85 Amendments of Christian SAGARTZ 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 192 #
Proposal for a directive
Recital 4 a (new)
Recital 4 a (new)
(4a) The aim of this Directive is to improve the working conditions and social rights of people working via digital platforms, with a view to promote the conditions for sustainable growth of digital work platforms in the European Union. In order to achieve this, persons working via a digital work platform should be given the legal employment status, to access the applicable national labour and social protection laws. Fairness, transparency and accountability in algorithmic management in the context of platform work should be insured, as well to promote traceability and awareness for developments in platform work.
Amendment 209 #
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 in the organisation of working time. 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. Therefore a robust set of classification criteria and legal certainty are necessary to respect and enable entrepreneurial freedom, to enable an effective classification and prevent bogus self-employment. 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 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 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 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 280 #
Proposal for a directive
Recital 17
Recital 17
(17) This Directive should apply to all digital labour platforms and any individual who performs platform work in the European Union, irrespective of their place of establishment and irrespective of the law otherwise applicable, provided that the platform work organised through that digital labour platform is performed in the Union. A targeted set of mandatory rules should be established at Union level to ensure minimum rights on working conditions in platform work, creating legal certainty for all involved parties.
Amendment 290 #
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 significant 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 or genuine self-employed or intermediate self-employed as defined at national level. 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 necessary and essential and not merely a minor and purely ancillary component.
Amendment 291 #
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 significant 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, or to resell goods or services, or that is of a non-profit making nature. 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 necessary and essential and not merely a minor and purely ancillary component.
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 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 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 334 #
Proposal for a directive
Recital 24
Recital 24
(24) When digital labour platforms control certain elements of the performance of work, restrict a person’s freedom to organise his or her work and control the execution of work, they act like employers in an employment relationship. Direction and control, or 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 elements of the performance of work should be deemed, by virtue of a legal presumption, to be an employment relationship between the platform and the person performing platform work through it. As a result, that person 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 applyrefore platform workers who are in an alleged employment relationship shall fully enjoy the rights provided by national labour law and have the same status as legitimate worker in all relevant administrative and legal proceedings and should benefit the person performing platform work. AThis should also apply for 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 342 #
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 make the legal presumption operational andwhich classify the existence of an employment relationship shall be included in the Directive to facilitate the enforcement of workers’ rights. Those criteria should be defined by each Member State, inspired by Union and national case law or national jurisprudence and take into account national concepts of the employment relationship. The minimum criteria should include 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 instructions on how, where and when the work is to be performed or prevto which extents the person performing platform work from developing business contacts with potential clientsworker is integrated in the platform's organisation and restricts a person’s freedom to organise his or her work and controls the execution of work, and thus that it acts like an employer in an employment relationship. In order for it to be effective in practice, two criteria should be always fulfilled to trigger the application of the presumption,legitimate the existence of an employment relationship. 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 customersontracting party 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 or which are necessary to safeguard the health and safety of the recipients of the service should not be understood as controlling the performance of work.
Amendment 356 #
Proposal for a directive
Recital 26
Recital 26
(26) Effective implementation of the legal presumption through appropriate measures, such as disseminating information to the public, developing guidance and strengthening controls and field inspections is essential to ensure legal certainty and transparency for all parties involved. These measures should take into account the specific situation of start-ups to support the entrepreneurial potential and the conditions for the sustainable growth of digital labour platforms in the Union.
Amendment 364 #
Proposal for a directive
Recital 27
Recital 27
(27) In the interest of legal certainty, the legal presumption should not have any retroactive legal effects before the transposition date of this Directive and should therefore only apply to the period starting from that date, including for contractual relationships entered into before and still ongoing on that date. C claims relating to the possible existence of an employment relationship before that date and resulting rights and obligations until that date should therefore be assessed only on the basis of national law and Union law predating this Directive.
Amendment 369 #
Proposal for a directive
Recital 28
Recital 28
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 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 462 #
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 performing platform workers and the protection of natural persons performing platform work regarding the processing of their data, by ensuring correct determination of their employment status, by promoting transparency, fairness and accountability in algorithmic management in platform work and 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.
Amendment 467 #
Proposal for a directive
Article 1 – paragraph 2 – introductory part
Article 1 – paragraph 2 – introductory part
2. This Directive lays down minimum rights that apply to every person performing platform work in the Union who has, or who based on an assessment of facts may be deemed to have, an employment contract or employment relationship as defined by the law, collective agreements or practice in force in theeach Member States with consideration to the case-law of the Court of Justice. This Directive shall be without prejudice to the full respect of the autonomy of social partners, including their right to negotiate and conclude collective agreements.
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 476 #
Proposal for a directive
Article 1 – paragraph 3
Article 1 – paragraph 3
3. This Directive applies to every person performing platform work in the Union and to every digital labour platforms organising platform work performed in the Union, irrespective of their platform's place of establishment and irrespective of the law otherwise applicable.
Amendment 496 #
Proposal for a directive
Article 2 – paragraph 1 – point 2
Article 2 – paragraph 1 – point 2
(2) ‘platform work’ means any work organised through a digital labour platform and performed in the Union by an individual on the basis of a contractual relationship between the digital labour platform and the individual or another party , irrespective of whether a contractual relationship exists between theat individual or the party and the recipient of the service;
Amendment 501 #
Proposal for a directive
Article 2 – paragraph 1 – point 3
Article 2 – paragraph 1 – point 3
(3) ‘person performing platform work’ means any individual performing platform work, irrespective of the contractualnature of the contractual relationship or its designation of the relationship between that individual and the digital labour platform by the parties involved;
Amendment 506 #
Proposal for a directive
Article 2 – paragraph 1 – point 4
Article 2 – paragraph 1 – point 4
(4) ‘platform worker’ means any personindividual performing platform work who has, or who based on an assessment of facts is deemed to have an employment contract or employment relationship as defined by the law, collective agreements or practice in force in the Member States with consideration to the case-law of the Court of Justice;
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 515 #
Proposal for a directive
Article 2 – paragraph 1 – point 5
Article 2 – paragraph 1 – point 5
(5) ‘representatives’ means the workers’ organisations or representatives of persons performing platform work provided for by national law or practices, or both;
Amendment 536 #
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, or those who provide a service that is of a non-profit making nature. 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 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 549 #
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 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 560 #
Proposal for a directive
Article 3 – paragraph 2 a (new)
Article 3 – paragraph 2 a (new)
2a. Where self-employment or an intermediate employment status – as defined at national level – is the correct employment status, rights and obligations pursuant to that status shall apply, to respect different national labour laws.
Amendment 567 #
Proposal for a directive
Article 4 – title
Article 4 – title
Legal presumptionstatus
Amendment 572 #
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 platform work through that platform shall be legally presumed to be an employment relationshipwhich leads to the existence of an employment relationship shall be bound to a specific criteria. To that effect, Member States shall establish a framework of measures, in accordance with their national legal and judicial systems, which shall be based on the criteria included in paragraph 2, given that the digital labour platform restricts that person's freedom, including through sanctions, to organise his or her work and controls its execution, within the meaning of paragraph 2.
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 585 #
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 1
Article 4 – paragraph 1 – subparagraph 1
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 606 #
Proposal for a directive
Article 4 – paragraph 2 – introductory part
Article 4 – paragraph 2 – introductory part
2. ControllingRestricting the freedom to organise one's work and controlling the execution of the performance of work within the meaning of paragraph 1 shall be understood as defacto fulfilling at least two of the following:
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 617 #
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 remuneration;The amount of the platform's instruction on how, where and when the work is to be performed.
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 628 #
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 perfto which extent the worker is integrated in the platform's ormgance of the work;isation.
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 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 663 #
Proposal for a directive
Article 4 – paragraph 2 a (new)
Article 4 – paragraph 2 a (new)
2a. The criteria when the legal assumption applies should be defined by each Member State, inspired by Union and national case law or national jurisprudence and take into account national concepts of the employment relationship.
Amendment 672 #
Proposal for a directive
Article 4 – paragraph 3 – introductory part
Article 4 – paragraph 3 – introductory part
3. Member States shall take supporting measures to ensure the effective implementation of the legal presumption referred to in paragraph 1 whilis Directive taking into account the impact on start-ups, avoiding capturing the genuine self- employed and supporting the sustainable growth of digital labour platforms. In particular they shall:
Amendment 675 #
Proposal for a directive
Article 4 – paragraph 3 – point a
Article 4 – paragraph 3 – point a
(a) ensure that information con the application of the legal presumpcerning the employment status, rights and obligations is made publicly available in a clear, comprehensive and easily accessible way;
Amendment 683 #
Proposal for a directive
Article 4 – paragraph 3 – point b
Article 4 – paragraph 3 – point b
(b) develop guidance for digital labour platforms, persons performing platform work and social partners to understand and implement the legal presumption including on the procedures fon the classification system to guarantee a cor rebutting it in accordance with Article 5ct application;
Amendment 691 #
Proposal for a directive
Article 4 – paragraph 3 – point c
Article 4 – paragraph 3 – point c
(c) in line with national law or practice, develop guidance for enforcementcompetent national authorities to proactively target and pursue non-compliant digital labour platforms;
Amendment 703 #
Proposal for a directive
Article 4 – paragraph 3 – point d
Article 4 – paragraph 3 – point d
(d) strengthenin line with national law or practice, the controls and field inspections conducted by labour inspectorates or the bodies responsible for the enforcement of labour law, while ensuring that such controls and inspections are proportionate and non-discriminatory.
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 717 #
Proposal for a directive
Article 4 – paragraph 4
Article 4 – paragraph 4
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 727 #
Proposal for a directive
Article 5
Article 5
Amendment 735 #
Proposal for a directive
Article 5 – paragraph 1
Article 5 – paragraph 1
Member States shall ensure the possibility for any of the parties to rebut the legal presumptionchallenge the classification of the employment status referred to in Article 4 in legal or administrative proceedings or both.
Amendment 742 #
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 presumptionshall apply.
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 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 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 978 #
Proposal for a directive
Article 14 – paragraph 2 a (new)
Article 14 – paragraph 2 a (new)
2a. Whereas most digital work platforms are located outside the European Union, therefore challenges regarding the enforcement of the provisions, as well applicable national law in the Member State where the work is performed, will arise. Therefore, special provisions will be needed.
Amendment 1013 #
Proposal for a directive
Article 20 – paragraph 1
Article 20 – paragraph 1
1. This Directive shall not constitute valid grounds for reducing the general level of protection already afforded to workers within Member States without affecting the freedom of the social partners to negotiate and conclude collective agreements.
Amendment 1017 #
Proposal for a directive
Article 20 – paragraph 2
Article 20 – paragraph 2
2. This Directive shall not affect the Member States’ prerogative to apply or to introduce laws, regulations or administrative provisions which are more favourable to platform workers, or to encourage or permit the application of collective agreements which are more favourable to platform workers, in line with the objectives of this Directive. As regards persons performing platform work who are not in an employment relationship, this paragraph shall only apply insofar as such national rules are compatible with the rules on the functioning of the internal market.
Amendment 1021 #
Proposal for a directive
Article 20 a (new)
Article 20 a (new)
Article 20a Collective bargaining and action 1. This Directive shall not affect in any way the right to negotiate, conclude and enforce collective agreements in accordance with national law or practice. 2. In accordance with national law and practice, Member States may allow for the social partners to maintain, negotiate, conclude and enforce collective agreements which deviate from the directive, provided that the overall results sought by this Directive are ensured.