The unintended consequences of the European Platform Work Directive – EURACTIV.com
Europe must take care of its 28 million platform workers but the European Parliament’s rewrite of the European Commission’s proposal, to be formally adopted by the plenary of the Parliament next week, smacks of legislative overreach, risks sidelining this promising new mode of work and would curtail opportunities for workers at a time of high economic tension.
Benoit Le Bret is a partner at the Gide Loyrette Nouel Law Firm in Brussels.
The central aim of the EU platform work rules was, and remains, to provide workers with better protection and benefits, fight bogus self-employment, ensure that platforms bear their share of the responsibility, and to create legal certainty and a level playing field across EU member states. In this, the Parliament fails.
At the core of the European Parliament’s proposal is a legal presumption that most if not all of the 28 million platform workers throughout Europe, even those currently working independently – genuinely and out of free choice – would automatically be presumed to be ‘employees’ of the platform. This presumption of employee status is theoretically rebuttable, but by providing no sharp-edged guidance or criteria, the European Parliament makes this virtually impossible in practice, or open to each Member State’s further disharmonized practices.
The Parliament’s text also overreaches significantly by creating new hurdles for anyone wishing to prove themselves as self-employed, in addition to what is already defined under national law. Thereby, it is undoing decades of jurisprudence that have gone into defining a protective employment relationship at a national level. This creates uncertainty for workers, of whom a vast majority prefer their flexibility and independence, and platforms, many of which are not big-name unicorns but small, local start-ups.
Moreover, any challenge to an individual platform worker’s status would, in the absence of clear legal tests, unavoidably drag on, causing unnecessary cost and stress to workers themselves and to the competent authorities tasked with administering the regime. With such fragmentation across jurisdictions, a European level playing field would be unthinkable and so would the rise of any new European player.
The European Parliament’s proposal also adds further legal ambiguity about the use of algorithms and data protection. It is axiomatic that the EU has already taken a global lead in regulating privacy and will shortly adopt path-breaking rules circumscribing the use of automated decision-making systems. These rules apply – General Data Protection Regulation -or are set to apply regarding AI Act, fully and without exception to the platform mode of work as they do for the analogue mode. Why overwrite and goldplate the EU existing tough but highly practical inspiring model which has already set the EU as global rule maker? Why, on the pretext of flexing legislative muscle in the run-up to the European Parliament election next year, put the wellbeing of platform customers at risk?
The proposal of the European Parliament casts aside the European Commission’s original, legally safer and balanced proposal and is not a sensible or practical way forward.
The EU Council of Ministers, co-legislator with the European Parliament, is taking a more thoughtful approach to this important piece of legislation, not least because it is on the ground, at local level, where the new rules will have to be implemented, not in Brussels.
The 27 member governments have yet to adopt a common position on the European Commission’s proposal. National authorities are well aware of the need to provide proper protection for platform workers while at the same time allowing flexible modes of work to flourish. Some of them had already set in stone a protective model, granting platform workers with rights without changing their status. Crucially, both the Commission and many in the Council are keen to ensure that the new EU rules do not unnecessarily impact the more than 22 million platform workers who, according to the Commission estimate, are genuinely self-employed and should not face any burdensome procedure to end qualified as such.
Throughout the next few days, members of the EU Parliament still have the possibility to question the mandate of the Employment Committee to negotiate with the Council. If a majority of MEPs shares the above described concerns, there would still be an opportunity to find a more reasonable way to achieve the Directive’s original ambition.