Brussels, 10 February 2023
Interinstitutional files:
2021/0414 (COD)
WK 1899/2023 INIT
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SOC
EMPL
MI
DATAPROTECT
CODEC
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MEETING DOCUMENT
From:
General Secretariat of the Council
To:
Delegations
N° Cion doc.:
ST 14450 2021 INIT
Subject:
Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE
COUNCIL on improving working conditions in platform work
In view of the Social Question Working Party meeting of 13 February, delegations will find attached the
contributions received from the CY, CZ, DK, EE, ES, FI, HR, HU, IT, LU, LV, NL, PL, RO and SI
delegations.
WK 1899/2023 INIT
LIFE.4 CHS/mk
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EN
Comments from the CY delegation
1.
Article 4(1), i.e. the design of the criteria to trigger the presumption
Article 4(1)
1 sets out the criteria for triggering the legal presumption, which is construed
as a means to facilitate the determination of the existence of an employment relationship
between a digital labour platform and a person performing platform work. In order to
find a compromise between delegations’ diverging views, changes were made to the
Commission proposal. Notably, the notion of “controlling the performance of work” as
an “umbrella principle” has been deleted from the chapeau; criterion (d) was split into
three separate criteria. Consequently, the threshold for fulfilling the criteria was raised
from 2 out of 5 to 3 out of 7.
Questions
a)
Do you consider that the criteria are now designed in a way that the right people,
i.e. mostly the bogus self-employed, will be covered by the legal presumption?
Yes. We believe the bogus self-employed are covered.
b)
If not, please explain why and provide concrete examples, under the current
national legislation, of bogus self-employed who would not benefit from the legal
presumption or, alternatively, of genuine self-employed who would wrongly be
affected by the legal presumption.
Does not apply.
c)
If you have answered “no” to question a), how could the criteria and the threshold
be modified in order to target all bogus self-employed while excluding genuine
self-employed?
Does not apply.
2.
Article 4(2a), i.e. fulfilling the criteria of the presumption as a result of compliance
with union law, national law or collective agreements
Article 4(2a)
2 takes inspiration from recital 25 of the Commission proposal. At
delegations’ request, the text of recital 25 was moved to the operative part and its
wording has been clarified and amended to also cover legal obligations under collective
agreements. While some delegations maintain that this provision is important as it
prevents digital labour platforms from being wrongfully designated as employers, others
worry it could create a loophole which digital labour platforms could exploit to escape
taking on the responsibilities of an employer.
Questions
a)
Can you provide examples when this provision would be applied in your Member
State under the current legislation?
No, according to our current state of Law we don’t have any examples at this
moment.
b)
Is this provision necessary? If so, could this issue be addressed in other ways in
the directive?
We could be flexible on this. It could also be addressed by MS nationally.
1
In its version of document 15338/22 REV1
2
In its identical version of documents 14514/22 and 15338/22 REV1
3.
Article 3(1) and 4a(1), i.e. the material effects of a reclassification and the
application of the presumption in tax, criminal law and social security proceedings
Article 3(1) and recital 19
3 set out
i.a. the material effects of a reclassification, stating
that Member States shall not only have national procedures in place for the correct and
clear classification of the employment status of persons performing platform work, but
also that they shall ensure that when an employment relationship is established, those
persons enjoy the relevant rights deriving from Union and national law applicable to
workers. Article 4a(1)
4, on the other hand, sets out the scope of application of the legal
presumption, which is a procedural instrument to be applied within existing procedures
in place in the Member States to facilitate the correct determination of his or her
employment status.
At the request of some delegations, article 4a(1) 2nd subparagraph was introduced in
order to exclude the use of the legal presumption in
tax, criminal and social security
proceedings. These delegations brought forward mainly two reasons. Firstly, they
argued that excluding such fields from the scope of application of the legal presumption
would safeguard Member States’ competences in those areas. Secondly, they argued
that in some Member States, the criteria for the existence of an employment relationship
in a specific field of law might differ from another area of law, and that, therefore, the
application of the legal presumption to these types of proceedings should be left to the
discretion of Member States.
As mentioned above, the legal presumption is a way of easing the access for bogus self-
employed to the correct classification of their employment status. As reclassification
systems for bogus self-employed as workers likely exist already today in Member
States’ legal systems, the Presidency would like to understand how the different
Member States deal with it today. Furthermore, the Presidency would also like to get the
delegations’ views on article 3(1) and the corresponding recital.
Questions
a)
The legal presumption is to be applied in all relevant administrative and judicial
proceedings where the correct determination of the employment status is at stake.
In proceedings in which fields of law would the correct determination of the
employment status currently be at stake in your Member State?
The Social Insurance Law. According to the practice followed we don’t consider
that the employment status currently will be at stake.
b)
Is the notion of employment relationship the same in all these different fields of
law? If not, please spell out in which fields of law these notions are different from
each other.
Yes.
c)
For Member States which have different notions of employment relationship in
different fields of law: how do you deal currently in practice with a person who
has been reclassified as a worker based on the notion of employment relationship
in one field of law in later proceedings concerning other fields of law,
e.g. tax,
criminal and social security proceedings?
Does not apply.
3
In their version of document 15338/22 REV1.
4
In its version of document 15338/22 REV1.
d)
Do you consider that article 3(1), stating that the Member States shall ensure that
platform workers enjoy the rights deriving from relevant Union law, nation law,
collective agreements and practice applicable to workers, and the corresponding
recital 19, are sufficiently clear or would the Directive benefit from clarifying the
term “relevant” and, if so, how could this be done?
No, the term “relevant” is already well clarified.
4.
Article 4a(2), i.e. the discretion not to apply the presumption in ex officio situations
Another question relates to the discretion of a competent national administrative
authority, as laid down in Article 4a(2)
5, not to apply the presumption, if the double
condition is fulfilled that 1) they verify compliance or enforce relevant legislation on
their
own initiative and 2) it is evident that the rebuttal would be successful. The
rationale of this provision is to avoid unnecessary administrative burden. However, in
proceedings initiated by persons performing platform work themselves in view of their
reclassification as worker, the competent national administrative authority is obliged to
apply the legal presumption.
Some Member States have requested the deletion of this provision, stating that the
protection of persons performing platform work would be lowered if authorities are not
in all instances obliged to apply the legal presumption.
Questions
a)
Do you think that this provision could create a gap in the protection of persons
performing platform work and if so, in what way?
No.
5
In its version of documents 14514/22 to 15338/22 REV1.
Comments from the CZ delegation
1. Article 4(1), i.e. the design of the criteria to trigger the presumption
b) If not, please explain why and provide concrete examples, under the current national legislation,
of bogus self-employed who would not benefit from the legal presumption or, alternatively, of
genuine self-employed who would wrongly be affected by the legal presumption.
CZ Position
Most of the selected criteria, and in particular the criteria in letter a), b) and c), characterize the
rational conditions for the relationship between any entrepreneurial subcontractor and the
entrepreneurial subscriber as its business partner. In this respect, determining the upper limit of the
service price, setting rules regarding the appearance, behaviour and performance of the work, as
well as verifying the quality of the work performed, are important tools for ensuring customer
protection and an acceptable standard of the services provided.
It is therefore possible that the rebuttable legal presumption set up in this way will subsequently be
applied in relation to most platforms, which brings with it the potential problem that many workers
who will be newly classified as employees will not actually perform dependent work.
It is essential to fulfil all the criteria of the law at the same time in order to assess whether the
performance of work meets the conditions of dependent work in the Czech legal. This means that if
the self-employed person were to perform work based on the platform, the criteria in letter a), b)
and c) would be fulfilled and at the same time the signs of dependent work would not necessarily be
fulfilled.
There is the increased risk related to that the reassessment of the status of a person working for the
platform based on a rebuttable presumption will only be temporary, where the presumption will
subsequently be rebutted, as it will not be dependent work within the meaning of section 2 of the
Labour Code. Ultimately, such a construction may introduce a higher level of legal uncertainty into
these relationships, which is certainly not desirable.
On the other hand, however, digital work platforms classify persons working through them as self-
employed. In the Czech Republic, the vast majority of persons working for platforms are self-
employed, although experience suggests that some platforms de facto manage, control and
supervises the performance of workers. This is so-called false/bogus self-employment, which
occurs when a person is declared self-employed while fulfilling the conditions characteristic of an
employment relationship in order to avoid certain legal or tax obligations.
In a spirit of compromise, the Czech Republic is ready to accept above mentioned criteria,
taking into account that the number of criteria for activating the legal presumption has
increased.
2. Article 4(2a), i.e. fulfilling the criteria of the presumption as a result of compliance with
union law, national law or collective agreements a) Can you provide examples when this provision would be applied in your Member State under the
current legislation?
CZ Position
In relation to that provision, we do not have any specific examples of the obligations that the
platform must comply with in order to meet the requirements of EU law or national law, and which
could at the same time be considered as fulfilling the criteria set out in Article 4(1).
3. Article 3(1) and 4a(1), i.e. the material effects of a reclassification and the application of the
presumption in tax, criminal law and social security proceedings
c) For Member States which have different notions of employment relationship in different fields of
law: how do you deal currently in practice with a person who has been reclassified as a worker
based on the notion of employment relationship in one field of law in later proceedings concerning
other fields of law, e.g. tax, criminal and social security proceedings?
CZ Position
For most administrative and judicial proceedings, the definition of employee under the Labour Code
is relevant in the Czech legal system. Proceedings that define the employee more broadly than the
Labour Code do not affect the employee‘s status in other proceedings. In the area of social and
health insurance, the definition of an employee for the purposes of Act No. 589/1992 Coll., on
social security premiums and contribution to state employment policy, as amended, and Act No.
187/2006 Coll., on sickness insurance, as amended, is more broadly defined. Act No. 589/1992
Coll. considers as employees, in addition to employees in an employment relationship, also other
persons, e.g. voluntary care service workers, persons serving a sentence of imprisonment assigned
to work and persons caring for a child. While none of these categories of persons would fulfill the
characteristics of an employee under the Labour Code. Similarly, in the case of Act No. 187/2006
Coll.
Comments from the DK delegation
1. Article 4(1), i.e. the design of the criteria to trigger the presumption
a) Do you consider that the criteria are now designed in a way that the right people, i.e. mostly the
bogus self-employed, will be covered by the legal presumption?
DK prefers the Commission's proposal with five criteria, which we believe strikes the right balance and
covers the right persons by the presumption. However, in order to reach a compromise DK could support
the text as it was submitted to EPSCO. DK find it important to maintain a clear and effective legal
presumption.
2. Article 4(2a), i.e. fulfilling the criteria of the presumption as a result of compliance with union law,
national law or collective agreements a) Can you provide examples when this provision would be applied in your Member State under the current
legislation?
b) Is this provision necessary? If so, could this issue be addressed in other ways in the directive?
DK prefers to revert to the Commission’s original proposal, in which measures or rules which are
required by law or which are necessary to safeguard the health and safety of the recipients of the service
should not be understood as controlling the performance of work.
The current article is much broader and concerns all union law, national law and collective
agreements, which weakens the legal presumption.
3. Article 3(1) and 4a(1), i.e. the material effects of a reclassification and the application of the
presumption in tax, criminal law and social security proceedings
a) The legal presumption is to be applied in all relevant administrative and judicial proceedings where the
correct determination of the employment status is at stake. In proceedings in which fields of law would
the correct determination of the employment status currently be at stake in your Member State?
b) Is the notion of employment relationship the same in all these different fields of law? If not, please spell
out in which fields of law these notions are different from each other.
c) For Member States which have different notions of employment relationship in different fields of law:
how do you deal currently in practice with a person who has been reclassified as a worker based on the
notion of employment relationship in one field of law in later proceedings concerning other fields of law,
e.g. tax, criminal and social security proceedings?
d) Do you consider that article 3(1), stating that the Member States shall ensure that platform workers
enjoy the rights deriving from relevant Union law, nation law, collective agreements and practice
applicable to workers, and the corresponding recital 19, are sufficiently clear or would the Directive
benefit from clarifying the term “relevant” and, if so, how could this be done?
In Denmark, work is provided either in an employment relationship or as a self-employed person. If
the work is delivered in an employment relationship, the
labour law rules apply.
In Danish labour law, there is no cross-is cutting definition of who is considered an employee, as
each individual law defines its individual scope. The definition can thus vary between the various
labour laws. In addition, certain laws, e.g. the holiday law, is implementing EU regulation, and the
definition of employee therefore reflects the concept that has been developed through the practice of
the EU Court of Justice.
Finally, the laws allow - where relevant - to implement via collective agreement, after which the
collective agreement becomes the legal basis for enforcement and interpretation that takes place in
the industrial law system.
It is the Danish courts, the industrial law system, the Employment Committee of the Danish
Appeals Board that assess the employment status in specific cases. The assessment of employment
status is also different in labour law and
tax law. This means that there may be situations where a
person is considered an employee under labor law, but not under tax law (and vice versa).
The fact that the legal areas have different approaches and criteria for the concept of employee is
justified by the fact that the rules pursue different objectives. However, the criteria for the concept
of employee in terms of tax law and labor law are similar, and in both cases, emphasis will have to
be placed on the actual circumstances.
If a person wants employment status clarified in terms of both tax law and labor law, the person
must therefore test the employment status in both a tax law case and in a labor and labour law case.
The burden of proof differs between tax law and labor law. In a tax law case, the burden of proof is
placed on the employer. In a labour law case it is on the self-employed.
The
social security rules grant rights on the basis of work as both employed and self-employed. The
rights are based on an accrual principle. Most social security rules use a concept of employee based
on labour law, but when calculating hours and income, the rules refer to the income that is
registered with the tax authorities.
It should also be noted that Denmark has broad protection as far as social security is concerned, and
that the self-employed are also protected and can, for example, obtain the right to unemployment
benefits.
DK finds the provision sufficiently clear.
4. Article 4a(2), i.e. the discretion not to apply the presumption in ex officio situations
a) Do you think that this provision could create a gap in the protection of persons performing platform
work and if so, in what way?
DK supports art. 4a (2). We do not think that the discretion not to apply the presumption creates a
gap. If the authorities do not intervene in a case, the platform worker will always have the
opportunity to request application of the presumption rule.
Comments from the EE delegation
Answers by the Estonian delegation to the questions 1b), 2a) and 3c), 08.02.23
Presidency note 5273/23 of 1 February 2023 for preparing SQWP on 13 February 2023
1. Article 4(1), i.e. the design of the criteria to trigger the presumption
Questions
a) Do you consider that the criteria are now designed in a way that the right people, i.e. mostly
the bogus self-employed, will be covered by the legal presumption?
b) If not, please explain why and provide concrete examples, under the current national
legislation, of bogus self-employed who would not benefit from the legal presumption or,
alternatively, of genuine self-employed who would wrongly be affected by the legal
presumption.
In Estonia, there is no specific regulation for platform workers. According to the Employment
Contracts Act, if a person does work for another person which, under the circumstances, can be
expected to be done only for remuneration, it is presumed to be an employment contract. However,
in case of doubt, the labour inspectorate will evaluate all circumstances together before issuing a
precept ordering the company to fulfil employer´s obligations. Also, in case of a dispute, the labour
dispute committee or court will assess the relationship between parties, taking into account all
circumstances.
We consider it important that the criteria for the legal presumption of an employment contract in
platform work characterize, as precisely as possible, the contractual employment relationship.
Otherwise it is a high risk that we cover the majority of self-employed with legal presumption,
which would cause legal uncertainty and create unnecessary burden for all parties.
We believe that some of the criteria, (the first three regarding pay, rules on appearance and some
other aspects and quality of work) are also characteristic and common in case of genuine self-
employment. Therefore, the threshold should be at least four out of seven.
In Estonia, taxi drivers usually work under their own company or are self-employed and use
multiple platforms simultaneously. If they were considered as employees, it would be unclear which
of the platforms would be their employer. It would also hinder their possibility to work for multiple
platforms, which would decrease their income.
2. Article 4(2a), i.e. fulfilling the criteria of the presumption as a result of compliance with
union law, national law or collective agreements.
Question
a) Can you provide examples when this provision would be applied in your Member State
under the current legislation?
We find it important to leave the principle of article 4(2a) in the operative part, since it is essential
to reduce the risk that we would cover the majority of genuine self-employed with legal
presumption. Below are some examples illustrating our position.
Firstly, regarding couriers and food safety, some food may need special temperature while
transporting them (e.g. frozen products as well as warm foods that need certain internal
temperature). The delivery of foods by a courier must be properly performed (e.g. using thermal
transportation bags).
Furthermore, regarding drivers, our Road Traffic Act states that the driver of a motor vehicle must
have a valid document certifying their right to drive. Vehicles are also subject to compulsory
insurance and must pass the roadworthiness test. The Public Transport Act states requirements for
Taxi Services according to which a person must have a vehicle card (certifying the right to use the
specific vehicle for the provision of taxi services) and a service provider card (proving the right to
work as a driver providing taxi services). Taxi drivers must fill these obligations.
Lastly, the Consumer Protection Act applies to the offering and sale of goods and services. For
example, the Act states that consumers have the right to obtain information on the safety of goods
and services offered as well as on aspects concerning protection of health, property and economic
interests. Most of such information is usually available via the app, but consumers may still
question the courier regarding product or delivery information etc. Also, consumers have the right
to obtain goods and services which meet the requirements, are harmless to the life, health, and
property of the consumers.
If a platform becomes aware that the service provider is not providing the service in a safe way, e.g
driving under the influence, seriously infringing traffic rules or expressing predatory behaviors, then
the platform must be able to eliminate that service provider from the platform for the safety of
consumers.
It is important that services provided through platforms are high-quality and safe, therefore
platforms may require the person performing platform work to respect specific rules concerning the
performance of work and supervise compliance with mentioned requirements. At the same time,
supervision of such requirements is characteristic to all contracts, regardless of whether the person
performing platform work is an employee or a service provider.
3. Article 3(1) and 4a(1), i.e. the material effects of a reclassification and the application of the
presumption in tax, criminal law and social security proceedings
Question
c) For Member States which have different notions of employment relationship in different
fields of law: how do you deal currently in practice with a person who has been reclassified as
a worker based on the notion of employment relationship in one field of law in later
proceedings concerning other fields of law, e.g. tax, criminal and social security proceedings?
In Estonian legal system there is no different notions of employment relationship.
According to the Taxation Act, if it is evident from the content of a transaction or act that the
transaction or act is performed for the purposes of tax evasion, conditions that correspond to the
actual economic content of the transaction or act apply upon taxation. As the tax authority has the
right to supervise tax transactions according to the actual economic content, the Supreme Court has
found that the Tax and Customs Board can also requalify contracts formally concluded between two
legal entities to be employment contracts. In these cases, the requalifying the contract is still based
on the one notion of employment relationship provided in the labour law.
Comments from the ES delegation
1.Article 4(1), i.e. the design of the criteria to trigger the presumption
Question b If not, please explain why and provide concrete examples, under the current
national legislation, of bogus self-employed who would not benefit from the legal
presumption or, alternatively, of genuine self-employed who would wrongly be affected by
the legal presumption.
Answer:
In our view, workers performing platform work under the control and direction of a digital
labour platform should be more clearly covered by the legal presumption set out in article
4(1).
In its latest version, not all the criteria considered have the same relevance when it comes
to support evidence of the existence of an employment relationship, resulting in an uneven
basis.
Moreover, having raised the requirements from 2 out of 5 to 3 out of 7, might exclude
cases where two conclusive indicators are present. For instance:
Two essential elements of an employment relationship would not be considered
sufficient to trigger the presumption as the determination of the level of
remuneration or to limit the discretion to choose one’s working hour (salary and
working hours)
Or instructions given during the performance of work and supervision of that
performance by the digital labour platform would not be considered sufficient to
trigger the presumption by itself.
The criterion c) is limited to the platform's supervision of the execution of the work and may
restrict the application of the criterion with respect to the original wording proposed by
COM.
Criterion d) is an open criterion that refers to the restriction of the worker's freedom to
organize his or her own work on platforms in non-exhaustive terms. The criterion mention
in particular three specific ways of restricting this freedom (which are three of the four
criteria of the CJEU Case Yodel), but allowing that there may be other ways of restricting
the freedom.
The Case Yodel establishes that a worker will be considered self-employed if he/she has
four basic freedoms (the restriction of which would be included in criteria d) and e) of the
Commission's proposal), provided that it is not possible to establish the existence of a
subordinate relationship.
Therefore, according to this case, the restriction of any of these four freedoms means that
the worker is not truly self-employed but an employee. If we were to apply this
interpretation strictly the concurrence of one of the restrictions of criteria d) or e) would be
sufficient to apply the presumption of employment. However, the Commission also wanted
to include other criteria a), b) and c) that determine the company's control over the
employee, since these criteria are also key part of the case law of the CJEU as regards
the status of a worker.
We consider that this approach is adequate as it will allow the application of the labour
presumption to a majority of bogus self-employed in line with the CJEU case law.
We must avoid the deviation from what is indicated in the Case Yodel, so that the
concurrence of one of the criteria indicated therein does not require, cumulatively, a
disproportionate number of circumstances to be present in order to be able to assess the
labor nature of the case.
2.Article 4(2a), i.e. fulfilling the criteria of the presumption as a result of compliance
with union law, national law or collective agreements
Question a): Can you provide examples when this provision would be applied in your
Member State under the current legislation?
Answer:
This provision is utterly unnecessary. National authorities must consider the notion of
‘controlling the performance of work’ when applying the presumption, so they will analyse
whether a certain fact evidences that the platform controls the performance of work. We do
not deem that strict compliance with sectoral regulations to evidence per se such control.
For instance, a platform that verifies that a driver holds a valid driving licence would not
‘restrict the freedom to accept tasks’ for those without a license, nor would it be considered
that criterion (da) has been met as a result. The opposite would be an absurd
interpretation of the criteria.
The key to the interpretation of the criteria is the consideration of whether or not certain
facts show that the platform is controlling and directing the provision of work. No labour
authority or court is going to interpret the monitoring of strict compliance with the
regulations, i.e. on rest periods in the transport sector as an indication of employment,
because it does not derive from a company decision on how or when to work, but from the
regulations governing the exercise of a given activity or road safety. In other words,
because compliance with a rule does not imply control of work performance.
In the same way, a platform dedicated to offering the services of self-employed electricians
will not be complying with criterion d (limiting the freedom to accept or reject tasks) when it
refuses to offer the services of those who do not accredit compliance with the
administrative requirements for low-voltage installation companies or, in the transport
sector, when it does not offer dangerous goods transport tasks to those who do not
accredit the necessary authorisation. Nor would the practice of withholding tax on account
of personal income tax involve setting ceilings on remuneration (criterion a).
Criteria indicating that a digital labour platform controls the performance of work should be
included in the Directive in order to make the legal presumption operational and facilitate
the enforcement of workers’ rights. Those criteria should be inspired by Union and national
case law and take into account national concepts of the employment relationship. […]
Measures or rules which are required by law or which are necessary to safeguard the
health and safety of the recipients of the service should not be understood as controlling
the performance of work.
We believe that this provision allows the application of the presumption to be
circumvented. We find no explanation as to why rebuttal mechanisms are considered
inadequate or insufficient and, thus, why this ex ante exclusion would be necessary.
Moreover, if the aim of mentioning collective agreements is to strengthen collective
bargaining for the solo self-employed, it could be considered a much more effective
measure to reinforce in Chapters III and IV the rights of information and consultation of the
representatives of the self-employed, which have been eliminated in the latest versions of
the text. It does not seem that a legal presumption intended to protect workers could be a
threat to the promotion of collective bargaining by the solo self-employed as established
on the “Guidelines on the application of Union competition law to collective agreements
regarding the working conditions of solo self-employed persons”
3.Article 3(1) and 4a(1), i.e. the material effects of a reclassification and the
application of the presumption in tax, criminal law and social security proceedings
Question c):
For Member States which have different notions of employment relationship
in different fields of law: how do you deal currently in practice with a person who has been
reclassified as a worker based on the notion of employment relationship in one field of law
in later proceedings concerning other fields of law, e.g. tax, criminal and social security
proceedings?
Answer:
According to our legislation, the legal presumption will not be applicable in tax and social
security proceedings, but will have effects therein according to the scope of their
competences.
The notion of employment relationship is the competence of the labor
jurisdiction and is the same applicable to all legal fields.
The notion of employment relationship is the competence of the labor jurisdiction and is
the same applicable to all legal fields. So, the legal presumption will have effects in tax and
social security proceedings according to the scope of their competences.
The correct determination of the employment status is crucial in all fields where workers’
rights are at stake. It includes not only labour law regulations but also other domains like
social security, taxes, and even migration or criminal law.
The concept of employment relationship is determined according to the labour law
regulations. In other domains, regulations refer to the same concept as established by
labour law, keeping the legal system coherent.
Comments from the FI delegation
PLATFORM WORK DIRECTIVE
Finnish comments on the Presidency note 1.2.2023
in preparation of the meeting of the Social Questions Working Party on 13 February 2023
1. Article 4(1), i.e. the design of the criteria to trigger the presumption
Questions
a)
Do you consider that the criteria are now designed in a way that the right
people, i.e. mostly the bogus self-employed, will be covered by the legal
presumption?
Finland could have accepted the formulation as in the EPSCO Council 08.12.2022
PRESIDENCY ROOM DOCUMENT. We are also ready to examine the issue
further, taking better into account the criteria as defined by the ECJ in its case law.
b)
If not, please explain why and provide concrete examples, under the current
national legislation, of bogus self-employed who would not benefit from the
legal presumption or, alternatively, of genuine self-employed who would
wrongly be affected by the legal presumption.
-
c)
If you have answered “no” to question a), how could the criteria and the
threshold be modified in order to target all bogus self-employed while
excluding genuine self-employed?
2.
Article 4(2a), i.e. fulfilling the criteria of the presumption as a result of compliance
with union law, national law or collective agreements
Questions
a)
Can you provide examples when this provision would be applied in your
Member State under the current legislation?
The provision could cover for example requirements to guarantee the safety of
customers such as food hygiene in food deliveries or traffic safety in taxi services.
b)
Is this provision necessary? If so, could this issue be addressed in other ways
in the directive?
We are in favour of the formulation (recital 25b) in the EPSCO Council 08.12.
2022 PRESIDENCY ROOM DOCUMENT. However, we would like to suggest a
clarification to the formulation as follows:
(25b) When a digital labour platform fulfils any of the criteria referred solely as a
result of its compliance with a legal obligation under Union law, national law,
other than labour legislation, or collective agreements of genuine solo self-
employed, that criterion may not as such be understood as indicating that the
criteria of the legal presumption are fulfilled within the meaning of this Directive.
The aim of our proposal is to clarify that EU or national labour legislation can not
be referred in this connection, since the application of those instruments would
indicate the existence of an employment relationship.
3.
Article 3(1) and 4a(1), i.e. the material effects of a reclassification and the
application of the presumption in tax, criminal law and social security proceedings
Questions
a)
The legal presumption is to be applied in all relevant administrative and
judicial proceedings where the correct determination of the employment
status is at stake. In proceedings in which fields of law would the correct
determination of the employment status currently be at stake in your
Member State?
In Finland employment status is currently assessed in various fields, such as in the
application of labour legislation, some social benefits and contributions for the
funding of work pensions, in wage guarantee and work permit issues and also in
criminal cases related to employment offences (for example violations of health
and safety at work or discrimination in the workplace).
b)
Is the notion of employment relationship the same in all these different fields
of law? If not, please spell out in which fields of law these notions are
different from each other.
In taxation there is a slightly different concept of employment relationship in use.
Mostly the concept is based on the definition used in labour legislation.
We would like to add that we support the formulation as in the EPSCO Council
08.12.2022 PRESIDENCY ROOM DOCUMENT – which leaves room for
manoeuvre for the Member States to decide that the legal presumption shall not
apply in tax, criminal and social security proceedings.
We would however like to suggest that a reference to wage guarantee proceedings
would be included in the article and/or the corresponding recital 25c as follows:
Member States may decide that the legal presumption shall not apply in tax,
criminal, social security and wage guarantee proceedings.
(25c) In order to ensure access to Union law applicable to workers, the legal
presumption should apply in all relevant administrative or judicial proceedings
where the employment status of the person performing platform work is at stake.
While this Directive does not impose any obligation on Member States to apply
the legal presumption in tax, criminal and social security proceedings and in
wage guarantee proceedings protected by the directive 2008/94/EC of the
European Parliament and of the Council on the protection of employees in the
event of the insolvency of their employer, nothing in this Directive should
prevent Member States, as a matter of national law, from applying that
presumption in those or other administrative or judicial proceedings or from
recognising the results of proceedings in which the presumption has been applied
for the purposes of providing rights to reclassified workers under other areas of
law.
We consider it important that the directive does not set mandatory rules on other
fields, such as taxation legislation, which at least in Finland includes a separate
definition of employment relationship, as already explained above.
Furthermore, we still have concerns that the formulation of article 4a (1) and the
respective recital could imply that the legal presumption should be applied in
wage guarantee proceedings protected by the directive 2008/94/EC of the
European Parliament and of the Council on the protection of employees in the
event of the insolvency of their employer. As we have commented before, we
believe that wage guarantee proceedings are not intended to be that kind of
proceedings where the person performing platform work can get his/hers
employment status reclassified. On the other hand, wage guarantee may not
necessarily be interpreted as social security proceedings, where the Member States
would have the discretion not to apply the presumption.
c)
For Member States which have different notions of employment relationship
in different fields of law: how do you deal currently in practice with a person
who has been reclassified as a worker based on the notion of employment
relationship in one field of law in later proceedings concerning other fields of
law, e.g. tax, criminal and social security proceedings?
In Finland the decisions of authorities on the classification as a worker are not
binding on other authorities that make decisions based on their competence.
d)
Do you consider that article 3(1), stating that the Member States shall ensure
that platform workers enjoy the rights deriving from relevant Union law,
nation law, collective agreements and practice applicable to workers, and the
corresponding recital 19, are sufficiently clear or would the Directive benefit
from clarifying the term “relevant” and, if so, how could this be done?
We think that the article 3(1) and the corresponding recital 19 are sufficiently
clear.
4. Article 4a(2), i.e. the discretion not to apply the presumption in ex officio situations
Questions
a)
Do you think that this provision could create a gap in the protection of
persons performing platform work and if so, in what way?
We support the broad scope of the presumption. However, as a compromise, we
are ready to accept the previous formulation in document EPSCO Council 08.12.
2022 PRESIDENCY ROOM DOCUMENT: “
When verifying compliance with or
enforcing relevant legislation on their own initiative, competent national
administrative authorities shall enjoy a discretion not to apply the presumption,
when it is manifest, in view of previous judicial and administrative decisions, that
it would be successfully rebutted in accordance with paragraph 3.”
Comments from the HR delegation
HR ANSWERS – PWD for SQWP on February 13, 2023
1.b The proposed framework regulating the presumption of the existence of an employment relationship is
clearly and meaningfully defined, in a way that will ensure its effective application in relation to the target
group of people, i.e. bogus self-employed persons.
2.a No example in the national legislation.
3.c The Law on the Suppression of Undeclared Work (in force from 1st January 2023) prescribes what is
considered undeclared work and regulates measures for the suppression of undeclared work. In the
narrower sense, undeclared work is work that, given the nature and type of work and the authority of the
employer, has the characteristics of an employment relationship, but is not legally contracted or does not
have a valid legal basis, i.e. for which an appropriate application for mandatory insurance has not been
established in accordance with special regulations.
When the competent inspector determines the existence of undeclared work in the process of inspection,
it will be considered that the worker who performed such work was continuously in full-time employment
with the employer for the duration of six months preceding the day on which the inspection was carried
out and the fact of undeclared work established, unless the data clearly shows that the previous duration of
employment was shorter or longer.
Regarding the social protection of workers, the competent inspector will, within eight days, order the
employer to submit an application for mandatory pension insurance starting from the day that was
determined as the start of work.
The employer is obliged to submit an application for mandatory pension insurance and pay the prescribed
amount within three days from the date of delivery of the decision. The executive decision will be
submitted to the competent body authorized to determine the right to pension insurance (Croatian
Pension Insurance Institute), to the competent body authorized to determine the right to health insurance
(Croatian Institute for Health Insurance) and to the competent body authorized for the calculation of taxes
and contributions for mandatory insurance (Tax Administration) according to the employer's headquarters.
If the employer does not submit an application for mandatory pension insurance within the prescribed
period, the Croatian Pension Insurance Institute, based on the submitted executive decision, will ex officio
issue a decision on the recognition of the status of the insured, starting from the day specified as the start
of work in the aforementioned decision.
If the employer fails to fulfil the obligation to calculate and pay public duties, the Tax Administration
determines the total amount of the employer's obligation based on the submitted decision. The Tax
Administration will inform the Central Register of Insured Persons and the Croatian Pension Insurance
Institute about the determined and paid obligations based on the salary, according to the previously
mentioned decision.
If, during the inspection, the competent inspector determines the existence of a contractual relationship
between the client of the work and the executor of the work of a self-employed person, and there are
circumstances that indicate the existence of a covert employment relationship, he will inform the Tax
Administration.
Determining the characteristics of independent work for the purposes of the tax procedure:
In the event that the employer contracts other ways of performing work in order to use tax benefits
contrary to the purpose of the law for work that has the characteristics of independent work (e.g.
concealment of the employment relationship by the so-called lump sum trade institute), the Tax
Administration will carry out a procedure in which it will determine the characteristics of independent work
by collecting facts important for taxation and verification of the fulfilment of the elements of the criteria for
the characteristics of independent work in accordance with tax regulations.
If it is established that in a certain case it is a covert employment relationship, the Tax Administration will
issue a decision with the specified amount for receipts paid by the "employer", which is considered to be
paid for non-independent work. Public duties will be charged on that amount as if the craftsman is in
employment relationship.
Comments fro the HU delegation
Proposal for a Directive of the European Parliament and of the Council on improving
working conditions in platform work
Written comments from the Hungarian delegation (ST 2573/23)
1. Article 4(1), i.e. the design of the criteria to trigger the presumption
Article 4(1)
6 sets out the criteria for triggering the legal presumption, which is construed as a means
to facilitate the determination of the existence of an employment relationship between a digital
labour platform and a person performing platform work. In order to find a compromise between
delegations’ diverging views, changes were made to the Commission proposal. Notably, the notion
of “controlling the performance of work” as an “umbrella principle” has been deleted from the
chapeau; criterion (d) was split into three separate criteria. Consequently, the threshold for fulfilling
the criteria was raised from 2 out of 5 to 3 out of 7.
Question:
b) If not, please explain why and provide concrete examples, under the current national
legislation, of bogus self-employed who would not benefit from the legal presumption or,
alternatively, of genuine self-employed who would wrongly be affected by the legal
presumption.
The current threshold of 3/7 is still risks capturing the genuinely self-employed, especially as
the three first criteria are inherent to many genuine self-employed relationships in accordance
with national law. Increasing the threshold to a majority would require a sufficient threshold of
evidence be met and would future proof transposition where additional criteria would be added
by adjusting the threshold of evidence required as the criteria would increase.
Paragraph 1. point c) is still a matter of concern, because it is also specific for civil law
contracts that the principal checks the quality of the work performed. The emphasis of the
distinction between the two kinds of legal relationships is on the nature of the control, which is
not currently included in the point. The control is continuous, direct and detailed in the case of
an employment relationship, while the principal occasionally checks the performance of the
tasks and results subject to the assignment in case of a self-employed person.
2. Article 4(2a), i.e. fulfilling the criteria of the presumption as a result of compliance with
union law, national law or collective agreements
Article 4(2a)
7 takes inspiration from recital 25 of the Commission proposal. At delegations’
request, the text of recital 25 was moved to the operative part and its wording has been clarified
and amended to also cover legal obligations under collective agreements. While some
delegations maintain that this provision is important as it prevents digital labour platforms from
being wrongfully designated as employers, others worry it could create a loophole which digital
labour platforms could exploit to escape taking on the responsibilities of an employer.
6
In its version of document 15338/22 REV1
7
In its identical version of documents 14514/22 and 15338/22 REV1
Question:
a)
Can you provide examples when this provision would be applied in your Member State
under the current legislation?
The provisions on health and safety including ensuring safety of others such as restaurants etc. and
food safety provisions are obligations set by national legislation towards platform workers and not
by the platform itself.
3.
Article 3(1) and 4a(1), i.e. the material effects of a reclassification and the application
of the presumption in tax, criminal law and social security proceedings
Article 3(1) and recital 19 set out i.a. the material effects of a reclassification, stating that Member
States shall not only have national procedures in place for the correct and clear classification of the
employment status of persons performing platform work, but also that they shall ensure that when
an employment relationship is established, those persons enjoy the relevant rights deriving from
Union and national law applicable to workers. Article 4a(1) , on the other hand, sets out the scope
of application of the legal presumption, which is a procedural instrument to be applied within
existing procedures in place in the Member States to facilitate the correct determination of his or her
employment status.
At the request of some delegations, article 4a(1) 2nd subparagraph was introduced in order to
exclude the use of the legal presumption in tax, criminal and social security proceedings. These
delegations brought forward mainly two reasons. Firstly, they argued that excluding such fields
from the scope of application of the legal presumption would safeguard Member States’
competences in those areas. Secondly, they argued that in some Member States, the criteria for the
existence of an employment relationship in a specific field of law might differ from another area of
law, and that, therefore, the application of the legal presumption to these types of proceedings
should be left to the discretion of Member States.
As mentioned above, the legal presumption is a way of easing the access for bogus self-employed to
the correct classification of their employment status. As reclassification systems for bogus self-
employed as workers likely exist already today in Member States’ legal systems, the Presidency
would like to understand how the different Member States deal with it today. Furthermore, the
Presidency would also like to get the delegations’ views on article 3(1) and the corresponding
recital.
Question:
c) For Member States which have different notions of employment relationship in different
fields of law: how do you deal currently in practice with a person who has been reclassified
as a worker based on the notion of employment relationship in one field of law in later
proceedings concerning other fields of law, e.g. tax, criminal and social security
proceedings?
In Hungary, the investigation of various legal relationships and the remedying of practices
resulting from improper exercise of rights are part of the activity both of the labour
inspectorates and the tax authority. Adminstrative procedures can be initiated ex-officio or
upon complaint of the presumed platform worker. In addition to the above administrative
procedures, court proceedings may also be initiated to establish the existence of an employment
relationship.
The material effects of a reclassification and the application of the presumption in tax
proceedings
According to one of the general principles of Hungarian tax administration rules, the tax
authority shall qualify contracts or similar transactions according to their actual content in its
procedures (authenticity clause – requirement of qualification of the contract according to its
content – Section 2 of the Act CL of 2017 on the Rules of Taxation).
Therefore, in cases when the tax or the labour authority qualifies the contract between the
parties as an employment relationship, the public burdens arising from the employment contract
(taxes and contributions) will be determined by the tax authority with retroactive effect within
the statutory limitation period.
The material effects of a reclassification and the application of the presumption in social
security proceedings
The legal presumption does not necessarily benefit the platform-worker in such cases where
platform work is a complementary, secondary or marginal activity. This concerns the
determination of the existence of an employment relationship based on the criteria set out in the
proposal, which can have indirectly detrimental effects on flexible work arrangements.
The creation and organization of the social security system falls under the competence of the
Member States (Article 153 of the Treaty on the Functioning of the European Union, TFEU).
Therefore, it is up to the Member State to decide who can affiliate with its national social
security system and under which criteria. To our understanding legal presumption interferes
with this competence of the Member State, therefore we would like to see in the text of Directive,
in Article 4a that “the legal presumption shall not apply to social security proceedings.”
Our reasoning is the following:
The situation is more complicated if the platform work is carried out across borders and the
applicable legislations of more than one Member State are in conflict. In this sense, there is a
particular concern on the conflict when the applicable labour law differs from the applicable
social security law and as a result of the legal presumption stemming from the labour law it shall
be determined where, in which country the platform worker shall be insured and pay social
security contributions.
In the conflict of different legislations Regulation No. 883/2004 on the coordination of social
security systems determines the applicable legislation (paying contributions, right to benefits)
applying the general principle “lex loci laboris”. However, there are many complementary
measures (Art 13) in case of activities, which are pursued in two or more Member States
(pluractivities).
In these cases the decisive element can be either the place of residence of the worker or the
registered office or place of business of the undertaking/employer or the substantial part of the
activity pursued. These measures can be in conflict with the legal presumption, which should be
applied based on this Directive in all relevant administrative proceedings such as in the social
security proceedings.
For example, what will happen when the person pursues the substantial part of his activity in a
Member State other than the one in which the platform work is carried out and the applicable
legislation to his case from the social security point of view shall be of the Member State where
the registered office/place of business of the undertaking/employer is situated?
When there is a conflict between the Regulation and this Directive, we do not believe that Article
3(1), stating that the Member States shall ensure that platform workers enjoy the rights deriving
from relevant Union law, national law, collective agreements and practice applicable to
workers, are enough. In order to make a priority for the application of the Regulation No.
883/2004 in case of pluractivities, we have to be clear, precise and transparent. Therefore we
recommend either to maintain in the text “the legal presumption shall not apply to social
security proceedings” or to ensure expressis vebis that „The Regulation No. 883/2004 prevails
over the provisions contained in this directive.”
Otherwise, Hungary has a well-established system for classifying the contractual relationship as
an employment relationship.
According to Hungarian labour law, the classification of an employment relationship requires a
complex examination of the following aspects, in particular:
1) Primary qualifying criteria, which may be decisive in themselves for the classification of the
employment relationship
a) subordinated relationship between the parties, the employee performs his/her duties within
the organisation of the employer, the so-called work organisation dependence is identifiable;
b) the obligatory nature of performance of job-related tasks; continuous and regular working
obligation;
(c) an obligation to perform work in person, respecting the rules, regulations, instructions and
customs applicable to the job. Additionally, the employee in an employment relationship is
required to act in accordance with the trust necessary for the performance of his/her job, and to
cooperate with his/her co-workers.
2) Secondary criteria: they are not classifying the employment status in itself, but are
appropriate for the classification of an employment relationship if additional primary or
secondary criteria are also met indicating the existence of an employment relationship.
d) an employment obligation (providing tasks) on the part of the employer;
e) the employee is obliged to be at the disposal of the employer during his working hours, in an
adequate condition of working capacity;
f) wide-ranging unilateral rights of the employer to control, direct, instruct and supervise the
preformed working activity and its result: including place of work, working time, working time
schedule and manner of work;
(g) the costs of the work shall be borne by the employer;
(h) the employment contract must, as a general rule, be in writing;
(i) the employer must create conditions for occupational safety and health requirements;
(j) the work is carried out with the employer's means.
Qualification and establishment of an employment relationship in Hungary
Legal
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Comments from the IT delegation
5.
Article 4(1), i.e. the design of the criteria to trigger the presumption
Questions
d)
Do you consider that the criteria are now designed in a way that the right people,
i.e. mostly the bogus self-employed, will be covered by the legal presumption?
e)
If not, please explain why and provide concrete examples, under the current
national legislation, of bogus self-employed who would not benefit from the legal
presumption or, alternatively, of genuine self-employed who would wrongly be
affected by the legal presumption.
In general, Italy considers that the criteria, as defined in the last compromise texts, are sufficiently
clear to detect bogus self-employed.
However, it should be also noted that those criteria are not always unambiguous, but they must be
assessed on a case-by-case basis.
6.
Article 4(2a), i.e. fulfilling the criteria of the presumption as a result of compliance
with union law, national law or collective agreements
Questions
c)
Can you provide examples when this provision would be applied in your
Member State under the current legislation?
d)
Is this provision necessary? If so, could this issue be addressed in other ways in
the directive?
In general terms, in the Italian legal system the compliance of a regulatory provision, both at
European and at national level, excludes the liability of the subject for breach of the law and, at the
same time, it won't be considered as fulfilment of a criterion, sufficient to trigger the legal
presumption.
For this reason, in our view, the introduction of the provision in art. 4(2a) may appear not strictly
necessary as it is likely to create legal uncertainties without significant added value.
Comments from the LU delegation
1.Article 4(1), i.e. the design of the criteria to trigger the presumption
f)
Do you consider that the criteria are now designed in a way that the right people,
i.e. mostly the bogus self-employed, will be covered by the legal presumption?
YES – all the criteria foreseen by the proposal have been fully taken at this stage into account in
our national draft legislation to be discussed by the national parliament in the coming months.
2.Article 4(2a), i.e. fulfilling the criteria of the presumption as a result of compliance with
union law, national law or collective agreements
Questions
e)
Can you provide examples when this provision would be applied in your Member
State under the current legislation?
f)
Is this provision necessary? If so, could this issue be addressed in other ways in
the directive?
LU reiterates its strong misgivings on this paragraph, which represents a clear derogation with
respect of the application of the legal presumption.
Collective agreements are freely negotiated by the social partners in LU. This means that the
content of collective agreements differ from one sector to another, and sometimes from one
company to another.
In addition, collective agreements often have provisions regarding the system of remuneration by
fixing limits or how holidays and working hours are to be regulated. If one of the criteria of the
legal presumption is fulfilled because it is bound to do so by a collective agreement, it would not
be taken into account for the application of the presumption.
As described by ES, if the purpose of referring to collective agreements is to strengthen collective
bargaining for the solo self-employed, a more effective approach is to reinforce the rights of
information and consultation of the representatives of the self-employed in chapters III and IV,
which were deleted in the latest iterations of the text.
In conclusion, and in light of the arguments exposed by ES, SI and NL, this derogation is not
only unnecessary but may lead to amplify opportunities for the circumvention of the application
of the legal presumption.
3.Article 3(1) and 4a(1), i.e. the material effects of a reclassification and the application of the
presumption in tax, criminal law and social security proceedings
Questions
e)
The legal presumption is to be applied in all relevant administrative and judicial
proceedings where the correct determination of the employment status is at stake.
In proceedings in which fields of law would the correct determination of the
employment status currently be at stake in your Member State?
Today, the qualification or requalification of a normal contractual relationship to a working
relationship only belongs to the labour courts. The same courts have built a whole jurisprudence
in this area by having implemented different criteria that help to qualify such a contractual
relationship.
f)
Is the notion of employment relationship the same in all these different fields of
law? If not, please spell out in which fields of law these notions are different from
each other.
Yes – the notion of employment relationship is the same in all different fields.
LU national Jurisprudence has set out that a working relationship is underpinned by 3 elements:
Provision of work;
Remuneration in return;
Relationship of subordination (the most representative character of the employment
relationship)
g)
For Member States which have different notions of employment relationship in different
fields of law: how do you deal currently in practice with a person who has been
reclassified as a worker based on the notion of employment relationship in one field of
law in later proceedings concerning other fields of law, e.g. tax, criminal and social
security proceedings?
According to our legislation, the legal presumption will not be applicable in tax, criminal and
social security proceedings as such, but will generate the required effects in these fields of law if
a reclassification is enacted by labour courts, in order to ensure the coherence of our legal
system. The notion of employment relationship is therefore applicable in all relevant legal fields.
That being said, introducing an explicit exclusion of social security and tax proceedings from the
application the legal presumption at EU level remains an unnecessarily restrictive approach.
Comments from the LV delegation
Answers of Latvia to the Note from the Presidency
for Social Question Woking Party on 13 February 2023
(5273/23)
Questions
1b) If not, please explain why and provide concrete examples, under the current national
legislation, of bogus self-employed who would not benefit from the legal presumption or,
alternatively, of genuine self-employed who would wrongly be affected by the legal presumption.
We look positively at the efforts to bring the legal presumption criteria closer to the
findings/conclusions expressed in the ruling of the EU Court in case No. C-692/19 (Yodel Delivery
Network Ltd. Case), as particularly important in distinguishing a worker from a self-employed
considering the employer`s subordination/supervision.
However, we still consider that no significant changes have been made in the application of the
legal presumption - even with the increased number of criteria, a minority of these criteria (3 out of
7) are still sufficient to apply the legal presumption and presume the employment relationship.
This kind of approach for application of presumption when a minority of the criteria are sufficient
can limit the existence of true self-employment and create a significant additional burden for
merchants, while also limiting competition. Increasing the criteria for application of legal
presumption would improve the labour market conditions for entrepreneurs, strengthening the
ability of merchants to operate in an innovative and competitive business environment.
2a) Can you provide examples when this provision would be applied in your Member State under
the current legislation?
At the moment, such examples are not identified.
3c) For Member States which have different notions of employment relationship in different fields of
law: how do you deal currently in practice with a person who has been reclassified as a worker
based on the notion of employment relationship in one field of law in later proceedings concerning
other fields of law, e.g. tax, criminal and social security proceedings?
Comments from the NL delegation
Answers to questions 1b), 2a) and 3c) of Presidency note 5273/23 of 1 February 2023
Contribution of The Netherlands – 7 February 2023
NB: All references to draft text pertain to document 15338/22 REV1.
1a) Do you consider that the criteria are now designed in a way that the right people, i.e. mostly the bogus self-
employed, will be covered by the legal presumption?
1b)
If not, please explain why and provide concrete examples, under the current national legislation, of bogus
self-employed who would not benefit from the legal presumption or, alternatively, of genuine self-employed
who would wrongly be affected by the legal presumption. Answer
The Netherlands believes that a strong and effective rebuttable legal presumption will provide protection
for a very vulnerable group of workers. As digital labour platforms are innovative and may easily adapt their
business models, this requires legislation that is future proof. In our view, criteria (d), (da) and (db) do not
meet this standard, while the original Commission proposal does. The criteria of the presumption proposed
by the Commission, based on jurisprudence, reflect the control and direction that is generally exercised by
digital labour platforms. Our assessment is that these criteria will cover mostly the bogus self-employed.
Because of the characteristics of this particular group - i.e. workers subject to subordination and varying
degrees of control by the digital labour platform they operate through - we expect that genuine self-
employed are not likely to fall within the scope of the legal presumption.
2a)
Can you provide examples when this provision would be applied in your Member State under the current
legislation?
Answer
Under Dutch law, social partners enjoy a great deal of freedom to close mutual agreements on terms and
conditions of employment, which they lay down in a collective labour agreement. For example, it is not
uncommon that a collective agreement contains a provision determining that a worker may not work for a
third party. Collective agreements may also contain specific provisions regarding work and rest times. Given
the breadth and reach of collective agreements in the Netherlands, an
a priori exclusion of collective
agreements from the scope of the legal presumption would preclude a proper assessment of the facts in
many circumstances, thereby considerably weakening the effectiveness and usefulness of the presumption.
It is also noteworthy that under Dutch law social partners do not have the freedom to establish whether or
not an employment contract exists; they also may not deviate from mandatory legal stipulations regarding
employment contracts. In this respect we see a fundamental difference with the text of the article 4 (2a).
3c)
For Member States which have different notions of employment relationship in different fields of law: how
do you deal currently in practice with a person who has been reclassified as a worker based on the notion of
employment relationship in one field of law in later proceedings concerning other fields of law, e.g. tax,
criminal and social security proceedings?
Answer
If a person has been reclassified, for instance through a court ruling, then all relevant authorities will take
notice of this and subsequently decide whether there are consequences within their respective area of
competence.
Comments from the PL delegation
Answers to the questions 1b), 2a) and 3c) of the Note from the Presidency for Social Question
Woking Party on 13 February 2023 (5273/23)
1. Article 4(1), i.e. the design of the criteria to trigger the presumption
Questions
b) If not, please explain why and provide concrete examples, under the current national legislation, of
bogus self-employed who would not benefit from the legal presumption or, alternatively, of genuine
self-employed who would wrongly be affected by the legal presumption.
In our view, if only criteria a), b) and e) referred to in Article 4 (1) are fulfil ed, there is a high risk that the
genuine self-employed would wrongly be affected by the legal presumption.
Examples:
A plumber works through platform X, which sets maximum rates, e.g. 299 PLN per hour (the minimum hourly
rate in 2023 is PLN 22.80), but the actual price is determined each time by the plumber, depending on the
service in question (not exceeding PLN 299 per hour of work though) [criterion a]; platform X requires the
wearing of a helmet, jacket or bag with the platform logo for better identification, or provides a password
randomly generated by the IT system when the plumber confirms acceptance of the service – to be
presented while entering the customer's home for customer safety reasons, so as not to let the wrong person
into customer’s home [criterion b]; payments are made through the platform X, for the convenience and
security of customers, to protect their personal data [criterion e], although the payment wil be transferred in
full to the plumber's account, and the plumber wil only transfer a fixed monthly amount to the platform as a
fee for being able to advertise and use the database of customers logged on the platform X. However, the
platform will not interfere with the plumber's working hours or absences, influence the acceptance or
rejection of jobs or restrict the use of substitutes or subcontractors. It appears that the prerequisites for the
definition of a digital labour platform will then be met in practice (the payment intermediation will fulfill Article
2(1)(1)(c)), and criteria a, b and e wil also be met.
The translator of an exotic language, works through platform Y, which sets maximum rates, significantly
higher than the obligatory minimum hourly rate, but the translator wil have the option to set a lower rate
within this limit [criterion a]; the platform requires the translation file to include the platform's logo for better
identification and promotion of the platform [criterion b]; the platform's regulations wil impose a ban on
working for other platforms providing translation services in the language in question [criterion e]. However,
the platform does not verify the quality of the translations, the timing or place of the service, nor the use of
subcontractors/substitutes. The deadlines for the translations are agreed on a case-by-case basis between
the translator and the client - however, via the client's account logged in on the platform Y, as wel as all
correspondence, including the transmission of the text to be translated and the completed translation, must
take place via the customer's account, also payments are made via the platform, albeit to the translator's
sub-account (this intermediation appears to fulfill Article 2(1)(1)(c)).
In view of the lack of employer's direction at a place and time specified by the platform, and the remuneration
beeing paid not by the platform, two aforementioned cases will not meet the national definition of an
employment relationship.
2. Article 4(2a), i.e. fulfilling the criteria of the presumption as a result of compliance with union law,
national law or collective agreements.
a) Can you provide examples when this provision would be applied in your Member State under the
current legislation?
The Polish Labour Code provides for the obligations of employers, as wel as of non-employers organising
work, to protect health and life by providing safe and hygienic working conditions, to employees as wel as to
natural persons performing work on a basis other than employment relationship or self-employed. It also
imposes occupational health and safety obligations on individuals performing work on a basis other than an
employment relationship, to the extent determined by the employer or other entity organising the work.
3. Article 3(1) and 4a(1), i.e. the material effects of a reclassification and the application of the
presumption in tax, criminal law and social security proceedings
c) For Member States which have different notions of employment relationship in different fields of
law: how do you deal currently in practice with a person who has been reclassified as a worker
based on the notion of employment relationship in one field of law in later proceedings concerning
other fields of law, e.g. tax, criminal and social security proceedings?
In Poland there is no different notions of employment relationship.
However, circumstances arising from findings made by an labour inspector are not binding in the
proceedings of the insurance authority for the determination of being subject to the obligation of employee
social insurance, i.e. they do not constitute the basis for issuing a decision on social insurance coverage
without carrying out checks or administrative proceedings establishing the obligation to be subject to social
insurance.
Comments from the RO delegation
7. Article 4(1), i.e. the design of the criteria to trigger the presumption
Questions
b) If not, please explain why and provide concrete examples, under the current national
legislation, of bogus self-employed who would not benefit from the legal presumption or,
alternatively, of genuine self-employed who would wrongly be affected by the legal
presumption.
In our legislation, currently there is no institution of legal presumption for establishing the
existence of an employment relationship. Consequently, the determination of the existence of an
employment relationship is based only on clear criteria established in the Labour Code, so it is not
presumed. In this context, we appreciate that it is very important for this proposal to clearly define
the conditions, criteria and practical application of the legal presumption regarding the
professional status.
Thus, expectations remain linked to a clear regulation that ensures both the guarantee of decent
working conditions and the protection of all workers on the platforms, as well as to avoid
increasing legal uncertainty and to promote a correct classification of these persons.
In this regard, we consider that the content and threshold of the criteria initially proposed by COM
would represent a more balanced approach, would ensure fair and transparent working conditions
and would guarantee a healthy working environment for persons performing platform work,
regardless of their professional status.
8. Article 4(2a), i.e. fulfilling the criteria of the presumption as a result of compliance with
union law, national law or collective agreements
Questions
g) Can you provide examples when this provision would be applied in your Member State under
the current legislation?
In RO there is no specific regulatory legal framework in the field of platform work. In the same
time, according to our national practice, the employer is defined by law and the conditions for
collective bargaining and application of collective agreements at the level of employers, as well as
the conditions for extending the application of collective agreements to employers not represented
in collective negotiations are also established by law.
Moreover, introducing in the text a reference to the collective agreements for the identification of
the employer would generate interpretations in relation to the national practice and could induce a
direct placement of the platform that has the status of an employer under the conditions of the
collective agreements.
As such and bearing in mind the replies of ES and NL to this question, we consider that the current
wording would give chance to platforms to find ways to circumvent the application of the legal
presumption.
9. Article 3(1) and 4a(1), i.e. the material effects of a reclassification and the application of the
presumption in tax, criminal law and social security proceedings
Questions
c) For Member States which have different notions of employment relationship in different fields
of law: how do you deal currently in practice with a person who has been reclassified as a
worker based on the notion of employment relationship in one field of law in later proceedings
concerning other fields of law,
e.g. tax, criminal and social security proceedings?
Not applicable.
Comments by SI delegations
Reply by SI to the questions 1b), 2a) and 3c) of Presidency note 5273/23
1. Article 4(1), i.e. the design of the criteria to trigger the presumption
Questions
a) Do you consider that the criteria are now designed in a way that the right people,
i.e. mostly the
bogus self-employed, will be covered by the legal presumption?
b) If not, please explain why and provide concrete examples, under the current national
legislation, of bogus self-employed who would not benefit from the legal presumption or,
alternatively, of genuine self-employed who would wrongly be affected by the legal
presumption.
Slovenia believes that the criteria for triggering a legal presumption and their number represent a
key element of the legal presumption mechanism. The mechanism should be strong and effective
enabling reclassification to as many bogus self-employed as possible and avoiding misclassification
of genuine self-employed.
The criteria for triggering a legal presumption should be clear, based on jurisprudence and their
number should be as small as possible. SI supports the Commission's original proposal.
The last compromise proposal does not meet our expectations, in particular because the criterion
(d) was split into three separate criteria in an arbitrary way with no evidence in jurisprudence.
We believe that the criteria as they stand now (3 out of 7) would make it more difficult for bogus
self-employed to be properly reclassified as an employee, than in case of the original Commission's
proposal (2 out of 5).
2. Article 4(2a), i.e. fulfilling the criteria of the presumption as a result of compliance with
union law, national law or collective agreements Questions
a) Can you provide examples when this provision would be applied in your Member State
under the current legislation?
SI considers the question on national examples irrelevant for the negotiations since the legislation
can be changed anytime. We should make a future proof legislation.
In our opinion this provision would devalue the directive as it enables member states (and social
partners) to substantially change the criteria for triggering legal presumption, which would make
the legal presumption mechanism (and consequently the directive) ineffective.
SI fully shares the opinion provided by ES on Art. 4(2a) as the reply to this PSY note.
3. Article 3(1) and 4a(1), i.e. the material effects of a reclassification and the application of the
presumption in tax, criminal law and social security proceedings In SI, there is no different notions of employment relationship.
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