The Directive on improving working conditions in platform work, proposed by the European Commission in 2021, is aimed at improving the working conditions of persons performing platform work by ensuring, amongst other things, the correct determination of their employment status and by promoting transparency, fairness and accountability in the algorithmic management of the work. Platform work is work organised through a digital labour platform, a platform providing a commercial service via a website or app at the request of recipients of the service, that is performed by an individual based on a contract with the digital labour platform (irrespective of the contractual designation of the relationship). The proposed new law aims to address the perceived problem that many workers in the so-called “gig” economy, such as taxi or delivery drivers, are incorrectly classified as self-employed with the result that that they miss out on important employment and social security protections provided by law.

As previously reported by Wiggin, on 13 December 2023, the European Parliament and Council reached a provisional agreement on the Directive. However, the majority of EU Member States were not willing to adopt the provisional agreement. According to reports, they considered that the Council Presidency had overstepped its mandate in the negotiations with the Parliament.

On 8 February 2024, the Parliament and Council reached a new provisional agreement. The agreed text is not yet available.

Under the original Commission proposal, the relationship between a digital labour platform and a person performing platform work is presumed to be an employment relationship where the platform controls the performance of the work. Such control is deemed to arise when two out of five criteria from a fixed list are met. The criteria include setting the level of remuneration, supervising the work, verifying the quality of the work and restricting freedom to organise one’s work (e.g. hours or absence), to accept or refuse tasks and to use subcontractors. This was a contentious aspect of the Directive and, according to reports (the text was never made public). In December, the co-legislators agreed that the criteria should only be used as “indicators” of an employment relationship, and that Member States could add further indicators to the list. The Parliament and the Council agreed to retain the provision set out in the Commission’s original proposal that the employment relationship presumption is rebuttable by the platform if it can prove that the relationship is not an employment relationship.

According to reports, it appears that the latest provisional agreement reverts to wording on the employment relationship criteria that is closer to the Commission’s original proposal. This position seeks to address concerns raised by some Member States that the criteria should not be drafted too widely as this could risk catching those workers who are genuinely self-employed.

The agreed text will now have to be formally adopted by both institutions. Once it enters into force, Member States will have two years to incorporate the provisions of the Directive into their national legislation.

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