As we reported in our last edition, entirely dedicated to the issue of gig economy and the platform workers status, the topic is widely debated and the EU's proposal for a directive has already been the subject of discussions and positions even before it is issued.

The proposed Directive provides a list of control criteria to determine whether the platform is an “employer”.

According to article 4, it happens if the digital labour platform controls certain elements of the performance of work, such as:

•  determining, or setting upper limits for the level of remuneration;
• requiring the person performing platform work to respect specific binding rules;
• supervising the performance of work or verifying the quality of the results of the work including by electronic means;
• restricting the freedom, including through sanctions, to organize 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;
• restricting the possibility to build a client base or to perform work for any third party.

If the platform meets at least two of those criteria, it is legally presumed to be an employer. This classification involves the right to a minimum wage (where it exists), collective bargaining, working time and health protection, the right to paid leave or improved access to protection against work accidents, unemployment and sickness benefits, as well as contributory old-age pensions. Platforms will have the right to contest or “rebut” this classification, with the burden of proving that there is no employment relationship resting on them.

The Directive also includes provisions on the use of algorithms by digital platforms to increase transparency around, and monitoring of, their use, also giving the right to contest automated decisions both workers and genuinely self-employed individuals.

Business Europe commented that the proposal does not reflect reality, as many platform workers choose to work as self-employed, adding that “Cooperation between the Commission, Member States and national social partners is the way forward to reach clarity on the criteria to distinguish self-employed platform workers from workers employed by platforms”.

General Director Markus J. Beyrer said: "We regret the approach chosen by the Commission on platform work. The Commission chose to make a political statement rather than proposing a balanced solution for platforms, for workers and for their clients. Any EU intervention on platform work must provide clarity on how platform work can be legitimately organised – both as self-employment and employment, depending on which fits best. There is no one-size-fits-all solution for platform work and EU Member States’ and social partners’ competences to define who is working under an employment relationship must be respected.".

The proposed Directive will now be discussed by the Parliament and the Council.

When the final Directive is adopted, member states will have two years to implement its provisions at a national level.