Brussels – Employed or self-employed: two years after the European Commission’s legislative proposal, EU institutions have agreed on a directive to protect the rights of the more than 28 million riders, drivers, and other European citizens employed in the gig economy. The text finalized today (Dec. 13) in the inter-institutional trilogue revolves around one key point: the presumption of a relationship of employment versus self-employment. It is a significant achievement for the 5.5 million digital platform workers who the EU estimates to be wrongly classified as self-employed throughout the EU. And who consequently are denied labor and social rights: minimum wage (where it exists), collective bargaining, working hours, health and work accident protection, paid vacation, unemployment, sickness, and old age pension.
To “trigger” the presumption of a subordinate relationship, it will be necessary to have two of five chosen indicators that relate to the upper limits on the amount of money workers can receive, control over the assignment, distribution, and performance of tasks, restrictions on the choice of working hours, freedom to organize work, and rules on physical appearance or behavior. The five criteria are the outcome of tight negotiations: the European Parliament wanted the presumption of employment to apply without criteria, while the 27 EU member countries had indicated the need to meet at least three of the seven indicators in the Commission’s original proposal. In the end, in addition to the five chosen indicators, member states will have the option to add others individually. There is also the principle of reversal of the burden of proof: when a worker, his representatives, or the competent authorities assert the presumption of employment, it will be the employers or the platforms who will have to gather evidence to prove that a worker is really self-employed. Not the other way around, as has been the case until now.
Elisabetta Gualmini (S&d) at the trilogues,12/12/23
“A historic agreement. I did not think we could have reached such a good compromise,” said Democratic Party MEP Elisabetta Gualmini, the proposal’s rapporteur in Parliament. Negotiations among the 27 Member States resulted in a “very ambitious” text that will “protect the European social model and the rights of millions of workers, with innovations never seen before in Europe.” In addition to shedding light on fictitious self-employment, the new rules should allow digital workers and their representatives to access information about how algorithms work and how their behavior influences decisions made by automated systems. Decisions that, especially when they come to terminations or suspensions, will have to be made with human oversight. Platforms will also have increased protections in handling workers’ personal data, which will not be allowed to go beyond those strictly related to work life. The EU estimates that citizens employed in digital platforms will reach 43 million as early as 2025. The Gig economy “has transformed the way we consume and work, and we want it to continue to thrive,” said Nicolas Schmit, EU Commissioner for Employment and Social Affairs, “at the same time, we need to make sure that it meets the same social and labor standards that offline companies adhere to.
English version by the Translation Service of Withub
