Comments and proposals from Denmark
CHAPTER II
EMPLOYMENT STATUS
Article 3
(1)
Correct determination of the employment status
1.
Member States shall have appropriate procedures, in accordance with national law and
practice in place to verify and ensure the correct determination of the employment status of
persons performing platform work, with a view to ascertaining the existence of an
employment relationship as defined by the law, collective agreements or practice in force in
the Member States with consideration to the case-law of the Court of Justice, and ensuring
that they enjoy the rights deriving from Union law applicable to workers.
2.
The determination of the existence of an employment relationship shall be guided primarily
by the facts relating to the actual performance of work, taking into account the use of
algorithms in the organisation of platform work, irrespective of how the relationship is
classified in any contractual arrangement that may have been agreed between the parties
involved. Where the existence of an employment relationship is established based on facts,
the party assuming the obligations of the employer shall be clearly identified in accordance
with national legal systems.
Reasoning/comments:
1) DK notes that “appropriate procedures” can be procedures at national courts, administrative procedures
etc. DK propose to add “in accordance with national law and practise” in order to make it clear, that no
new authorities or procedures are needed if existing structures are in place.
Article 4
Legal presumption
1. The contractual relationship between a digital labour platform
[…] and a person performing
platform work through that platform shall be legally presumed to be an employment
relationship
when two of the following criteria de facto are met
(a)
[…] determining, or setting upper limits for the level of remuneration;
(b) requiring the person performing platform work to respect specific
[…] rules with regard
to appearance, conduct towards the recipient of the service or performance of the work;
(c) supervising the performance of work or verifying the quality of the results of the work
including by electronic means;
(d)
[…] restricting
[…] the discretion to choose one’s working hours or periods of absence,
to accept or to refuse tasks or to use subcontractors or substitutes;
(e)
[…] restricting the possibility to build a client base or to perform work for any third
party.
3. The legal presumption shall apply in all relevant administrative
or legal proceedings
where
the employment status of the person performing platform work is at issue.
In addition, competent authorities verifying compliance with or enforcing relevant legislation
may also rely on that presumption
in assessing whether a contractual relationship should
be considered an employment relationship, unless it is manifest that the presumption
would be rebutted on the basis of the law, collective agreements or practice in force in
the Member State in question, with consideration to the case-law of the Court of Justice.
To that effect, Member States shall establish a framework of measures, in accordance with
their national legal and judicial systems.
4. Member States shall take supporting measures to ensure the effective implementation of the
legal presumption referred to in paragraph 1 while taking into account the impact on start-ups,
avoiding capturing the genuine self-employed and supporting the sustainable growth of digital
labour platforms. In particular they shall:
(a) ensure that information on the application of the legal presumption is made publicly
available in a clear, comprehensive and easily accessible way;
(b) develop guidance for digital labour platforms, persons performing platform work and
social partners to understand and implement the legal presumption including on the
procedures for rebutting it in accordance with Article 5;
(c)
in line with national law or practice, develop guidance for
competent national
authorities to proactively target and pursue non-compliant digital labour platforms;
(d)
in line with national law or practice, strengthen the controls and field inspections
conducted by labour inspectorates or the bodies responsible for the enforcement of
labour law, while ensuring that such controls and inspections are proportionate and non-
discriminatory.
5. With regard to contractual relationships entered into before and still ongoing on the date set
out in Article 21(1), the legal presumption referred to in paragraph 1 shall only apply to the
period starting from that date.
Reasoning/comments:
1. Art. 4.1: DK suggests a simplification of 4,1 and 4,2. Firstly, measures and procedures are regulated in
article 3 and article 4,3, and is therefore superfluous in 4,1. Secondly, the proposal from the French
Presidency concerns us, as this interferes with national definitions of workers.
2. DK reserves the right to make amendments to the formulation of the criteria at a later stage.
3. Art. 4.3: DK supports the French presidency’s proposal of emphasizing that the authorities are left with a
discretion as to whether to apply the presumption rule when the platform worker is obviously genuinely
self-employed.
Article 5
[…] Rebuttal of the legal presumption
1.
Member States shall ensure the possibility for any of the parties to rebut the legal presumption
[…].
To this effect:
a) where
, in the context of the administrative or legal proceedings referred to in
Article 4, the digital labour platform argues that the contractual relationship in question
is not an employment relationship as defined by the law, collective agreements or
practice in force in the Member State in question, with consideration to the case-law of
the Court of Justice, the burden of proof shall be on the digital labour platform
[…];
where
, in the context of the administrative or legal proceedings referred to in
Article 4, the person performing the platform work argues that the contractual
relationship in question is not an employment relationship as defined by the law,
collective agreements or practice in force in the Member State in question, with
consideration to the case-law of the Court of Justice, the digital labour platform shall be
required to assist the proper resolution of the proceedings, notably by providing all
relevant information held by it.
2. Member States may decide that where a digital labour platform challenges an
administrative or judicial decision applying the presumption, such a proceeding shall not
have a suspensive effect on any relevant decision, as far as the requalification is
concerned.
Reasoning/comments:
1) Art. 5.2: The question of suspensive effect should be left for Member States to decide. Absence of
suspensive effect breaks with Danish practice.
CHAPTER III
ALGORITHMIC MANAGEMENT
Article 6
Transparency on and use of automated monitoring and decision-making systems
1.
Without prejudice to the obligations and rights of digital labour platforms and platform
workers under Directive (EU) 2019/1152, Member States shall require digital labour
platforms to inform platform workers of:
(a) automated monitoring systems which are used to monitor, supervise or evaluate the
work performance of platform workers through electronic means;
(b) automated decision-making systems which are used to take or support decisions that
significantly affect those platform workers’ working conditions, in particular their
access to work assignments, their earnings, their occupational safety and health, their
working time, their promotion and their contractual status, including the restriction,
suspension or termination of their account.
2.
The information referred to in paragraph 1 shall concern:
(a) as regards automated monitoring systems:
(i) the fact that such systems are in use or are in the process of being introduced;
(ii) the categories of actions monitored, supervised or evaluated by such systems,
including evaluation by the recipient of the service;
(b) as regards automated decision-making systems:
(i) the fact that such systems are in use or are in the process of being introduced;
(ii) the categories of decisions that are taken or supported by such systems;
(iii) the main parameters that such systems take into account and the relative
importance of those main parameters in the automated decision-making, including
the way in which the platform worker’s personal data or behaviour influence the
decisions;
(iv) the grounds for decisions to restrict, suspend or terminate the platform worker’s
account, to refuse the remuneration for work performed by the platform worker,
on the platform worker’s contractual status or any decision with similar effects.
3.
Digital labour platforms shall provide the information referred to in paragraph 2 in the form of
a document which may be in electronic format. They shall provide that information at the
latest on the first working day, as well as in the event of substantial changes and at any time
upon the platform workers’ request. The information shall be presented in a concise,
transparent, intelligible and easily accessible form, using clear and plain language.
4.
Digital labour platforms shall in accordance with national law and practice make the
information referred to in paragraph 2 available to platform workers’ representatives and
competent authorities upon their request.
5.
Digital labour platforms shall not process any personal data concerning platform workers that
are not intrinsically connected to and strictly necessary for the performance of the contract
between the platform worker and the digital labour platform. In particular they shall not:
(a) process any personal data on the emotional or psychological state of the platform
worker;
(b) process any personal data relating to the health of the platform worker, except in cases
referred to in Article 9(2), points (b) to (j) of Regulation (EU) 2016/679;
(c) process any personal data in relation to private conversations, including exchanges with
platform workers’ representatives;
(d) collect any personal data while the platform worker is not offering or performing
platform work.
Reasoning/comments:
1) DK proposes amemding article 6(4) in order to take national labour market models into account. In DK
trade unions and worker’s representatives have a special role compared to other representatives.
Article 7
Human monitoring of automated systems
1.
Member States shall ensure that digital labour platforms based on a risk assessment regularly
monitor and evaluate the impact of individual decisions taken or supported by automated
monitoring and decision-making systems, as referred to in Article 6(1), on working
conditions.
2.
Without prejudice to Council Directive 89/391/EEC and related directives in the field of
safety and health at work, digital labour platforms shall:
(a) evaluate the risks of automated monitoring and decision-making systems to the safety
and health of platform workers, in particular as regards possible risks of work-related
accidents, psychosocial and ergonomic risks;
(b) assess whether the safeguards of those systems are appropriate for the risks identified in
view of the specific characteristics of the work environment;
(c) introduce appropriate preventive and protective measures.
They shall not use automated monitoring and decision-making systems in any manner that
puts undue pressure on platform workers or otherwise puts at risk the physical and mental
health of platform workers.
3.
Member States shall require digital labour platforms to ensure sufficient human resources for
monitoring the impact of individual decisions taken or supported by automated monitoring
and decision-making systems in accordance with this Article. The persons charged by the
digital labour platform with the function of monitoring shall have the necessary competence,
training and authority to exercise that function. They shall enjoy protection from dismissal,
disciplinary measures or other adverse treatment for exercising their funtion outlined in this
article in accordance with national law and practice.
Reasoning/comments:
1) Article 7(1), seems unclear as to the intended scope of the digital labour platforms’ obligation to
“monitor and evaluate the impact of individual decisions”. DK proposes adding a risk assessment to
help determine the scope of the obligations.
2) Regarding the use of the term “undue pressure” DK would suggest to consider a clarification of
what is meant by this, e.g. in a recital.
3) In article 7(3) it is not clear to us, whether the persons should be protected from dismissal etc. in
relation to any decision, including decisions not protected by the directive. DK proposes amending
this para to clarify.
Article 8
Human review of significant decisions
1.
Member States shall ensure that platform workers have the right to obtain an explanation from
the digital labour platform for any decision taken or supported by an automated decision-
making system that significantly affects the platform worker’s working conditions, as referred
to in Article 6(1), point (b). In particular, Member States shall ensure that digital labour
platforms provide platform workers with access to a contact person designated by the digital
labour platform to discuss and to clarify the facts, circumstances and reasons having led to the
decision. Digital labour platforms shall ensure that such contact persons have the necessary
competence, training and authority to exercise that function.
Digital labour platforms shall provide the platform worker with a written statement of the
reasons for any decision taken or supported by an automated decision-making system to
restrict, suspend or terminate the platform worker’s account, any decision to refuse the
remuneration for work performed by the platform worker, any decision on the platform
worker’s contractual status or any decision with similar effects.
2.
Where platform workers are not satisfied with the explanation or the written statement of
reasons obtained or consider that the decision referred to in paragraph 1 infringes their rights,
they shall have the right to request the digital labour platform to review that decision. The
digital labour platform shall respond to such request by providing the platform worker with a
substantiated reply without undue delay of receipt of the request.
3.
Where the decision referred to in paragraph 1 infringes the platform worker’s rights, the
digital labour platform shall rectify that decision without delay or, where such rectification is
not possible, offer adequate compensation.
4.
This Article shall be without prejudice to dismissal procedures laid down in national law and
practices or collective agreements.
Reasoning/comments:
1) An ultimate deadline of one week seems very short. DK proposes deleting the specific time
indication “and in any event withing one week” making “undue delay” the decisive factor and
making the provision more flexible.
2) DK proposes adjusting 8(4) in order to take national labour market models into account.
Article 9
Information and consultation
1.
Without prejudice to the rights and obligations under Directive 2002/14/EC, Member States
shall ensure information and consultation of platform workers’ representatives or, where there
are no such representatives, of the platform workers concerned by digital labour platforms, on
decisions likely to lead to the introduction of or substantial changes in the use of automated
monitoring and decision-making systems referred to in Article 6(1), in accordance with this
Article.
2.
For the purposes of this Article, the definitions of ‘information’ and ‘consultation’ as laid
down in Article 2, points (f) and (g), of Directive 2002/14/EC shall apply. The rules laid
down in Article 4(1), (3) and (4), Article 6 and Article 7 of Directive 2002/14/EC shall apply
accordingly.
3.
The platform workers’ representatives or the platform workers concerned may be assisted by
an expert of their choice, in so far as this is necessary for them to examine the matter that is
the subject of information and consultation and formulate an opinion. Where a digital labour
platform has more than 500 platform workers in a Member State, the expenses for the expert
shall be borne by the digital labour platform, provided that they are proportionate.
Regarding art. 9(3):
1) DK finds it necessary to clarify the text as to when an expert can be involved in order to formulate
an opinion. According to article 9(1) information and consultation must take place not only on
decisions to introduce or substantial change […], but also on decisions “likely to lead” to the
introduction or change. This seems to be a very low threshold for the platform to bare the expenses
of such an expert’s opinion.
2) At SQWP 14 July the Commission indicated they would look into similar provisions in other
Directives. DK looks forward to the Commission’s follow-up on this
Reasoning/comments:
1) Article 10 sets out which rights also apply to the solo self-employed. Normally, provisions in labour
law directives only apply to workers. DK propose deleting the provision as it risks creating a “third
category”, where the solo self-employed obtain workers rights, which they under normal contractual
circomstances could agree upon in accordance with national contractual law. Labour law directives
should only contain rights for workers.
CHAPTER IV
TRANSPARENCY ON PLATFORM WORK
Article 11
Declaration of platform work
Without prejudice to Regulations (EC) No 883/20041 and 987/20092 of the European Parliament and of the
0F
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Council, Member States shall require digital labour platforms which are employers to declare work
performed by platform workers to the competent authorities of the Member State in which the work is
performed and to share relevant data with those authorities, in accordance with the rules and procedures laid
down in the law of the Member States concerned.
Reasoning/comments:
1) Does the directive entail a new registration obligation in addition to those that already exist in the
member states?
2) The chapter refers in several places to social protection/social protection authorities. This should be
changed to “competent authorities”.
Article 12
Access to relevant information on platform work
1.
Where competent authorities exercise their functions in ensuring compliance with legal
obligations applicable to the employment status of persons performing platform work and
where platform workers’ representatives exercise their representative functions, Member
States shall ensure that digital labour platforms make the following information available to
them:
(a) the number of persons performing platform work through the digital labour platform
concerned on a regular basis and their contractual or employment status;
(b) the general terms and conditions applicable to those contractual relationships, provided
that those terms and conditions are unilaterally determined by the digital labour
platform and apply to a large number of contractual relationships.
2.
The information shall be provided for each Member State in which persons are performing
platform work through the digital labour platform concerned. The information shall be
updated at least every six months, and, as regards paragraph 1, point (b), each time the terms
and conditions are substantially modified.
1
Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April
2004 on the coordination of social security systems (OJ L 166, 30.4.2004, p. 1).
2
Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16
September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004
on the coordination of social security systems (OJ L 284, 30.10.2009, p. 1).
3.
Competent authorities and platform workers’ representatives shall have the right to ask digital
labour platforms for additional clarifications and details regarding any of the data provided.
The digital labour platforms shall respond to such request within a reasonable period of time
by providing a substantiated reply.
4.
With regard to digital labour platforms which are micro, small or medium-sized enterprises,
Member States may provide that the periodicity for updating information in accordance with
paragraph 2 is reduced to once every year.
Reasoning/comments:
1) 12.2: It is unclear whether any change will require an update “each time” they are modified.
DK suggest adding a qualitative restriction so that insignificant/minor changes do not require
immediate updates.
CHAPTER V
REMEDIES AND ENFORCEMENT
Article 13
Right to redress
Without prejudice to Articles 79 and 82 of Regulation (EU) 2016/679, Member States shall ensure
that persons performing platform work, including those whose employment or other contractual
relationship has ended, have access to effective and impartial dispute resolution and a right to
redress, including adequate compensation, in the case of infringements of their rights arising from
this Directive.
Article 14
Procedures on behalf or in support of platform workers
1.
Without prejudice to Article 80 of Regulation (EU) 2016/679, Member States shall ensure
that worker’s representatives of or other legal entities which have, in accordance with the
criteria laid down by national law or practice, a legitimate interest in defending the rights of
platform workers, may engage in any judicial or administrative procedure to enforce any of
the rights or obligations arising from this Directive. They may act on behalf or in support of a
person performing platform work in the case of an infringement of any right or obligation
arising from this Directive, with that person’s approval or according to national law or
practice.
2.
Workers representatives of shall also have the right to act on behalf or in support of several
persons performing platform work, with those persons’ approval or in accordance with
national law and practice.
Reasoning/comments:
1) DK proposes that the self-employed is excluded from the directive, which has been taken into
account in the following.
2) DK proposes amending article 14 (1) and (2) in order to take national labour market models into
account.
3) In Denmark, pay and working conditions of Danish workers are regulated through collective
agreements It follows from the Danish Administration of Justice Act that trade unions may act as
agents representing their members in cases concerning their members’ employment and working
conditions, etc. In addition, it follows from general principles of association and employment law
that for workers who are members, a trade union has powers to act on the workers’ behalf.
Similarly, employers’ organisations may to act on behalf of a single employer.
4) It is the parties, i.e. the unions and the employers organisations/employers who decide if they want
to conclude an agreement and and are responsible for the compliance of the collective agreement.
Thus, it is the parties who have entered into the agreement who have rights and obligations under a
collective agreement, which means that the right to bring cases before the Industrial Court or the
industrial arbitration system is vested in the organisations of workers and employers on behalf of
both members and non-members to ensure that the collective agreement is observed.
5) The organisations have entered into the collective agreements in question, and the parties to the
agreements are those who are most qualified to assess whether a collective agreement has been
breached or not, and whether the un-derlying assumptions have been set aside. If a union does not
intend to pursue a case concerning breach of the collective agreement, a member or non-member
may bring his/her own case before the regular courts. However, the worker cannot, as an individual,
bring a case before the Industrial Court or an industrial arbitration tribunal. The principle of
approval from the person concerned is therefore a breech with the fundamental principles in the
Danish model.
Article 15
Communication channels for platform workers
Member States shall take the necessary measures to ensure that digital labour platforms create the
possibility for platform workers to contact and communicate with each other, and to be contacted by
worker’s representatives, through the digital labour platforms’ digital infrastructure or similarly
effective means, while complying with the obligations under Regulation (EU) 2016/679. Member
States shall require digital labour platforms to refrain from accessing or monitoring those contacts
and communications.
Reasoning/comments:
1) Access to evidence is a matter which should be left for national procedural law. DK
therefore agree with the Swedish proposal to delete this article.
Article 17
Protection against adverse treatment or consequences
Member States shall introduce the measures necessary to protect platform workers, including their
representatives, from any adverse treatment by the digital labour platform and from any adverse
consequences resulting from a complaint lodged with the digital labour platform or resulting from
any proceedings initiated with the aim of enforcing compliance with the rights provided for in this
Directive.
Article 18
Protection from dismissal
1.
Member States shall take the necessary measures to prohibit the dismissal or its equivalent
and all preparations for dismissal or its equivalent of platform workers, on the grounds that
they have exercised the rights provided for in this Directive.
2.
Platform workers who consider that they have been dismissed, or have been subject to
measures with equivalent effect, on the grounds that they have exercised the rights provided
for in this Directive, may request the digital labour platform to provide duly substantiated
grounds for the dismissal or the equivalent measures. The digital labour platform shall
provide those grounds in writing.
3.
Member States shall take the necessary measures to ensure that, when platform workers
referred to in paragraph 2 establish, before a court or other competent authority or body,
facts from which it may be presumed that there has been such a dismissal or equivalent
measures, it shall be for the digital labour platform to prove that the dismissal or equivalent
measures were based on grounds other than those referred to in paragraph 1.
4.
Paragraph 3 shall not prevent Member States from introducing rules of evidence which are
more favourable to platform workers.
5.
Member States shall not be required to apply paragraph 3 to proceedings in which it is for
the court or other competent authority or body to investigate the facts of the case.
6.
Paragraph 3 shall not apply to criminal proceedings, unless otherwise provided by the
Member State.
Article 19
Supervision and penalties
1.
The supervisory authority or authorities responsible for monitoring the application of
Regulation (EU) 2016/679 shall also be responsible for monitoring the application of Article
6, Article 7(1) and (3) and Articles 8 and 10 of this Directive, in accordance with the relevant
provisions in Chapters VI, VII and VIII of Regulation (EU) 2016/679. They shall be
competent to impose administrative fines up to the amount referred to in Article 83(5) of
that Regulation.
2.
The authorities referred to in paragraph 1 and national competent authorities shall, where
relevant, cooperate in the enforcement of this Directive, within the remit of their respective
competences, in particular where questions on the impact of automated monitoring and
decision-making systems on working conditions or on rights of platform workers arise. For
that purpose, those authorities shall exchange relevant information with each other, including
information obtained in the context of inspections or investigations, either upon request or
at their own initiative.
3.
Member States shall lay down the rules on penalties applicable to infringements of national
provisions adopted pursuant to provisions of this Directive other than those referred to in
paragraph 1 or of the relevant provisions already in force concerning the rights which are
within the scope of this Directive. The penalties provided for shall be effective, proportionate
and dissuasive.
CHAPTER VI
FINAL PROVISIONS
Article 20
Non-regression and more favourable provisions
1.
This Directive shall not constitute valid grounds for reducing the general level of protection
already afforded to workers within Member States.
2.
This Directive shall not affect the Member States’ prerogative to apply or to introduce laws,
regulations or administrative provisions which are more favourable to platform workers, or
to encourage or permit the application of collective agreements which are more favourable
to platform workers, in line with the objectives of this Directive.
3.
This Directive is without prejudice to any other rights conferred on platform workers by
other legal acts of the Union.
Article 21
Transposition and implementation
1.
Member States shall bring into force the laws, regulations and administrative provisions
necessary to comply with this Directive by [2 years after entry into force] at the latest. They
shall immediately inform the Commission thereof.
When Member States adopt those provisions, they shall contain a reference to this Directive
or be accompanied by such a reference on the occasion of their official publication. The
methods of making such reference shall be laid down by Member States.
2.
Member States shall communicate to the Commission the text of the main provisions of
national law which they adopt in the field covered by this Directive.
3.
Member States shall, in accordance with their national law and practice, take adequate
measures to ensure the effective involvement of the social partners and to promote and
enhance social dialogue with a view to implementing this Directive.
4.
Member States may entrust the social partners with the implementation of this Directive,
where the social partners jointly request to do so and provided that Member States take all
necessary steps to ensure that they can at all times guarantee the results sought under this
Directive.