Growing number of digital and ICT services require legal clarification of people involved. The new Commission’s draft of a directive is aimed at recognising these “digital platform” workers offering such services as “regular employees”. The main idea of a new draft is to recognise a salaried status for such “platform” workers.
Rapid and widespread development of digital services has been at the heart of the digital changes that impact EU citizen’ daily lives. Many new ways to communicate, shop or access information online have appeared, and they are constantly evolving. With these developments in mind, the European Single Market requires a modern legal framework that ensures the safety of users online, establishes governance with the protection of fundamental rights at its forefront, and maintains fair and open online platform environment.
The Commission is guiding a set of ambitious reforms of the digital space, a comprehensive set of new rules for all digital services, including social media, online market places, and other online platforms that operate in the EU member states, e.g. the Digital Services Act and the Digital Markets Act.
More in: https://digital-strategy.ec.europa.eu/en/policies/digital-services-act-package
In the beginning of December 2021, the European Commission made a draft of a directive aimed at harmonizing the legal status of platform workers in the EU, in particular by establishing a presumption of salaried status. According to the draft, the status of an employee recognised as a platform worker, targets mainly digital platforms that provide a commercial service with the following “working conditions”:
a) at least in part, the work performed electronically, by means of a website or mobile application;
b) the work done at the request of the recipient of the service; and
c) the work involving, as a necessary and essential element, the organisation of work carried out by individuals, whether carried out online or in a specific place.
Thus, all digital platforms offering services performed by workers are therefore likely to be affected by the new European directive, with some legal contribution to the recognition of a salaried status for platform workers.
In this regard, the directive’s draft suggested five criteria to determine whether “the digital platform” should be considered as an employer:
• The platform sets the level of remuneration;
• The platform requires the worker to comply with specific binding rules regarding appearance, behavior towards the service recipient or performance of the work;
• The platform supervises the execution of the work or verifies the quality of the work results, including by electronic means;
• The platform effectively restricts, including through sanctions, the freedom to organise its work, in particular the freedom to choose working hours or periods of absence, to accept or refuse tasks or to use subcontractors or substitutes;
• The platform effectively restricts the ability to build up a clientele or provide services for a third party.
If the platform meets at least two of these five criteria, it is legally presumed to be an employer and the workers of this platform must benefit from the rights attached to the employee status (in particular in terms of minimum wage, paid holidays, working time, health and contingency insurances, etc.).
The platform would nevertheless be entitled to challenge this qualification, provided that it can prove that its workers are performing a work service in complete independence.
In France, the business model of digital platforms is mainly based on the employment of self-employed workers. In this regard, it should be noted that pursuant to Article L. 8221-6 of the French Labor Code, natural persons registered in the Trade and Companies Register (RCS) are presumed not to be hired under a “digital employment” contract. In other words, the self-employed worker of a digital platform is deemed a non-employee.
However, the self-employed worker can overturn this presumption of non-salaried status, if he/she manages to prove the existence of a subordination relationship with the platform. He/she could obtain the re-characterisation of his/her service contract into an employment contract, if he/she is able to demonstrate that he/she received orders and instructions from the platform, and that the latter was able to monitor the performance of his/her work, and if necessary, sanction him/her in case of breach of his/her contractual obligations.
Once the EU “digital platform” directive is adopted, the EU member states will have a period of time (usually about two years) to transpose it into domestic law.
However, local courts, particularly French courts, could be inspired by the criteria laid down by the directive when dealing with a request for re-characterisation of an employment contract between a self-employed worker and a platform.