82 Amendments of Radan KANEV related to 2021/0414(COD)
Amendment 173 #
Proposal for a directive
Recital 2
Recital 2
(2) This Directive respects fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union (‘the Charter’). In particular, Article 315 of the Charter provides forto the right to work and to pursue a freely chosen or accepted occupation as well as to provide services. Article 31 of the Charter supplements the right to work with the right of every worker to working conditions which respect his or her health, safety and dignity. Article 27 of the Charter protects the workers’ right to information and consultation within the undertaking. Article 8 of the Charter provides that everyone has the right to the protection of personal data concerning him or her. Article 16 of the Charter recognises the freedom to conduct a business.
Amendment 178 #
Proposal for a directive
Recital 3
Recital 3
(3) Principle No 5 of the European Pillar of Social Rights, proclaimed at Gothenburg on 17 November 201753 , provides that, regardless of the type and duration of the employment relationship, workers have the right to fair and equal treatment regarding working conditions, access to social protection and training; that, in accordance with legislation and collective agreements, the necessary flexibility for employers to adapt swiftly to changes in the economic context is to be ensured; and that innovative forms of work that ensure quality working conditions are to be fostered, that entrepreneurship and self-employment are to be encouraged and that occupational mobility is to be facilitated, thus strongly reaffirming the right under Article 15 of the Charter of Fundamental Rights and the basic freedom of choice every person enjoys when engaging in work and the fundamental principle of free market initiative, including on the labour market. The Porto Social Summit of May 2021 welcomed the Action Plan accompanying the Social Pillar54 as guidance for its implementation. __________________ 53 Interinstitutional Proclamation on the European Pillar of Social Rights (OJ C 428, 13.12.2017, p. 10). 54 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, ‘The European Pillar of Social Rights Action Plan’, COM(2021) 102 final, 4.3.2021.
Amendment 215 #
Proposal for a directive
Recital 6
Recital 6
(6) Platform work can provide opportunities for accessing the labour market more easily, gaining additional income through a secondary activity or enjoying some flexibility create employment, increase choice, provide additional income, and lower barriers to entering the organisation of working timelabour market, especially for vulnerable groups. At the same time, platform work brings challenges, as it can blur the boundaries between employment relationship and self- employed activity, and the responsibilities of employers and workers. Misclassification of the employment status has consequences for the persons affected, as it is likely to restrict access to existing labour and social rights. It also leads to an uneven playing field with respect to businesses that classify their workers correctly, and it has implications for Member States’ industrial relations systems, their tax base and the coverage and sustainability of their social protection systems. While such challenges are broader than platform work, they are particularly acute and pressing in the platform economy.
Amendment 218 #
Proposal for a directive
Recital 6 a (new)
Recital 6 a (new)
(6a) Platform work may facilitate flexibility and optimisation of resources, and provide opportunities for both people working in or through digital labour platforms and clients, and the matching of demand for and supply of services.
Amendment 220 #
Proposal for a directive
Recital 6 b (new)
Recital 6 b (new)
(6b) Innovation in digital tools is a precondition for platform work and can contribute to growth in times of crisis and recovery.
Amendment 221 #
Proposal for a directive
Recital 6 c (new)
Recital 6 c (new)
(6c) Platform work can offer advantages for students and those who wish to combine study and work at the same time, as well as creating access to employment for young people not in education, employment or training (NEETs), and people with lower skill levels;
Amendment 222 #
Proposal for a directive
Recital 6 d (new)
Recital 6 d (new)
(6d) The trend towards remote working in many sectors, and especially online- based trade and services is unavoidable and favourable for many companies and workers and the booming development of digital technologies predetermines many new and unpredictable opportunities for so-called non-standard forms of work and employment.
Amendment 223 #
Proposal for a directive
Recital 6 e (new)
Recital 6 e (new)
(6e) The labour and social security legislation of most Member States are generally unprepared to the challenges of the digital world and digitalized labour market in particular, which is causing grave risks to both people, engaged in digitally based work, and to existing solidarity-based healthcare and social security models. If not tackled accordingly, the above-mentioned risks might jeopardise the entire European model of the social market economy and the goals of the European Pillar of Social Rights, whereas adapting to technological progress might provide the solutions for adaptation of the European social model to the realities of the 21st century;
Amendment 227 #
Proposal for a directive
Recital 7
Recital 7
(7) Court cases in several Member States have shown the persistence of misclassification of the employment status in certain types of platform work, in particular in sectors where digital labour platforms exert a certain degree of control over the remuneration and performance of work. While digital labour platforms frequently classify persons working through them as self-employed or ‘independent contractors’, many courts have found that the platforms exercise de facto direction and control over those persons, often integrating them in their main business activities and unilaterally determining the level of remuneration. Those courts have therefore reclassifiedvarious aspects of the performance of the work. Those courts have therefore reclassified, based on different criteria and national legislative solutions, purportedly self-employed persons as workers employed by the platforms. However, various national legislations, social dialogue practices and case law has resulted in diverse outcomes and digital labour platforms have adapted their business model in various ways, thus increasing the lack of legal certainty over the employment status.
Amendment 232 #
Proposal for a directive
Recital 7 a (new)
Recital 7 a (new)
(7a) No legal uncertainty exists for the traditional regulated liberal professions, irrespective whether their performance is facilitated by digital means or not. Further more, the question of the classification of regulated liberal professions is often clearly regulated on national level and often free lancers, engaged in liberal professions, are legally prohibited from employment under employment contract.
Amendment 233 #
Proposal for a directive
Recital 7 b (new)
Recital 7 b (new)
(7b) On the contrary, self-employed persons engaged in the provision of various services, without prejudice to the level of qualification and incomes (such as designers, IT experts, performers, drivers, craftsmen, repairmen, housekeepers, delivery personnel etc.), are often subject to employment status misclassification and so called bogus self employment, while a large number of them are voluntarily choosing the flexibility and freedom of choice, provided by self employment.
Amendment 234 #
Proposal for a directive
Recital 7 c (new)
Recital 7 c (new)
(7c) No definition of 'worker’ at European level exists, to resolve the above mentioned uncertainties, and the case law of the CJEU has established criteria for determining the status of a worker and a self employed person, while leaving most of the competences to the Member States;
Amendment 244 #
Proposal for a directive
Recital 9
Recital 9
(9) When platforms operate in several Member States or across borders, it is often unclear where the platform work, especially online based, is performed and by whom. Also, national authorities do not have easy access to data on digital labour platforms, including the number of persons performing platform work, their employment status, and their working conditions. This complicates the enforcement of applicable national and European rules, including in respect of labour law, health and social protection. security, social protection and taxation.
Amendment 272 #
Proposal for a directive
Recital 15
Recital 15
(15) In addition, the Commission held extensive exchanges with relevant stakeholders, including digital labour platforms, associations of persons performing platform work, experts from academia, Member States and international organisations and representatives of civil society. It is of utmost importance for these consultations to continue after the adoption of this Directive, including social partners at all levels, in order to guarantee the smooth transposition and implementation of the Directive and provide for a timely revision, based on lessons learned.
Amendment 293 #
Proposal for a directive
Recital 18
Recital 18
(18) Digital labour platforms differ from other online platforms in that they organise work performed by individuals at the request, one-off or repeated, of the recipient of a service provided by the platform. Organising work performed by individuals should imply at a minimum a significantdetermining role in matching the demand for the service with the supply of labour by an individual who has a contractual relationship with the digital labour platform and who is available to perform a specific task, and can include other activities such as processing payments. Online platforms which do not organise the work performed by individuals but merely provide the means by which service providers can reach the end-user, for instance by advertising offers or requests for services or aggregating and displaying available service providers in a specific area, without any further involvement, should not be considered a digital labour platform. The definition of digital labour platforms should not include providers of a service whose primary purpose is to exploit or share assets, such as short-term rental of accommodation. It should be limited to providers of a service for which the organisation of work performed by the individual, such as transport of persons or goods or cleaning, constitutes a determining, necessary and essential and not merely a minor and purely ancillary component.
Amendment 297 #
Proposal for a directive
Recital 18 a (new)
Recital 18 a (new)
(18a) Social dialogue and collective bargaining are of utmost importance for achieving the goals of the present Directive. However, digitally based labour market practices require the use of new digital technologies in organizing social dialogue, too. Therefore, traditional trade union organizations might prove unsuitable for organizing platform workers or collective agreements among self-employed persons, engaged in platform work, especially when established trade unions are not ready to adapt to new digital realities, so new forms of organization of workers should be made available by the Member States.
Amendment 310 #
Proposal for a directive
Recital 20
Recital 20
(20) In its case law, the Court of Justice has established criteria for determining the status of a worker62 . The interpretation by the Court of Justice of those criteria should be taken into account in the implementation of this Directive. The abuse of the status of self-employed persons, as defined in national law, either at national level or in cross-border situations, is a form of falsely declared work that is frequently associated with undeclared work. False self-employment occurs when a person is declared to be self- employed while fulfilling the conditions characteristic of an employment relationship, in order to avoid certain legal or fiscal obligations. __________________ 62 Judgments of the Court of Justice of 3 July 1986, Deborah Lawrie-Blum v Land Baden-Württemberg, C-66/85, ECLI:EU:C:1986:284; 14 October 2010, Union Syndicale Solidaires Isère v Premier ministre and Others, C-428/09, ECLI:EU:C:2010:612; 4 December 2014, FNV Kunsten Informatie en Media v Staat der Nederlanden, C-413/13, ECLI:EU:C:2014:2411; 9 July 2015, Ender Balkaya v Kiesel Abbruch- und Recycling Technik GmbH, C-229/14, ECLI:EU:C:2015:455; 17 November 2016, Betriebsrat der Ruhrlandklinik gGmbH v Ruhrlandklinik gGmbH, C-216/15, ECLI:EU:C:2016:883; 16 July 2020, UX v Governo della Repubblica italiana, C- 658/18, ECLI:EU:C:2020:572; and order of the Court of Justice of 22 April 2020, B v Yodel Delivery Network Ltd, C-692/19, ECLI:EU:C:2020:288.
Amendment 311 #
Proposal for a directive
Recital 22
Recital 22
(22) Where the existence of an employmentExperience shows, that when national law attempts an undiscriminatory reclassification of whole sectors of the digitally based labour market, this regulationship is established based on facts, the party acting as employer should be clearly identif leads to loss of jobs, rise in the undeclared work and/or extensive and dangerous use of subcontracting chains, often resulting in more precarious working conditions for the most vulnerable persons, engaged in platform work, such as minorities, migrants, young people with no qualification or students from low-income familieds and that party should fulfil all the obligations resulting from its role as employer/or migrant and minority background, lone parents etc. It is therefore essential, that the Member States, while transposing this Directive, do not reclassify whole sectors or types of services, neither digital platforms per se, but regulate strictly on precise criteria.
Amendment 323 #
Proposal for a directive
Recital 23
Recital 23
(23) Ensuring correct determination of the employment status should not prevent the improvement of working conditions of genuine self-employed persons performing platform work. Where a digital labour platform decides – on a purely voluntary basis, as a result of collective bargaining, based on the Code of Conduct agreed among the relevant stakeholders, or in agreement with the persons concerned – to pay for social protection, accident insurance or other forms of insurance, training measures or similar benefits to self-employed persons working through that platform, those benefits as such should not be regarded as determining elements indicating the existence of an employment relationship.
Amendment 324 #
Proposal for a directive
Recital 23
Recital 23
(23) Ensuring correct determination of the employment status should not prevent the improvement of working conditions of genuine self-employed persons performing platform work. Where a digital labour platform decides – on a purely voluntary basis, as a result of collective bargaining or in agreement with the persons concerned – to pay for social protection, accident insurance or other forms of insurance, training measures or similar benefits to self-employed persons working through that platform, those benefits as such should not be regarded as determining elements indicating the existence of an employment relationship.
Amendment 330 #
Proposal for a directive
Recital 24
Recital 24
(24) When digital labour platforms control certainkey and determining elements of the performance of work, they act like employers in an employment relationship. Direction and full control, orcombined with legal subordination, is an essential element of the definition of an employment relationship in the Member States and in the case-law of the Court of Justice. Therefore contractual relationships in which digital labour platforms exert a certain level of control over certain key and determining elements of the performance of work, clearly established under national law and court practice or under the case-law of the CJEU and the present Directive, should be deemed, by virtue of a legal presumption under national law, to be an employment relationship between the platform and the person performing platform work through it. As a result, that person, unless performing regulated liberal profession legally or traditionally requiring free lancer status, should be classified as a worker having all the rights and obligations in accordance with that status, as laid down in national and Union law, collective agreements and practice. The legal presumption should apply in all relevant administrative and legal proceedings and should benefit the person performing platform work. Authorities in charge of verifying the compliance with or enforcing relevant legislation, such as labour inspectorates, social protection bodies or tax authorities, should also be able to rely on that presumption. Member States should put in place a national framework to reduce litigation and increase legal certainty.
Amendment 339 #
Proposal for a directive
Recital 25
Recital 25
(25) Criteria indicating that a digital labour platform controls the performance of work should be included in the Directive in order to supplement existing national presumptions and make the Union legal presumption operational in all Member States 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. The criteria should includebe based on Art. 15 of the CFR and the right to engage in work. Therefore, the main criteria should be the freedom of the person, engaged in platform work, to provide services to unlimited number of clients and/or through unlimited number of platforms and other digital and offline means. They could also include additional concrete elements showing that the digital labour platform, for instance, determines in practice and not merely recommends the working conditions or the remuneration or both, gives, gives detailed instructions on how the work is to be performed or prevents the person performing platform work from developing business contacts with potential clients. In order for it to be effective in practice, twoand avoid legal uncertainty, the majority of the additional criteria should be always fulfilled to trigger the application of the presumption,. At the same time, the criteria should not cover situations where the persons performing platform work are genuine self-employed. Genuine self- employed persons are themselves responsible vis-à-vis their customers for how they perform their work and the quality of their outputs. The freedom to choose working hours or periods of absence, to refuse tasks, to use subcontractors or substitutes or to work for any third -party is characteristic of genuine self-employment. Therefore, de facto restricting such discretions by a number of conditions or through a system of sanctions, should also be considered as an element of controlling the performance of work. Closely supervising the performance of work or thoroughly verifying the quality of the results of that work, including through electronic means, which does not merely consist in using reviews or ratings by the recipients of the service, should also be considered as an element of controlling the performance of work. At the same time, digital labour platforms should be able to design their technical interfaces in a way to ensure good consumer experience. Measures or rules which are required by law orapplicable local law or regulations, or collective bargaining agreements, or it is necessary to safeguard the health and safety of the recipients of the service, or it is required to provide satisfactory consumer service, or it is required to prevent fraud at the expense of consumers or platform workers, or it is required to reach goals related to zero emission mobility, should not be understood as controlling the performance of work 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.
Amendment 357 #
Proposal for a directive
Recital 26 a (new)
Recital 26 a (new)
(26a) Code of Conduct based on the agreement among relevant stakeholders as a form of self-regulation focused on improving working conditions of genuine self-employed persons performing platform work including their social protection should be encouraged by the Commission and Member States. Improving working conditions of genuine self-employed persons performing platform work by the platforms involved in the Code of Conduct shall not be considered as fulfilling the criteria as outlined by Article 4 paragraph 2.
Amendment 358 #
Proposal for a directive
Recital 26 a (new)
Recital 26 a (new)
(26a) Collective bargaining agreements between representatives of platform workers and digital labour platforms focusing on the working conditions of platform workers are encouraged and the competent authorities in Member States shall not consider any of the criteria in Article 4 paragraph 2 met where they are included in collective bargaining negotiations.
Amendment 375 #
Proposal for a directive
Recital 28
Recital 28
(28) The relationship between a person performing platform work and a digital labour platform may not meet the requirements of an employment relationship in accordance with the definition laid down in the law, collective agreements or practice in force of the respective Member State with consideration to the case-law of the Court of Justice, even though the digital labour platform controls the performance of work on a given aspect. Member States should ensure the possibility to rebut the legal presumption in legal or administrative proceedings or both by proving, on the basis of the aforementioned definition, that the relationship in question is not an employment relationship. The shift in the burden of proof to digital labour platforms is justified by the fact that they have a complete overview of all factual elements determining the relationship, in particular the algorithms through which they manage their operations. Legal proceedings and administrative proceedings initiated by the digital labour platforms in order to rebut the legal presumption should not have a suspensive effect on the application of the legal presumption, in order to avoid the triggering and subsequent rebuttal in cases of genuine self-employment. A successful rebuttal of the presumption in administrative proceedings should not preclude the application of the presumption in subsequent judicial proceedings. When the person performing platform work who is the subject of the presumption seeks to rebut the legal presumption, the digital labour platform should be required to assist that person, notably by providing all relevant information held by the platform in respect of that person. Member States should provide the necessary guidance for procedures to rebut the legal presumption.
Amendment 379 #
Proposal for a directive
Recital 29 a (new)
Recital 29 a (new)
(29a) In the interest of legal certainty Member States shall provide digital labour platforms and platform workers with the right to consultation. Under the process digital labour platforms and platform workers would have the option to request to the competent authority to pre- emptively assess the existence of an employment relationship on the basis of the terms and conditions of the relationship and justify its finding. The outcome of the process, although not legally binding, will allow digital labour platforms, platform workers and local authorities to assess the level of control exerted by the platform ahead of the presumption or rebuttal processes.
Amendment 389 #
Proposal for a directive
Recital 32
Recital 32
(32) Digital labour platforms should be subject to transparency obligations in relation to automated monitoring and decision-making systems that are used to monitor, supervise or evaluate the work performance through electronic means; and automated decision-making systems which are used to take or support decisions that have a significantly a effect on working conditions, including access of persons performing platform work to work assignments, their earnings, their occupational safety and health, their working time, their promotion and their contractual status, including the restriction, suspension or termination of their account. In addition to what is provided in Regulation (EU) 2016/679, information concerning such systems should also be provided where decisions are not solely based on automated processing, provided that they are supported by automated systems. It should also be specified which kind of information should be provided to persons performing platform work regarding such automated systems, as well as in which form and when it should be provided. The obligation of the controller under Articles 13, 14 and 15 of Regulation (EU) 2016/679 to provide the data subject with certain information in relation to the processing of personal data concerning the data subject as well as with access to such data should continue to apply in the context of platform work. Information on automated monitoring and decision-making systems should also be provided to representatives of persons performing platform work and to national labour authorities at their request, in order to enable them to exercise their functions.
Amendment 393 #
Proposal for a directive
Recital 33
Recital 33
(33) Digital labour platforms should not be required to disclose the detailed functioning of their automated monitoring and decision-making systems, including algorithms, or other detailed data that contains commercial secrets, price sensitive information or is protected by intellectual property rights. Digital labour platforms should also not be required to disclose information that, with reasonable certainty, would result in the enabling of deception of consumers or consumer harm through the manipulation of the system. However, the result of those considerations should not be a refusal to provide all the information required by this Directive.
Amendment 433 #
Proposal for a directive
Recital 44
Recital 44
(44) Representatives of persons performing platform work should be able to represent one or several persons performing platform work in any judicial or administrative procedure to enforce any of the rights or obligations arising from this Directive. Bringing claims on behalf of or supporting several persons performing platform work is a way to facilitate proceedings that would not have been brought otherwise because of procedural and financial barriers or a fear of reprisalsExcept to the extent that national law provides for it, individuals should not be subject to collective action on their behalf without having agreed explicitly to the action. This is in order to ensure that collective action by representatives of persons performing platform work would not result in persons performing platform work being reclassified against their will.
Amendment 439 #
Proposal for a directive
Recital 45
Recital 45
(45) Platform work is characterised by the lack of a common workplace where workers can get to know each other and communicate with each other and with their representatives, also in view of defending their interests towards the employer. It is therefore necessary to create digital communication channels, in line with the digital labour platforms’ work organisation, where persons performing platform work can exchange with each other and be contacted by their representatives. Digital labour platforms should create such communication channels within their digital infrastructure or through similarly effective means, while respecting the protection of personal data and refraining from accessing or monitoring those communicationsfacilitate the establishment of such communication channels while respecting the protection of personal data.
Amendment 443 #
Proposal for a directive
Recital 46
Recital 46
(46) In administrative or judicial proceedings regarding the correct determination of the employment status of persons performing platform work, the elements regarding the organisation of work allowing to establish the employment status and in particular whether the digital labour platform controls certainlimits the engagement in work for other clients or through other platforms or digital and offline means, as well as whether it controls certain key and determining elements of the performance of work may be in the possession of the digital labour platform and not easily accessible to persons performing platform work and competent authorities. National courts or competent authorities should therefore be able to order the digital labour platform to disclose any relevant evidence which lies in their control, including confidential information, subject to effective measures to protect such information.
Amendment 458 #
Proposal for a directive
Article 1 – paragraph 1
Article 1 – paragraph 1
1. The purpose of this Directive is to improve the working conditions of persons performingengaged in platform work, except those performing regulated liberal professions as free lancers, and especially platform workers: (i) by ensuring correct determination of their employment status, of dependent contractors; (ii) by promoting transparency, fairness and accountability in algorithmic management in platform work and; (iii) by improving transparency in platform work, including in cross-border situations, while supporting the conditions for the sustainable growth of digital labour platforms in the Union. ; (iiii) by acknowledging the specifics of self-employed platform workers, including people transitioning from one status to another or who have both statuses, but not using working-time limitations as a reason of exemption from social coverage.
Amendment 475 #
Proposal for a directive
Article 1 – paragraph 2 a (new)
Article 1 – paragraph 2 a (new)
2a. This Directive shall be without prejudice to the full respect of the autonomy of social partners, as well as their right to negotiate and conclude collective agreements.
Amendment 499 #
Proposal for a directive
Article 2 – paragraph 1 – point 2
Article 2 – paragraph 1 – point 2
(2) ‘platform work’ means any work essentially organised through a digital labour platform and performed in the Union by an individual on the basis of a direct contractual relationship between the digital labour platform and the individual, irrespective of whether an case no contractual relationship exists between the individual and the recipient of the service;
Amendment 504 #
Proposal for a directive
Article 2 – paragraph 1 – point 3
Article 2 – paragraph 1 – point 3
(3) ‘person performingengaged in platform work’' means any individual performing platform work, irrespective of the contractual designation of the relationship between that individual and the digital labour platform by the parties involved;
Amendment 511 #
Proposal for a directive
Article 2 – paragraph 1 – point 4 a (new)
Article 2 – paragraph 1 – point 4 a (new)
(4a) “self-employed person», engaged in platform work means any person, engaged in platform work, who does not have employment contract or employment relations with the platform under national or Union law presumption, irrespective of the task she/he performs or services she/he provides, qualification, time dedicated to platform work through the respective platform and income level, including, but not limited to persons, performing regulated professions as free- lancers and persons, performing marginal work.
Amendment 517 #
Proposal for a directive
Article 2 – paragraph 1 – point 5
Article 2 – paragraph 1 – point 5
(5) ‘'representatives’ means the platform workers’ organisations or representatives provided for by national law or practices, or both;
Amendment 525 #
Proposal for a directive
Article 2 – paragraph 1 – point 6 a (new)
Article 2 – paragraph 1 – point 6 a (new)
Amendment 540 #
Proposal for a directive
Article 2 – paragraph 2
Article 2 – paragraph 2
2. The definition of digital labour platforms laid down in paragraph 1, point (1), shall not include providers of a service whose primary purpose is to exploit or share assets or to resell goods or services. It shall be limited to providers of a service for which the organisation of work performed by the individual constitutes not merely a minor and purely ancillary component.
Amendment 544 #
Proposal for a directive
Article 3 – paragraph 1
Article 3 – paragraph 1
1. Member States shall have appropriate procedures in place to verify and ensure the correct determination of the employment status of persons performing platform work, with a view to ascertaining the existence of an employment relationship as defined by the law, collective agreements or. Where such procedures already exist, they shall be harmonized with this Directive through new legislation and collective agreements taking into account the practice in force in the Member States with consideration to the case-law of the Court of Justice, and ensuring that they enjoy the rights deriving from Union law applicable to workers.
Amendment 555 #
Proposal for a directive
Article 3 – paragraph 2
Article 3 – paragraph 2
2. The determination of the existence of an employment relationship shall be guided primarily by the facts relating to the actual performance of work, taking into account the use of algorithms in the organisation of platform work, by the individual in question on a case by case basis irrespective of how the relationship is classified in any contractual arrangement that may have been agreed between the parties involved. Where the existence of an employment relationship is established based on facts, the party assuming the obligations of the employer shall be clearly identified in accordance with national legal systems.
Amendment 565 #
Proposal for a directive
Article 3 a (new)
Article 3 a (new)
Article 3a This Directive shall apply without prejudice to the Directive 2008/104/EC.
Amendment 580 #
Proposal for a directive
Article 4 – paragraph 1 – introductory part
Article 4 – paragraph 1 – introductory part
1. The contractual relationship between a digital labour platform that controls, within the meaning of paragraph 2, the performance of work and a person performing, as described in the criteria outlined in paragraph 2, and a platform worker through that platform shall be legally presumed to be an employment relationship. To that effect, Member States shall establish a framework of measures, supplementing existing ones in accordance with their national legal and judicial systems.
Amendment 590 #
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 1
Article 4 – paragraph 1 – subparagraph 1
The legal presumption shall apply, along with relevant national legislation, in all relevant administrative and legal proceedings under relevant national law. Competent national authorities verifying compliance with or enforcing relevant legislation shall be able to rely on that presumption. Members States shall not amend procedures and competent authorities, already engaged in the enforcement of existing presumptions and procedures.
Amendment 601 #
Proposal for a directive
Article 4 – paragraph 2 – introductory part
Article 4 – paragraph 2 – introductory part
2. Controlling the performance of work within the meaning of paragraph 1 shall be understood as fulfilling at least two of the following: lways, in view of Article 15 of the Charter of Fundamental Rights and the right to engage in work, when the contractual relationship with the platform is limiting the freedom of the person, engaged in platform work, to provide services to unlimited number of clients and/or through unlimited number of platforms and other digital and offline means. Controlling of the performance of work could also be understood, based on national legislation, collective agreements and practice, as fulfilling a majority of the following, except where it is required by applicable local law or regulations, or collective bargaining agreements, or it is necessary to safeguard the health and safety of the recipients of the service, or it is required to provide satisfactory consumer service, or it is required to prevent fraud at the expense of consumers or platform workers, or it is required to reach goals related to zero emission mobility:
Amendment 605 #
Proposal for a directive
Article 4 – paragraph 2 – introductory part
Article 4 – paragraph 2 – introductory part
2. Controlling the performance of work within the meaning of paragraph 1 shall be understood as fulfilling at least two majority of the following, without prejudice to collective agreements between digital labour platforms and persons performing platform work:
Amendment 614 #
Proposal for a directive
Article 4 – paragraph 2 – point a
Article 4 – paragraph 2 – point a
(a) effectively determining, or setting upper limits for the level of remunerationand limiting the overall level of remuneration of the platform worker;
Amendment 616 #
Proposal for a directive
Article 4 – paragraph 2 – point a
Article 4 – paragraph 2 – point a
(a) effectivelyDe facto determining, or setting upper limits for thethe total level of remuneration, beyond what is required by law;
Amendment 624 #
Proposal for a directive
Article 4 – paragraph 2 – point b
Article 4 – paragraph 2 – point b
(b) requiring the person performing platform work to respect specific binding rules with regard to appearance, conduct towards the recipient of the service or performance of the work, beyond what is required for compliance with applicable local law or regulations, or collective bargaining agreements, or is necessary to safeguard the health and safety of the recipients of the service, or is required to provide satisfactory consumer service, or is required to prevent fraud at the expense of consumers or platform workers, or is required to reach goals related to zero emission mobility;
Amendment 627 #
Proposal for a directive
Article 4 – paragraph 2 – point b
Article 4 – paragraph 2 – point b
(b) requiring the person performing platform work to respect specificextensive binding rules with regard to appearance, conduct towards the recipient of the service or performance of the work;, beyond what is required by law or reasonably necessary to safeguard health and safety or to ensure the essential functioning of the service.
Amendment 638 #
Proposal for a directive
Article 4 – paragraph 2 – point c
Article 4 – paragraph 2 – point c
(c) closely supervising the performance of work or verifyingthoroughly verifying and taking actions based on the quality of the results of the work including by electronic means;, beyond what is required for compliance with local law, or regulations or is necessary to safeguard the health and safety of platform workers, or the recipients of the service or is required to provide satisfactory consumer service, or is required to prevent fraud at the expense of consumers or individuals working through platforms, or is required to reach goals related to zero emission mobility.
Amendment 640 #
Proposal for a directive
Article 4 – paragraph 2 – point c
Article 4 – paragraph 2 – point c
(c) supervising the performance of work or verifying the quality of the results of the work including by eleincluding by electronic means beyond what is required by law or reasonably necessary to safeguard health and safety or to ensure the essential functrionic means;ng of the service.
Amendment 648 #
Proposal for a directive
Article 4 – paragraph 2 – point d
Article 4 – paragraph 2 – point d
(d) effectively restricting the freedom, including through sanctions, to organise one’s work, in particular the discretion to choose one’s working hours or periods of absence, to accept or to refuse tasks or to use subcontractors or substitutes;
Amendment 649 #
Proposal for a directive
Article 4 – paragraph 2 – point d
Article 4 – paragraph 2 – point d
(d) effectivelyDe facto restricting the freedom, including through sanctions, to organise one’s work, in particular the discretion to choose one’s working hours or periods of absence, to accept or to refuse tasks or to use subcontractors or substitutes;
Amendment 650 #
Proposal for a directive
Article 4 – paragraph 2 – point d a (new)
Article 4 – paragraph 2 – point d a (new)
(da) effectively restricting the freedom to accept or to refuse tasks;
Amendment 657 #
Proposal for a directive
Article 4 – paragraph 2 – point e
Article 4 – paragraph 2 – point e
(e) effectivelyde facto restricting the possibility to build a client base or to perform work for any third party.
Amendment 661 #
Proposal for a directive
Article 4 – paragraph 2 – point e a (new)
Article 4 – paragraph 2 – point e a (new)
(ea) restricting the freedom to use subcontractors or substitutes unless where such freedoms are explicitly prohibited by any applicable legal or regulatory requirements; it is understood that the platform worker should remain free to increase his earnings with incentives, bonuses or any other platform’s offers, as long as the said offers do not constitute a condition to access the platform;
Amendment 662 #
Proposal for a directive
Article 4 – paragraph 2 – point e b (new)
Article 4 – paragraph 2 – point e b (new)
(eb) effectively restricting the possibility to build a client base;
Amendment 714 #
Proposal for a directive
Article 4 – paragraph 3 – point d a (new)
Article 4 – paragraph 3 – point d a (new)
(da) develop precise recommendations providing guidance for digital labour platforms, persons performing platform work and social partners to understand and implement the legal presumption including on the procedures for rebutting it in accordance with Article 5;
Amendment 722 #
Proposal for a directive
Article 4 – paragraph 4 a (new)
Article 4 – paragraph 4 a (new)
4a. The presumption shall not apply (except in the case of effectively limiting the freedom to provide services to third parties and/or through other platforms as per Article 4 paragraph 2 introductory part) to persons, engaged in platform work, who are: (a) working less than an average of three hours per week for a reference period of four consecutive weeks, as provided in Article 1 paragraph 3 of the Transparent and Predictable Working Conditions Directive (marginal work) through one digital labour platform; (b) performing a regulated liberal profession, based on their national legislation’s criteria (c) students under regular form of study under their respective national regulation; (d) asylum seekers and persons under temporary protection within the 6 month period of temporary protection.
Amendment 725 #
Proposal for a directive
Article 4 – paragraph 4 b (new)
Article 4 – paragraph 4 b (new)
4b. Ensuring correct determination of the employment status should not prevent the improvement of working conditions of genuine self-employed persons performing platform work. Where a digital labour platform decides – on a purely voluntary basis or in agreement with the persons concerned – to pay for social protection, accident insurance or other forms of insurance, training measures or similar benefits to self- employed persons working through that platform, those benefits as such should not be regarded as determining elements indicating the existence of an employment relationship.
Amendment 726 #
Proposal for a directive
Article 4 a (new)
Article 4 a (new)
Article 4a Ensuring correct determination of the employment status should not prevent the improvement of working conditions of genuine self-employed persons performing platform work. Where a digital labour platform decides – on a purely voluntary basis or in agreement with the persons concerned or based on the Code of Conduct – to pay for social protection, accident insurance or other forms of insurance, training measures or similar benefits to self-employed persons working through that platform, those benefits as such should not be regarded as determining elements indicating the existence of an employment relationship.
Amendment 740 #
Proposal for a directive
Article 5 – paragraph 2
Article 5 – paragraph 2
Where the digital labour platform argues that the contractual relationship in question is not an employment relationship as defined by the law, collective agreements or practice in force in the Member State in question, with consideration to the case- law of the Court of Justice, the burden of proof shall be on the digital labour platform. Such proceedings shall not have suspensive effect on the application of the legal presumptionbe held before the respective national authority under the relevant national procedure, especially in case a legal presumption and/or procedure for granting employment status on national level already exists. The suspensive effect on the application of the legal presumption lies entirely within the competence of the respective Member State.
Amendment 745 #
Proposal for a directive
Article 5 – paragraph 2
Article 5 – paragraph 2
Where the digital labour platform argues that the contractual relationship in question is not an employment relationship as defined by the law, collective agreements or practice in force in the Member State in question, with consideration to the case- law of the Court of Justice, the burden of proof shall be on the digital labour platform. Such proceedings shall not have suspensive effect on the application of the legal presumption.
Amendment 752 #
Proposal for a directive
Article 5 – paragraph 3
Article 5 – paragraph 3
Where the person performing the platform work argues that the contractual relationship in question is not an employment relationship as defined by the law, collective agreements or practice in force in the Member State in question, with consideration to the case-law of the Court of Justice, the digital labour platform shall be required to assist the proper resolution of the proceedings, notably by providing all relevant information held by it. Such proceedings shall be held before the respective national authority under the relevant national procedure, especially in case a legal presumption and/or procedure for granting employment status on national level already exists.
Amendment 761 #
Proposal for a directive
Article 5 – paragraph 3 a (new)
Article 5 – paragraph 3 a (new)
Member States shall develop a process according to which digital labour platforms and platform workers are granted consultation rights under which national and local authorities pre- emptively assess, approve and justify the employment status of platform workers on the basis of the control of the performance of work within the meaning of Article 4 paragraph 2 of the present Directive.
Amendment 770 #
Proposal for a directive
Article 5 a (new)
Article 5 a (new)
Article 5a Improvement of working conditions for genuine self-employed persons performing platform work Ensuring correct determination of the employment status shall not prevent the improvement of working conditions of genuine self-employed persons performing platform work. Where a digital labour platform decides, in agreement with the persons concerned, to pay for social protection, accident insurance or other forms of insurance, training measures or similar benefits to self-employed persons working through that platform, those benefits as such shall not be regarded as determining elements indicating the existence of an employment relationship.
Amendment 783 #
Proposal for a directive
Article 6 – paragraph 1 – point a
Article 6 – paragraph 1 – point a
(a) automated monitoring systems which are used to monitor, supervise or evaluate the work performance of platform workers through electronic means;
Amendment 785 #
Proposal for a directive
Article 6 – paragraph 1 – point b
Article 6 – paragraph 1 – point b
(b) automated decision-making systems which are used to take or support decisions that significantly affect those platform workers’ working conditions, in particular their access to work assignments, their earnings, their occupational safety and health, their working time, their promotion and their contractual status, including the restriction, suspension or termination of their account.
Amendment 795 #
Proposal for a directive
Article 6 – paragraph 2 – point b – point iii
Article 6 – paragraph 2 – point b – point iii
Amendment 804 #
Proposal for a directive
Article 6 – paragraph 3
Article 6 – paragraph 3
3. Digital labour platforms shall provide the information referred to in paragraph 2 in the form of a document which may be in electronic format. They shall provide that information at the latest on the first working day, or prior to the first task assigned as well as in the event of substantial changes and at any time upon the platform workers’ request. The information shall be presented in a concise, transparent, intelligible and easily accessible form, using clear and plain language.
Amendment 812 #
Proposal for a directive
Article 6 – paragraph 5 – introductory part
Article 6 – paragraph 5 – introductory part
5. Digital labour platforms shall not process any personal data concerning platform workers that are not intrinsically connected to and strictly necessary for the performance of the contract between the platform worker and theWithout prejudice to articles 6 and 9 of the GDPR digital labour platform. In particular theys shall not:
Amendment 819 #
Proposal for a directive
Article 6 – paragraph 5 – point b
Article 6 – paragraph 5 – point b
(b) process any personal data relating to the health of the platform worker, except in cases referred to in Article 9(2), points (ba) to (j) of Regulation (EU) 2016/679;
Amendment 842 #
Proposal for a directive
Article 6 a (new)
Article 6 a (new)
Article 6a Unless otherwise provided in this Directive or in the national law to which the platform operator is subject, in particular legislation concerning access to information, the platform operator shall not be obliged to disclose information which they have designated as confidential.
Amendment 849 #
Proposal for a directive
Article 7 – paragraph 1
Article 7 – paragraph 1
1. Member States shall ensure that digital labour platforms regularlyperiodically, and not less than every two years, monitor and evaluate the impact of individual decisions taken or supported by automated monitoring and decision-making systems, as referred to in Article 6(1), on working conditions.
Amendment 875 #
Proposal for a directive
Article 8 – paragraph 1 – introductory part
Article 8 – paragraph 1 – introductory part
1. Member States shall ensure that platform workers have the right to obtain an explanation from the digital labour platform for any decision taken or supported by an automated decision- making system that significantly affects the platform worker’s working conditions, as referred to in Article 6(1), point (b). In particularto the extent that this is provided for in Union or Member State law , Member States shall ensure that digital labour platforms provide platform workers with access to a contact person designated by the digital labour platform to discuss and to clarify the facts, circumstances and reasons having led to the decision. Digital labour platforms shall ensure that such contact persons have the necessary competence, training and authority to exercise that function.
Amendment 882 #
Proposal for a directive
Article 8 – paragraph 2 – introductory part
Article 8 – paragraph 2 – introductory part
2. Where platform workers are not satisfied with the explanation or the written statement of reasons obtained or consider that the decision referred to in paragraph 1 infringes their rights, they shall have the right to request the digital labour platform to review that decision. The digital labour platform shall respond to such request by providing the platform worker with a substantiated reply without undue delay and in any event within one week of receiptin line with deadlines outlined in GDPR. That period may be extended by two further months where necessary, taking into account the complexity and number of the requests.
Amendment 930 #
Proposal for a directive
Article 11 – paragraph 1
Article 11 – paragraph 1
Without prejudice to Regulations (EC) No 883/200469 and 987/200970 of the European Parliament and of the Council, Member States shall require digital labour platforms which are employers to declare work performed by platform workers to the competent labour and social protection authorities of the Member State in which the work is performed and to share relevant data , including all health and social security contributions, with those authorities, in accordance with the rules and procedures laid down in the law of the Member States concerned. __________________ 69 Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ L 166, 30.4.2004, p. 1). 70 Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems (OJ L 284, 30.10.2009, p. 1).
Amendment 931 #
Proposal for a directive
Article 11 – paragraph 1 a (new)
Article 11 – paragraph 1 a (new)
Without prejudice to Regulations (EC) No 883/200469 and 987/200970 of the European Parliament and of the Council, Member States shall require digital labour platforms which are not employers to keep record and declare work performed by self-employed persons, engaged with platform work to the competent authorities of the Member State in which the work is performed and to share relevant data, including all health and social security contributions made through the respective platform, if by virtue of law or agreement such payments are made.
Amendment 933 #
Proposal for a directive
Article 11 – paragraph 1 b (new)
Article 11 – paragraph 1 b (new)
Without prejudice to Regulations (EC) No 883/200469 and 987/200970 of the European Parliament and of the Council, Member States shall require digital labour platforms which are not employers to keep record and provide self-employed persons, engaged with platform work with documents, certifying their health and social security contributions and tax payments, contributions made through the respective platform, if by virtue of law or agreement such payments are made, in order to ensure portability of their social rights;
Amendment 934 #
Proposal for a directive
Article 11 – paragraph 1 c (new)
Article 11 – paragraph 1 c (new)
Member States shall ensure full portability of all health and social security contributions, made through platforms, irrespective of the employment classification, and non-discriminatory treatment of persons, engaged in platform work vis-a-vis any other self-employed person or worker.
Amendment 935 #
Proposal for a directive
Article 11 – paragraph 1 d (new)
Article 11 – paragraph 1 d (new)
Member States shall ensure that platform workers enjoy the right to data portability, including reputational data, (and the right not to transport those data), the right to rectification, erasure and to be forgotten in accordance with Regulation (EU) 2016/679;