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Welcome (back) to the influencer Gig Economy!

The Proposal

The Commission has just announced new interesting developments concerning the Gig Economy which are to be expected at the European level in the near future.[1] Therefore, a follow-up blog post on the Gig Economy seems necessary. These developments include a proposal on the improvement of working conditions in platform work to ensure labour rights to the ‘Gig workers’ and foster the growth of the digital labour platforms to benefit from the DSM’s[2] full potential.[3] 

Why is an EU-wide measure essential to tackle the issue? Although digital labour platforms might be established in one MS[4], 59 % of the time they operate through workers based in other MSs or even performing cross-border work.[5] Consequently, a uniform and harmonised body of rules is necessary to reach the established objectives. 

Employed or self-employed? 

In the previous blog, we tried to assess the employment status of people working through platforms: employed or self-employed? Since the law is nothing but clear on the matter, we had to resort to national case law, which resulted in inhomogeneous outcomes.[6] Like the majority of national court decisions,[7] we concluded that most relationships can be classified as employment relationships. However, this is not always so straightforward as 90% of the platforms active in the EU classify their workers as self-employed.[8]

Chapter II of the proposed Directive comes to help by establishing measures that correctly determine the legal employment status of a person performing platform works and combat false self-employment.[9]

Article 3 of the Directive requires MSs to have in place appropriate procedures to carry out the correct employment determination, which should be based on the principle of primacy of facts. The assessment needs to be based on the actual performance of the work, remuneration and the use of algorithms and not on the relationship established by the contract itself. 

Article 4 introduces a legal presumption that the relationship between the person performing platform work and the platform is one of employment if at least two requirements enlisted in subsection 2 are fulfilled. The requirements include, among others, whether the platform determines the upper limits of remuneration, supervises the performance of work or verifies the quality of the results of the work.

Finally, the Directive includes the possibility to rebut the legal presumption in Article 5. If the labour platform believes the relationship with the worker is not one of employment, it has the chance to rebut the presumption in legal or administrative proceedings.

By imposing a ‘default’ determination of the employment status, the EU aims at strengthening legal certainty and fundamental-right compliance. Indeed, as mentioned in our previous blog, the determination greatly influences the different treatment of a worker mostly in terms of his/her social rights. Indeed, the body of EU legal instruments ensuring a minimum standard of these rights (such as the Directive on transparent and predictable working conditions, the Directive on work-life balance for parents and carers) protects employed people (and not self-employed ones). All in all, the Directive seems to have a great potential in terms of improving weak-party protection while at the same time ensuring ‘digital transformation’, a crucial point of President von Der Leyen’s political Guidelines. How the Directive and each provision will develop throughout the iter legis remains to be seen.

[1] https://ec.europa.eu/commission/presscorner/detail/en/ip_21_6605  

[2] Digital Single Market

[3] Proposal for a Directive of the European Parliament and of the Council on improving working conditions in platform work 2021/0414

[4] Member State

[5] Study to support the impact assessment of an EU Initiative on improving the working conditions in platform work (2021), section 7.1.

[6] Preamble 7 of the Directive Proposal

[7] ECE, Case Law on the Classification of Platform Workers: Cross-European Comparative Analysis and Tentative Conclusions (2021)

[8] De Groen W., Kilhoffer Z., Westhoff L., Postica D. and Shamsfakhr F. Digital Labour Platforms in the EU: Mapping and Business Models (2021)

[9] Preamble 19 of the Directive proposal

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