correct determination of their employment
status, by promoting transparency, fairness and accountability in algorithmic
management in platform work and by improving transparency in platform work,
including in cross-border situations, while supporting the conditions for thesustainable growth of digital labour platforms in the Union.

2.

This Directive lays down minimum rights that apply to every person performing
platform work in the Union who has, or who based on an assessment of facts may bedeemed to have, an employment contract or 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.
In accordance with Article 10, rights laid down in this Directive pertaining to theprotection of natural persons in relation to the processing of personal data in thecontext of algorithmic management also apply to every person performing platformwork in the Union who does not have an employment contract or employment
relationship.

3.

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

15

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 theprotection 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).
…

16

17

EN

32

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Article 2
Definitions
1.

For the purposes of this Directive, the following definitions shall apply:(1)

2.

‘digital labour platform’ means any natural or legal person providing acommercial service which meets 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 ofwork performed by individuals, irrespective of whether that work is
performed online or in a certain location;(2)‘platform work’ means any work organised through a digital labour platform
and performed in the Union by an individual on the basis of a contractual
relationship between the digital labour platform and the individual, irrespectiveof whether a contractual relationship exists between the individual and therecipient of the service;(3)‘person performing platform work’ means any individual performing platform
work, irrespective of the contractual designation of the relationship between
that individual and the digital labour platform by the parties involved;(4)‘platform worker’ means any person performing platform work who has an
employment contract or 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;(5)‘representatives’ means the workers’ organisations or representatives provided
for by national law or practices, or both;(6)‘micro, small or medium-sized enterprises’ means micro, small and mediumsized enterprises as defined in the Annex to Commission Recommendation
2003/361/EC18.

The definition of digital labour platforms laid down in paragraph 1, point (1), shallnot include providers of a service whose primary purpose is to exploit or share assets.
It shall be limited to providers of a service for which the organisation of work
performed by the individual constitutes not merely a minor and purely ancillarycomponent.
CHAPTER IIEMPLOYMENT STATUS
Article 3
Correct determination of the employment status

18

EN

Commission Recommendation of 6 May 2003 concerning the definition of micro, small and mediumsized enterprises (C(2003) 1422) (OJ L 124, 20.5.2003, p. 36).

33

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1.

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

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 accountthe use of algorithms in the organisation of platform work, irrespective of how the
relationship is classified in any contractual arrangement that may have been agreed
between the parties involved. Where the existence of an employment relationship isestablished based on facts, the party assuming the obligations of the employer shallbe clearly identified in accordance with national legal systems.
Article 4
Legal presumption

1.

The contractual relationship between a digital labour platform that controls, within
the meaning of paragraph 2, the performance of work and a person performing
platform work through that platform shall be legally presumed to be an employment
relationship. To that effect, Member States shall establish a framework of measures,in accordance with their national legal and judicial systems.
The legal presumption shall apply in all relevant administrative and legal
proceedings. Competent authorities verifying compliance with or enforcing relevant
legislation shall be able to rely on that presumption.

2.

3.

Controlling the performance of work within the meaning of paragraph 1 shall be
understood as fulfilling at least two of the following:(a)effectively determining, or setting upper limits for the level of remuneration;(b)requiring the person performing platform work to respect specific binding ruleswith regard to appearance, conduct towards the recipient of the service or
performance of the work;(c)supervising the performance of work or verifying the quality of the results of
the work including by electronic means;(d)effectively restricting the freedom, including through sanctions, to organise
one’s work, in particular the discretion to choose one’s working hours or
periods of absence, to accept or to refuse tasks or to use subcontractors or
substitutes;(e)effectively restricting the possibility to build a client base or to perform work
for any third party.

Member States shall take supporting measures to ensure the effective implementationof the legal presumption referred to in paragraph 1 while taking into account the
impact on start-ups, avoiding capturing the genuine self-employed and supporting thesustainable growth of digital labour platforms. In particular they shall:(a)EN

ensure that information on the application of the legal presumption is madepublicly available in a clear, comprehensive and easily accessible way;

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4.

(b)

develop guidance for digital labour platforms, persons performing platformwork and social partners to understand and implement the legal presumption
including on the procedures for rebutting it in accordance with Article 5;(c)develop guidance for enforcement authorities to proactively target and pursue
non-compliant digital labour platforms;(d)strengthen the controls and field inspections conducted by labour inspectorates
or the bodies responsible for the enforcement of labour law, while ensuring thatsuch controls and inspections are proportionate and non-discriminatory.

With regard to contractual relationships entered into before and still ongoing on thedate set out in Article 21(1), the legal presumption referred to in paragraph 1 shall
only apply to the period starting from that date.
Article 5
Possibility to rebut the legal presumption

Member States shall ensure the possibility for any of the parties to rebut the legal presumption
referred to in Article 4 in legal or administrative proceedings or both.
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 practice in force in
the Member State in question, with consideration to the case-law of the Court of Justice, theburden of proof shall be on the digital labour platform. Such proceedings shall not havesuspensive effect on the application of the legal presumption.
Where the person performing the platform work argues that the contractual relationship inquestion is not an employment relationship 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, the digital labour platform shall be required to assist the proper resolution of
the proceedings, notably by providing all relevant information held by it.
CHAPTER III
ALGORITHMIC MANAGEMENT
Article 6
Transparency on and use of automated monitoring and decision-making systems
1.

EN

Without prejudice to the obligations and rights of digital labour platforms andplatform workers under Directive (EU) 2019/1152, Member States shall require
digital labour platforms to inform platform workers of:(a)automated monitoring systems which are used to monitor, supervise or
evaluate the work performance of platform workers through electronic means;(b)automated decision-making systems which are used to take or support
decisions that significantly affect those platform workers’ working conditions,in particular their access to work assignments, their earnings, their occupationalsafety and health, their working time, their promotion and their contractual
status, including the restriction, suspension or termination of their account.

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2.

The information referred to in paragraph 1 shall concern:
(a)

(b)

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 monitored, supervised or evaluated by such
systems, including evaluation by the recipient of the service;

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 platform worker’s personal data or
behaviour influence the decisions;(iv) the grounds for decisions to restrict, suspend or terminate the platformworker’s account, to refuse the remuneration for work performed by theplatform worker, on the platform worker’s contractual status or any
decision with similar effects.
3.

Digital labour platforms shall provide the information referred to in paragraph 2 in
the form of a 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 platform workers’ request. The
information shall be presented in a concise, transparent, intelligible and easily
accessible form, using clear and plain language.

4.

Digital labour platforms shall make the information referred to in paragraph 2
available to platform workers’ representatives and national labour authorities upon
their request.

5.

Digital labour platforms shall not process any personal data concerning platformworkers that are not intrinsically connected to and strictly necessary for the
performance of the contract between the platform worker and the digital labour
platform. In particular they shall not:(a)process any personal data on the emotional or psychological state of theplatform worker;(b)process any personal data relating to the health of the platform worker, except
in cases referred to in Article 9(2), points (b) to (j) of Regulation (EU)2016/679;(c)

process any personal data in relation to private conversations, including
exchanges with platform workers’ representatives;(d)collect any personal data while the platform worker is not offering or
performing platform work.
Article 7
Human monitoring of automated systems

EN

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1.

Member States shall ensure that digital labour platforms regularly monitor andevaluate the impact of individual decisions taken or supported by automatedmonitoring and decision-making systems, as referred to in Article 6(1), on working
conditions.

2.

Without prejudice to Council Directive 89/391/EEC and related directives in the fieldof safety and health at work, digital labour platforms shall:(a)evaluate the risks of automated monitoring and decision-making systems to thesafety and health of platform workers, in particular as regards possible risks ofwork-related accidents, psychosocial and ergonomic risks;(b)assess whether the safeguards of those systems are appropriate for the risks
identified in view of the specific characteristics of the work environment;(c)introduce appropriate preventive and protective measures.

They shall not use automated monitoring and decision-making systems in any
manner that puts undue pressure on platform workers or otherwise puts at risk thephysical and mental health of platform workers.
3.

Member States shall require digital labour platforms to ensure sufficient humanresources for monitoring the impact of individual decisions taken or supported byautomated monitoring and decision-making systems in accordance with this Article.
The persons charged by the digital labour platform with the function of monitoring
shall have the necessary competence, training and authority to exercise that function.
They shall enjoy protection from dismissal, disciplinary measures or other adverse
treatment for overriding automated decisions or suggestions for decisions.
Article 8
Human review of significant decisions

1.

Member States shall ensure that platform workers have the right to obtain an
explanation from the digital labour platform for any decision taken or supported byan automated decision-making system that significantly affects the platform worker’s
working conditions, as referred to in Article 6(1), point (b). In particular, Member
States shall ensure that digital labour platforms provide platform workers with accessto a contact person designated by the digital labour platform to discuss and to 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 and authority to exercise that function.
Digital labour platforms shall provide the platform worker with a written statementof the reasons for any decision taken or supported by an automated decision-making
system to restrict, suspend or terminate the platform worker’s account, any decision
to refuse the remuneration for work performed by the platform worker, any decisionon the platform worker’s contractual status or any decision with similar effects.

2.

EN

Where platform workers 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 toreview that decision. The digital labour platform shall respond to such request byproviding the platform worker with a substantiated reply without undue delay and inany event within one week of receipt of the request.

37

ENWith regard to digital labour platforms which are micro, small or medium-sizedenterprises, Member States may provide that the deadline for reply referred to in thefirst subparagraph is extended to two weeks.
3.

Where the decision referred to in paragraph 1 infringes the platform worker’s rights,
the digital labour platform shall rectify that decision without delay or, where such
rectification is not possible, offer adequate compensation.

4.

This Article shall be without prejudice to dismissal procedures laid down in nationallaw.
Article 9
Information and consultation

1.

Without prejudice to the rights and obligations under Directive 2002/14/EC, Member
States shall ensure information and consultation of platform workers’ representatives
or, where there are no such representatives, of the platform workers concerned bydigital labour platforms, on decisions likely to lead to the introduction of or
substantial changes in the use of automated monitoring and decision-making systems
referred to in Article 6(1), in accordance with this Article.

2.

For the purposes of this Article, the definitions of ‘information’ and ‘consultation’ aslaid down in Article 2, points (f) and (g), of Directive 2002/14/EC shall apply. The
rules laid down in Article 4(1), (3) and (4), Article 6 and Article 7 of Directive
2002/14/EC shall apply accordingly.

3.

The platform workers’ representatives or the platform workers concerned may beassisted 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 has more than 500 platform workers in a
Member State, the expenses for the expert shall be borne by the digital labour
platform, provided that they are proportionate.
Article 10
Persons performing platform work who do not have an employment relationship1.

Article 6, Article 7(1) and (3) and Article 8 shall also apply to persons performing
platform work who do not have an employment contract or employment relationship.

2.

This Article shall be without prejudice to Regulation (EU) 2019/1150. If theprovisions of this Directive conflict with a provision of Regulation (EU) 2019/1150
in respect of business users within the meaning of that Regulation, the provision ofthat Regulation shall prevail and shall apply to those business users. Article 8 of thisDirective shall not apply to business users within the meaning of Regulation (EU)2019/1150.
CHAPTER IV
TRANSPARENCY ON PLATFORM WORK
Article 11
Declaration of platform work

EN

38

EN

Without prejudice to Regulations (EC) No 883/200419 and 987/200920 of the European
Parliament and of the Council, Member States shall require digital labour platforms which areemployers to declare work performed by platform workers to the competent labour and social
protection authorities of the Member State in which the work is performed and to share
relevant data with those authorities, in accordance with the rules and procedures laid down in
the law of the Member States concerned.
Article 12
Access to relevant information on platform work
1.

Where labour, social protection and other relevant authorities exercise their functions
in ensuring compliance with legal obligations applicable to the employment status of
persons performing platform work and where the representatives of persons
performing platform work exercise their representative functions, Member Statesshall ensure that digital labour platforms make the following information available to
them:
(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 applicable to those contractual relationships,
provided that those terms and conditions are unilaterally determined by thedigital labour platform and apply to a large number of contractual relationships.

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 modified.

3.

Labour, social protection and other relevant authorities and representatives of
persons performing platform work shall have the right to ask digital labour platforms
for additional clarifications and details regarding any of the data provided. The
digital labour platforms shall respond to such request within a reasonable period oftime by providing a substantiated reply.

4.

With regard to digital labour platforms which are micro, small or medium-sizedenterprises, Member States may provide that the periodicity for updating informationin accordance with paragraph 2 is reduced to once every year.
CHAPTER V
REMEDIES AND ENFORCEMENT
Article 13
Right to redress

19
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EN

Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on thecoordination of social security systems (OJ L 166, 30.4.2004, p. 1).
Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009
laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination ofsocial security systems (OJ L 284, 30.10.2009, p. 1).

39

ENWithout prejudice to Articles 79 and 82 of Regulation (EU) 2016/679, Member States shallensure that persons performing platform work, including those whose employment or othercontractual relationship has ended, have access to effective and impartial dispute resolution
and a right to redress, including adequate compensation, 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 prejudice to Article 80 of Regulation (EU) 2016/679, Member States shallensure that representatives of persons performing platform work or other legal
entities which have, in accordance with the criteria laid down by national law orpractice, a legitimate interest in defending the rights of persons performing platform
work, may engage in any judicial or administrative procedure to enforce any of therights or obligations arising from this Directive. They may act on behalf or in support
of a person performing platform work in the case of an infringement of any right or
obligation arising from this Directive, with that person’s approval.

2.

Representatives of persons performing platform work shall also have the right to act
on behalf or in support of several persons performing platform work, with those
persons’ approval.
Article 15
Communication channels for persons performing platform work

Member States shall take the necessary measures to ensure that digital labour platforms create
the possibility for persons performing platform work to contact and communicate with eachother, and to be contacted by representatives of persons performing platform work, throughthe digital labour platforms’ digital infrastructure or similarly effective means, while
complying with the obligations under Regulation (EU) 2016/679. Member States shall require
digital labour platforms to refrain from accessing or monitoring those contacts andcommunications.
Article 16
Access to evidenceEN

1.

Member States shall ensure that in proceedings concerning a claim regarding correct
determination of the employment status of persons performing platform work,
national courts or competent 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 thedisclosure of evidence containing confidential information where they consider it
relevant to the claim. They shall ensure that, when ordering the disclosure of suchinformation, national courts have at their disposal effective measures to protect suchinformation.

3.

This Article shall not prevent Member States from maintaining or introducing rules
which are more favourable to persons performing platform work.

40

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

Member States shall take the necessary measures to prohibit the dismissal or its
equivalent and all preparations for dismissal or its equivalent of persons performing
platform work, on the grounds that they have exercised the rights provided for in thisDirective.

2.

Persons performing platform work who consider that they have been dismissed, or
have been subject to measures with equivalent effect, on the grounds that they haveexercised the rights provided for in this Directive, may request the digital labour
platform to provide duly substantiated grounds for the dismissal or the equivalentmeasures. The digital labour platform shall provide those grounds in writing.

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 othercompetent authority or body, facts from which it may be presumed that there has
been such a dismissal or equivalent measures, it shall be for the digital labour
platform to prove that the dismissal or equivalent measures were based on grounds
other than those referred to in paragraph 1.

4.

Paragraph 3 shall not prevent Member States from introducing rules of evidence
which are more favourable to persons performing platform work.

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
the Member State.
Article 19
Supervision and penalties

EN

1.

The supervisory authority or authorities responsible for monitoring the application ofRegulation (EU) 2016/679 shall also be responsible for monitoring the application of
Article 6, Article 7(1) and (3) and Articles 8 and 10 of this Directive, in accordancewith the relevant provisions in Chapters VI, VII and VIII of Regulation (EU)2016/679. They shall be competent to impose administrative fines up to the amountreferred to in Article 83(5) of that Regulation.

2.

The authorities referred to in paragraph 1 and national labour and social protection
authorities shall, where relevant, cooperate in the enforcement of this Directive,
within the remit of their respective competences, in particular where questions on theimpact of automated monitoring and decision-making systems on working conditions

41

EN

or on rights of persons performing platform work arise. For that purpose, thoseauthorities shall exchange relevant information with each other, including
information obtained in the context of inspections or investigations, either uponrequest or at their own initiative.
3.

Member States shall lay down the rules on penalties applicable to infringements ofnational provisions adopted pursuant to provisions of this Directive other than thosereferred to in paragraph 1 or of the relevant provisions already in force concerning
the rights which are within the scope of this Directive. The penalties provided forshall be effective, proportionate and dissuasive.
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 ofprotection already afforded to workers within Member States.

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 to encourage or permit the application of collective
agreements which are more favourable to platform workers, in line with theobjectives of this Directive. As regards persons performing platform work who are
not in an employment relationship, this paragraph shall only apply insofar as suchnational 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.
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 thisDirective 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.

EN

2.

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

3.

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

4.

Member States may entrust the social partners with the implementation of thisDirective, where the social partners jointly request to do so and provided that42

EN

Member States take all necessary steps to ensure that they can at all times guarantee
the results sought under this Directive.
Article 22
Review by the Commission
By [5 years after entry into force], the Commission shall, after consulting the Member States,
the social 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 andpropose, where appropriate, legislative amendments.
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 Brussels,

For the European Parliament
The President

EN

For the Council
The President

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EN