In 2021, the European Commission proposed a Directive on improving working conditions in platform work by ensuring, amongst other things, the correct determination of platform workers’ employment status and by promoting transparency, fairness and accountability in the algorithmic management of their work. This was the Commission’s attempt to regulate the growing gig economy.

In December 2023, the preparatory bodies of European Parliament and Council reached a provisional agreement on the Directive (previously reported by Wiggin). Provisional agreements must be formally adopted by the Parliament and Council (i.e. Member States). However, Member States rejected the provisional agreement and, in February 2024, the co-legislators reached a new provisional agreement (previously reported by Wiggin) seeking to address the concerns that had been raised by some Member States. According to reports, on 16 February 2024, the new provisional agreement was also rejected by the Member States as the necessary qualified majority vote could not be reached. Under the qualified majority voting system, a file is adopted in the Council when at least 55% of Member States, representing at least 65% of the total EU population, vote in favour. However, a ‘blocking minority’ can occur when four or more member states choose to either vote against or abstain.

The main area of contention is the Commission’s proposal that 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 would be deemed to arise when two out of five criteria from a fixed list are met. The criteria included 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. Without access to the texts that were discussed and provisionally agreed, it is not possible to say precisely what compromise offered by the co-legislators has now been rejected by the Member States. Reports indicate that, although there was an attempt to reduce the application of the presumption of employment, this was either not enough for some Member States or in their view the provision had been so watered down as to lead to legal uncertainty.

Given that European elections are imminent, time is running out to continue negotiations and it is not clear if the proposal will proceed.