Platform workers: towards a European agreement on the employment presumption

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On March 11, 2024, an agreement around a draft directive to strengthen the protection of digital platform workers in Europe was approved by twenty-five Member States. For the time being, France and Germany are opposed to the text.

An expected agreement

The draft directive, submitted on December 9, 2021, by the European Commission, aimed at clarifying and unifying the status and working conditions of platform workers by imposing an employment presumption stemming from harmonized Europe-wide criteria. For more details, please refer to our February 2022 client alert.

This draft directive was presented to the two co-legislators, the Council, and the European Parliament, who reached a provisional agreement on December 13, 2023. This provisional agreement, presented to Permanent Representatives Committee (known as Coreper and composed of the deputy permanent representatives of each Member State), failed to secure a majority. However, some countries (including France) strongly criticizing the employment presumption introduced by the text.

This led to new negotiations between the Council and the European Parliament, resulting in a new provisional agreement on February 8, 2024.

On March 11, 2024, Coreper finally approved the provisional agreement reached on February 8, 2024, by a qualified majority, despite opposition from France and Germany.

An employment presumption specific to each Member State

Whereas the text initially put forward by the European Commission introduced an employment presumption based on criteria common to all Member States, the compromise adopted renounces to this list of criteria.

The draft directive requires Member States to introduce an employment presumption for platform workers in their national legislation and set out the framework of this presumption.

In this respect, the text provides that when the relationship between the platform and the worker suggests the existence of a subordinate relationship (appreciated in light of the legal or collective bargaining agreement provisions, or case law), the worker must benefit from the legal presumption of employment.

This presumption must, however, be capable of being rebutted by the platform, which must demonstrate that the worker is in fact perfuming his/her work independently.

The legal presumption introduced by the draft directive therefore leads to a lightening of the burden of proof for the benefit of platform workers, who will be able to obtain more easily the recharacterization of their relationship with the platform into an employment agreement.

Ultimately, the freedom left to the Member States is limited and will mainly concern the ways in which the legal presumption can be rebutted by the platform.

Next steps

The Council and the European Parliament must now formally ratify the provisional agreement of February 8, 2024. The European Parliament vote should take place in April 2024, and in any case before the European elections to be held in June 2024.

Opposition from France and Germany should have no impact on the outcome of the vote, as these countries do not hold a blocking minority.

Once the directive has been adopted, Member States will have two years to transpose it into their national legislation.

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