Debate: Need to overcome the Council deadlock on the platform workers directive
Date: MONDAY, 26 FEBRUARY 2024
Speaker: Nicolas Schmit
Language: EN

More than two years ago, the Commission delivered an ambitious proposal to do exactly that: combating the misclassification of the employment status through robust legal presumption of employment, and establishing rules to ensure fairness, transparency and accountability in the automated systems used by digital labour platforms – the first comprehensive rules for algorithmic management at work worldwide. These elements would improve the level playing field for digital labour platforms in the internal market. It is an important directive not only for the platform economy, but also for the labour market of today and of tomorrow. The Parliament and the Belgian Presidency negotiators reached a provisional agreement on this directive at the trilogue on 8 February, after already a first agreement, which had been found – as the Presidency has said – by the Spanish Presidency, but which could not be approved by a qualified majority in the Council. The provisional agreement requires Member States to introduce an effective, rebuttable presumption of employment at national level, which must be in line with the following five elements. The presumption should be based on facts that indicate direction and control. The notion is to be based on national law, collective agreements or practice, with consideration to the case law of the Court of Justice. The presumption should be a procedural facilitation for people working on platforms that aim to have their employment status reclassified. National law should make it easy for the person performing platform to benefit from the presumption. The requirements under the legal presumption should not be burdensome, and the presumption should ease difficulties in providing evidence indicating the existence of an employment relationship in a situation of imbalance of power vis-à-vis the digital labour platform. The shift in the burden of proof towards the digital labour platform is clearly stipulated in the text. Therefore, the legal presumption as defined in the provisional agreement improves the situation of persons performing platform work seeking reclassification. In my view, this agreement presents an added value compared to the current situation, an obvious added value, and it does not allow digital labour platforms to easily circumvent the presumption. I consider this provisional agreement as a fair compromise, although of course I would have preferred to keep the initial Commission’s proposal with EU-level criteria in the text. At the same time, the agreed approach still contributes to more convergence due to the introduction of a legal presumption of employment in all Member States compared to the current situation characterised by high fragmentation. Therefore, the provisions contained in the provisional agreement represent an improvement for platforms operating in the EU internal market. Of course, I regret that the provisional agreement could not gather, up to now, the necessary support in Coreper despite the recent changes. Each Member State is of course entitled to its own position, but I had hoped that a compromise would have been found by now. Faced with this situation, we have no other choice but to keep on trying, and work even closer together to find a compromise that is agreeable to both co-legislators. I have full confidence in the Belgian Presidency that is continuing to explore possible solutions to find a way out of the deadlock. I just want, nevertheless, to mention there are 23 Member States who have endorsed the compromise. That means that there are four Member States who haven’t. It’s not clear those who have abstained and those who have voted against, but 23 Member States have endorsed, and we are just not very far away from a qualified majority. I am confident that the discussion planned for the EPSCO Council meeting on 11 March will provide the opportunity to find the necessary majority for an agreement. I am confident that the positive solution to overcome the stalemate will be found, as we should all share the objective of improving the working conditions of millions of people working for platforms in the EU. I also want to state very clearly that this directive was not proposed as an affront to the model of labour relations in any Member State, but as a way forward to complement existing models and improve the overall situation of platform workers across the EU. With this in mind, we are in close touch with the co-legislators and we will do everything we can to support the efforts, especially the remarkable efforts by the Presidency, to find a balanced solution, after the very open mind also which was shown by the Parliament in the negotiation. After all, this directive is about supporting the millions of people working for platforms – many young people among them – who are in need of better protection. We must not let them down, as we should not let further the Pandora’s box be opened to diminish labour rights and to generalise precariousness.