Brussels, 13 February 2023
Interinstitutional files:
2021/0414 (COD)
WK 1899/2023 ADD 1
DOCUMENT PARTIALLY ACCESSIBLE
LIMITE
TO THE PUBLIC (24.04.2023)
SOC
EMPL
MI
DATAPROTECT
CODEC
This is a paper intended for a specific community of recipients. Handling and
further distribution are under the sole responsibility of community members.
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 on 13 February, delegations will find attached the
contributions received from the BE, BG, EE, EL, IE, LV, LI and PT delegations.
WK 1899/2023 ADD 1
LIFE.4 CHS/mk
LIMITE
EN
Comments from the BE delegation
Answers to questions 1b), 2a) and 3c)
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.
We would like to go back to the provision as set in the compromise proposal 11593/22 concerning
the criteria d).
Our will is to cover most of the situations through a strong and effective rebuttable legal
presumption in order to provide protection for this vulnerable group of workers. In practice, it is
known that it is complicated for platform workers to have their status as employees effectively
recognized. Adding two more criteria (by dividing criteria d)) makes this presumption more
difficult. Our goal is to ensure the workers of platforms avoid falling in the precariousness due to a
wrong status.
All the criteria provided for in the COM proposal already exist in Belgian law, even before the
introduction of the specific presumption relating to digital platforms into the legislation. The
proposed criteria are indeed very close to our general criteria and/or certain sectoral criteria, for
example in the transport sector. These elements have therefore already been examined by the courts,
in particular the Brussels Labour Court in the UBER case (21/12/2022).
In the UBER case, the criteria (a) and (db) of the proposal were considered to be met (2 out of 7)
and the other criteria not met (5 out of 7).
These criteria are worded somewhat differently in Belgian law, but they cover the same aspects. It
can therefore be seen that before the same court, Uber drivers would still be considered as self-
employed after the implementation of the Directive. What appears here is that following the same
reasoning as the judge in the UBER case, there will not even be a need to reverse the presumption
by means of the general criteria of Belgian law, since too few of the criteria of the Directive are
fulfilled for the presumption to apply.
If the criteria (d) is split in three different criteria, the Uber driver only meets one criterion out of
the three. However, to be presumed to be in an employment relationship, now he has to fill in 2
more criteria in article 4 (3/7).
While, if we go back to the criteria as set in the proposal 11593/22, the driver would fill in the
criterion d) and a) and the presumption of an employment relationship therefore will apply (2/5).
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 a) Can you provide examples when this
provision would be applied in your Member State under the current legislation?
It could happen in cases in which the platform obliges workers to use certain equipment that is
made compulsory by legislation for safety reasons (e.g. transport), or checks that the professionals
active on the platform meet the rules of access to their profession (e.g. lawyers, chartered
accountants), or obliges workers to comply with tariffs that would be set by the regulations (e.g.
self-employed carers covered by a convention who have to comply with the fees set by the sickness
institution).
In Belgium, it is already provided that platforms cannot require a worker to comply with binding
rules on presentation, behaviors towards the recipient of the service or performance of the work,
unless this is provided for by legal provisions on health and safety applicable to users, clients or
workers.
When such a legal provision applies, the platform will not be considered to fulfill criterion b) of the
proposal.
The derogation may not lead to expand opportunities set at the national level for the circumvention
of the presumption set by EU law.
3. Article 3(1) and 4a(1),
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?
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?
The determination of the employment status generates consequences in terms of tax law, social
security law, criminal law, labour law (and entails obligations in terms of safety, health and
discrimination) and commercial law.
In Belgium, the determination of the employment status is regulated by the law on the
determination of the labour status of 27 December 2006.
As soon as the employment status is established, there are consequences in terms of tax, social
security, and social criminal law, because the employer can be exposed to criminal sanctions. Those
rules are different from a self-employed status, and this is why the presumption should apply , in a
consistent way, in tax and social security matters.
With regard to social security contributions, the question arises as to whether they are employee or
self-employed contributions, and for this it is necessary to determine the nature of the employment
relationship and the status of the worker.
This is why the presumption of the employment relationship provided in the proposal should also
have legal effects on the procedures in social security, criminal law and taxation (instead of
explicitly being excluded).
Comments from the BG 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?
It is important for us that the criteria specified in Art. 4, par. 1 of the Directive, are
clear and applicable in practice, in order to be able to easily distinguish the type of
legal relationship of each person working through a platform. In this sense, we
consider that the way the criteria are formulated in Art. 4, par. 1 are sufficient and
the text proposed by the Czech Presidency in December finds the right balance of
the presumption. Bulgaria believes that possible increase of the ambition of the
text should be approached carefully, given the position of the Parliament, which
completely removes the criteria from Art. 4.
In this respect, increasing the ambition of the Council's Common Approach will
make it impossible to find the right balance in the negotiations with the European
Parliament, which will lead to their blocking. We draw attention to the fact that
Bulgaria also proposed the separation of the criterion in letter "b", as was done in
letter "d", due to the fact that in practice there are three separate criteria in this
letter.
Also, not everywhere in the Directive a clear distinction is made between platform
workers and those working through digital labour platforms, i.e. between
employees and self-employed persons, in view of the rights granted to them by the
Directive. An example of this is Art. 17 and 18, where the protection against
dismissal, which is relevant only for those working under employment
relationship, is also associated with self-employed persons working through
platforms.
1
In its version of document 15338/22 REV1
Bulgaria has repeatedly raised this issue, with specific proposals for editing the
text, which it hopes will be reflected in the General Approach, as proposed in the
room document distributed by the Czech Presidency during the December Council
meeting.
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
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?
We have no such an examples.
2
In its identical version of documents 14514/22 and 15338/22 REV1
b)
Is this provision necessary? If so, could this issue be addressed in other ways in the
directive?
It may be useful to have this provision as part of the recitals. At the same time,
however, in view of the answer to the first question, related to Art. 4(1) - regarding
the presumption, we believe that it should be clear when and under what
conditions the provision of Art. 4(2a) is going to be applied, so as to ensure that
there are clear and unambiguous criteria in the Directive regarding the
presumption for determining the status of a person working through digital
employment platforms, as well as a clear mechanism to trigger this 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
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.
3
In their version of document 15338/22 REV1.
4
In its version of document 15338/22 REV1.
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?
In Bulgaria, the presumption will not apply in all administrative and/or criminal
proceedings. According to the current legislation, the Labour Inspectorate is the
only competent authority that has the right to announce the existence of an
employment relationship. In the event that the tax authorities have doubts about
the correct classification of an individual, they refer it to the Labour Inspectorate.
If the Labour Inspectorate declares the existence of an employment relationship,
this fact should be accepted as such by the tax authorities.
In this regard, there is a definition of an employment relationship and its
characteristic elements in the Bulgarian labour legislation. There is also a
procedure for determining the status of the person when work is performed under
an employment relationship without an employment contract (Article 405a of the
Labour Code). Therefore, in our opinion, at the moment, the obligations in Art. 3,
par. 1 in conjunction with recital 19 seem to be sufficient.
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.
No. There is a specific definition of the employment relationship for the purposes
of the Personal Income Tax Act, which is much broader than that provided for in
labour legislation and covers, in addition to workers, also civil servants,
prosecutors and judges, relationships with employees in the Bulgarian Orthodox
Church, etc. This definition originates from the principle of fiscal autonomy.
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?
There are no practical difficulties, since the definition of an employment
relationship for the purposes of the Personal Income Tax Act also covers the
employment relationship within the meaning of the Labour Code.
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 our opinion, Art. 3, par. 1 is clear enough and, also in our opinion, this should
be the final result of the application of the presumption, namely that the person
who is reclassified as a worker should enjoy the rights and obligations provided for
in the labour legislation for all workers.
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.
5
In its version of documents 14514/22 to 15338/22 REV1.
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?
The provision of Art. 4a, par. 2 defines the scenarios in which national authorities
may not apply the presumption when it is obvious that it will be rebutted. In our
opinion, this provision should be further considered in order not to allow different
application in practice by different authorities.
Comments from EE delegation
Questions 1b), 2a) and 3c) have already been answered earlier but for the sake of clarity are
also included here.
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?
No.
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.
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?
During the negotiations, Estonia has made several alternative text proposals, we are willing to
continue working with them. In principal, as pointed in the previous answer, 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. We believe that the
first three criteria 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, we are still on
the opinion that the criteria points a-c should be deleted or the threshold should be at least four out
of seven.
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) 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?
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.
b) Is this provision necessary? If so, could this issue be addressed in other ways in the
directive?
Yes, we find this provision necessary. It is 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.
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.
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 Estonia, the legal presumption is used in labour law proceedings (by labour inspectorate, labour
dispute commitees, courts). In theory, the tax authority could use the same legal presumption
established in the Employment Contracts Act when requalifying contracts, but in practice they
assess all aspects (see also answer to question 3c) before making the decision. That is also often the
case for the labour inspectorate to avoid the state responsibility, should the use of legal presumption
lead to wrong results.
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, in Estonia, the notion of employment relationship is the same in all different fields of law.
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.
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 consider the provision clear.
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), 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.
Question
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 consider the provision to be reasonable and do not think that it would create a gap.
Comments from the EL delegation
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?
We have expressed our doubts regarding the proportionality of criteria a, b and c of art 4
(1) of the Proposal as it appears on the Presidency Document of the 7th December 2022
because they are «triggered» in almost every case where ride hailing and delivery
platforms are involved and thus they would not be
proportionate according to the CJEU
case-law.
Indeed, according to current practice, a lot of platforms in the above sectors would set
upper limits of remuneration (criterion a) almost all would require the person
performing through platforms to respect specific rules regarding appearance, conduct
towards the client or performance of the work (criterion b) ex. wear clean clothes,
address a client in a certain manner, make sure the client is safe, keep the food safe etc
and supervise the work (criterion c), ex. whether the food was delivered in due time or
at all.
This is because the above functions described in criteria a b and c are inherent to the
nature of platform work and to the modus operandi of the digital labour platforms
regardless of whether the person performing platform work is worker or self-employed.
This is why, in our opinion, criteria a b and c are not pertinent to demonstrate the
employment status.
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.
Greece has in place a special law regarding platform work (which entered into force
before the entry in force, or even the publication, of this Proposal). This law is based on
the CJEU case law, particularly the Yodel Order
(case no. C-692/19, Yodel Delivery
Network Ltd.) i.e. it comprises the following criteria as per the determination of the
employment status.
According to the Yodel case-law, a person working through platforms is considered to
be self-employed if he/she:
a.
can use subcontractors or substitutes to perform the service undertaken
b.
can accept or not the various tasks offered by their putative employer or
unilaterally set the maximum number of those tasks
c.
provide services to any third party, including direct competitors of the putative
employer
d.
fix their own working hours within certain parameters and tailor their time to suit
their personal convenience rather than solely the interests of the putative
employee, provided that the independence of that person does not appear to be
fictitious and it is not possible to establish the existence of a relationship of
subordination between that person and his putative employer.
The Greek reform requires that all four above criteria cumulatively are met so that the
person is presumed not to be a worker (and thus to be self-employed). Indeed, the
existence of all four above criteria ensures in the eyes of the Greek legislator that the
person in question enjoys the independence of the truly self-employed. This
independence must be real and not fictitious.
However, the same person who would fulfill the above criteria and would be
a
genuinely self-employed person, under Greek law and under CJEU case-law, could be
presumed to be worker, according to this Proposal, if the modus operandi of the digital
labour platform fulfilled also criteria a, b and c which, as said, are «triggered» in most
cases where ride hailing and delivery platforms are concerned.
In this case, a. a genuinely self-employed person would be wrongly affected by the legal
presumption and b. the implementation of the criteria set in the proposed directive
would lead to the exact opposite result than the one provided for by the CJEU case-law.
To our knowledge, the Yodel Order is the only case law where the CJEU aims to
determine the employment status in platform work for professionals i.e. for people who
receive remuneration for their work and is also very recent.
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?
Since, in our opinion criteria a b and c are not adequate to determine the employment
status, as explained above, the triggering of the legal presumption should not rely solely
on these 3 criteria but one additional criterion of the remaining d da, db and e should be
needed. Given that criteria d da, db and e are inspired by the Yodel case-law, in such a
case, at least one “Yodel” criterion would have to be taken into consideration ensuring
that the CJEU case-law is not disregarded.
A modification of criteria a, b and c in a manner that would make them more suitable to
platform work and thus, more proportionate, could also be considered.
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?
Taxi drivers working through platforms/apps fall within the scope of the proposed
Directive, as previously explained by the Commission. Taxi drivers in Greece are
offering a “public service”, for example, under circumstances, they cannot refuse a
drive and their profession is heavily regulated. There are rules regarding their conduct
towards the customer, their health and safety, the health and safety of the customer. The
same goes for restaurants (and subsequently delivery platforms) regarding food safety.
This is why the provision of article 4 2a is needed and should remain in the operative
part of the text.
b)
Is this provision necessary? If so, could this issue be addressed in other ways in the
directive?
The scope of the provision could be limited, though, to issues dealing with the health
and safety of the customer and of the person performing platform work, thus ensuring
that the essence of this clause is safeguarded in the main text.
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?
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?
The notion of the employment relationship is a labour law notion in the Greek legal
order.
The inclusion of article 4a 1 2nd subparagraph excluding the use of the legal
presumption in tax, criminal and social security proceedings
is, in our view, necessary
so that
Member States’ competences in these areas are secured. It is also essential so
that bureaucratic chaos is avoided.
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?
Some clarification of the term
relevant would be welcome.
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 do not share this view. This provision can relieve unnecessary administrative
burdens contributing to the efficacy of the Proposal.
Comments from the IE delegation
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?
Ireland can accept the formulation as set out in the EPSCO Council 08.12.2022
PRESIDENCY ROOM DOCUMENT.
Irelands already has mechanisms for the determination of employment status. For the
question to be examined all that needs to be stated is that there is a contract of
employment/contract for service (i.e. a statable case). It then a matter for the relevant
authorities to determine the question on the facts of each case. A full examination of the
relationship will take place.
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?
There is no statute law on the matter. The employment status tests rely on common law,
that is, rules laid down by judges. In Ireland, the first test is known as the ‘mutuality of
obligation’ test i.e. is there an obligation to offer work/to work. Then question such as
integration, control, etc are considered. Each case must be determined on its own facts.
While there is a statutory obligation to provide terms and conditions of employment to
an employee, Irish courts accept that a contract can also be oral.
b)
Is this provision necessary? If so, could this issue be addressed in other ways in the
directive?
It is not necessary.
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?
Tax law, social welfare law, labour law
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.
While the tests are applied in a similar manner in each area of law, tax rules differ from
those applicable to labour and social welfare law.
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 Ireland, 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?
It is fine.
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?
Ireland can support the text as it is.
Comments from the LV delegation
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?
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. It is important that the criteria provide greater legal certainty,
reduce litigation costs and facilitate business planning in the work of the digital labour
platform. The focus should also be on the protection of genuine self-employed in the way
of fairness and proportionality.
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. The application of
minority criteria can slow down the creation of new digital labour platforms, slowing
down the economic growth of the overall platforms. 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.
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.
Please see the answer to the previous question.
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?
In our opinion, it is necessary to use the approach of applying the majority of legal
presumption criteria (at least 4 of 7). Moreover, the legal presumption criteria must be
based on the digital labour platform`s as employer`s subordination/supervision over the
employed person as the determining factor in order to presume 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
Questions
a)
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.
b)
Is this provision necessary? If so, could this issue be addressed in other ways in the
directive?
This provision can remain in the text of the directive.
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 LV the correct determination of the employment status is important in the fields of
employment relationship, taxes and social security.
If employment legal relationship is identified, the legal enactments of employment
relationship with the requirements specified therein are applied.
As regards social security, correct initial determination ensures that contributions are
collected in right amounts (status change will include regress claims, possible penalties,
additional payments on the part of employer and employee or returned contributions).
Payment periods and rates differ for employees and self-employed.
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.
The same notion of employment relationship in the fields of employment relationship,
taxes and social security. According to Labour Law of LV an employee is a natural
person who, on the basis of an employment contract, performs specific work under the
guidance of an employer for an agreed remuneration.
In addition, regarding taxes the law “On Personal Income Tax” provides for an anti-
avoidance rule, which determines the features of work remuneration. Upon identification
of these features, salary tax (personal income tax) and mandatory state social insurance
mandatory contributions must be paid on such deemed work remuneration.
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?
A regulation that creates less room for interpretation is needed.
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 consider that the regulation should not create an excessive administrative burden for
competent national administrative authorities.
Comments from the LT delegation
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.
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 LT Labour Code there is no specific regulation for platform workers or separate
institution of legal presumption, which would determine employment status of person. At
the same time we look very carefully for any proposals and measures which would
change it substantially by creating discriminatory regulations for the persons who are in
a similar situation or would be disproportionate.
We do not think that the criteria, especially the threshold, are now designed in a way that
the right people will be covered by the legal presumption. The threshold is too low and
would wrongly affect genuine self-employed persons. The poss. example would be taxi
driver who would fall under the proposed legal presumption, by triggering first three
criteria (a, b and c) as he/she would have determined remuneration for provided services,
6
In its version of document 15338/22 REV1
respect specific rules with regard of conduct towards the recipient (be on approximate
time if decided to accept offer to provide services) and trip would be determined
(approximately) according to the initial plan and for agreed price (supervises the
performance). Similar examples would go for food or package deliveries.
On the other hand Member states who wish to lover the threshold or to have more
criteria are free to do so and will not have to change their existing legal regulations.
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?
The threshold should be increased at least up to 4 out of 7, to majority or that one of (d),
(da), (db) or (e) always be triggered together with criteria (a), (b) and (c) or delete
criteria (a), (b) and (c). At the same time we believe that criterion (c) and criterion (d)
are overlapping. For this reason criterion (d) could be deleted or merged with criterion
(b).
Another possible solution for usage of the criteria is to take the idea from the EP’s
agreed mandate, which sets that all criteria should be taken in to consideration while
evaluating employment status but differently to the EP’s proposal, to delete legal
presumption entirely. This would bring closer the EP’s and the Council’s positions,
ensure overall evaluation of employment status and would ensure that the measures at
the EU level are proportional and correspond to the minimum requirements for gradual
implementation according to the Art. 153.2 of the TFEU.
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.
Questions
a)
Can you provide examples when this provision would be applied in your Member
State under the current legislation?
This provision was applied due to COVID19 pandemic, when not only workers but also
service providers (self-employed) where required to take obligatory measures and which
were out of scope of the OSH regulations. As for OSH regulations, currently in LT it is
applicable only to workers, except for self-employed persons who provide independent
activities on a construction site. For these self-employed persons OSH regulations
applicable mutatis mutandis.
Another example would be from the COM’s communication “Guidelines on the
application of Union competition law to collective agreements regarding the working
conditions of solo self-employed persons” which sets scope and examples of working
conditions which could be agreed by the solo self-employed persons, “such as:
remuneration, rewards and bonuses, working time and working patterns, holiday,
leave, physical spaces where work takes place, health and safety, insurance and social
security, and conditions under which solo self-employed persons are entitled to cease
providing their services or under which the counterparty is entitled to cease using their
services” (para 15).
7
In its identical version of documents 14514/22 and 15338/22 REV1
In case of collective agreement concluded according the COM’s Guidelines and without
explicitly stating in the Directive that the criteria shall not be deemed fulfilled in case of
compliance with a collective agreements, it would automatically requalify person as a
worker, although collective agreement between platform and self-employed persons is
concluded according to the COM’s Guidelines. On other hand, MS still be in the
position to requalify person from self-employed status to employment relationship
according to 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 even when the collective agreement is concluded according to the
COM’s Guidelines.
b)
Is this provision necessary? If so, could this issue be addressed in other ways in the
directive?
Yes, this provision is necessary and should stay in the operative part.
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
8 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)
9, 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.
8
In their version of document 15338/22 REV1.
9
In its version of document 15338/22 REV1.
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?
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?
The provisions of the Labor Code determine the characteristics of employees. Certain
provisions of self-employed persons are in the Law on Employment as well. The
provisions of these laws apply equally in all procedures. According to national law, it is
important to apply the determination of employee status in procedures related to labour
relations. In the event that a question arose regarding status determination, e.g. in the
field of taxation, the question would be referred to the State Labour Inspectorate, which
would apply the presumption.
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)
10, 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.
10
In its version of documents 14514/22 to 15338/22 REV1.
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, we don’t. According to Art. 23 of LT Law on Courts the Supreme Court shall
develop a uniform practice of court of court of general jurisdiction in the interpretation
and application of statutes and other legal acts. The interpretations of the application of
laws and other legal acts contained in the rulings of the Supreme Court shall be taken
into account by the state and other institutions, as well as other persons when applying
the same laws and other legal acts. When developing and ensuring uniform interpretation
and application of law in courts of general jurisdiction, the Supreme Court analyses the
practice of national, European Union and international courts, other sources of law,
prepares summaries of court practice, reviews, and publishes information on its
activities.
Thus, the State Labour Inspectorate ought to follow and take into account the
interpretations of the application of laws, including regarding the interpretation of the
Labour Code or the Law on Employment.
Comment from the PT 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?
Regarding the design of the criteria, some of the previous concerns remain:
i) the legal presumption should be simple and practical, understood and applied, so as to
determine the employment status correctly. The more criteria are needed to be fulfilled, the
more difficult it becomes to be established;
ii) Fulfilling the criteria to establish a legal presumption should not exclude the verification
of juridical subordination: this is fundamental for PT to determine the existence of an
employment relationship. All circumstances as a whole are verified on a case-by-case basis
and subject to the
de facto principle;
iii) Establishing the legal presumption through fulfilment of 3 out of 7 criteria would be a
substantial modification for the PT Labour Code, namely in its article 12º which establishes
2 out of 5 criteria.
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?
Criteria mentioned in a), b), c), d), da), db), and e) refer to specificities of platform work. It
seems admissible that some of these specificities will derive from collective bargaining amidst
each sector. It is therefore not clear why such conformity should be regarded as excluding the
validity of the criterion for the purposes of the presumption.
Such is the case where in collective agreements, e.g. a dress code, should be complied with (
see
PT, clause 51, Collective Agreement between Associação Portuguesa de Facility Services,
APFS and Cleaning and Domestic Services Union, STAD). Portuguese jurisprudence
acquis
considers for example this dress code criteria as insufficient to determine the existence of an
employment relationship if it is not connected to a juridical subordination conceptual situation
as a whole – this is, at the least, organising one’s work, setting levels of remuneration,
supervising the performance of work and/or verifying the quality and results of the work
including by electronic means, effectively restricting the possibility to build a client base or to
perform work for any third party, discretion to establish the working hours and periods of
absence, to accept or to refuse tasks and to use subcontractors or substitutes.
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?
In our national legislation, the existence of an employment relationship will have effects in
other areas such as tax and social security.
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?
In our legislation, determining the existence of an employment relationship is decurrent from a
worker’s claim or the labour inspective body initiative and discretion; both can proceed to
Court.
_____________________
