114 Amendments of Margarita DE LA PISA CARRIÓN related to 2021/0414(COD)
Amendment 165 #
Proposal for a directive
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— The European Parliament rejects the Commission proposal (COM(2021)0762);
Amendment 166 #
Draft legislative resolution
Citation 2
Citation 2
— having regard to Article 294(2) and Article 153(2), point (b), in conjunction with Article 153(1), point (b) and point (d), and Article 16(2) of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C9- C9-0454/2021),
Amendment 167 #
Draft legislative resolution
Citation 2
Citation 2
— having regard to Article 294(2) and Article 153(2), point (b), in conjunction with Article 153(1), points (b), (c) and (d), and Article 16(2) of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C9- C9-0454/2021),
Amendment 189 #
Proposal for a directive
Recital 4
Recital 4
(4) Digitalisation is changing the world of work, improving productivity and enhancing flexibility, while also carrying some risks for employment and working conditions. Algorithm-based technologies, including automated monitoring and decision-making systems, have enabled the emergence and growth of digital labour platforms and have created economic opportunity for hundreds of thousands of EU citizens and businesses while offering choice and value to consumers in the EU.
Amendment 190 #
Proposal for a directive
Recital 4
Recital 4
(4) Digitalisation is changing the world of work, improving productivity and enhancing flexibility, while also carrying some risks for employment and working conditions. Algorithm-based technologies, including automated monitoring and decision-making systems, have enabled the emergence and growth of digital labour platforms which represent new opportunities for many Member States nationals, businesses including small and medium enterprises, as well as end consumers.
Amendment 197 #
Proposal for a directive
Recital 5
Recital 5
(5) Platform work is performed by individuals through the digital infrastructure of digital labour platforms that provide a service to their customers. By means of the algorithms, the digital labour platforms maycan create efficiencies benefitting businesses, platform workers and consumers; algorithms also help exert control, to a lesser or greater extent – depending on their business model – on the performance of the work, its remuneration and the relationship between their customers and the persons performing the work. Platform work can be performed exclusively online through electronic tools (‘online platform work’) or in a hybrid way combining an online communication process with a subsequent activity in the physical world (‘on-location platform work’). Many of the existing digital labour platforms are international business actors deploying their activities and business models in several Member States or across borders.
Amendment 198 #
Proposal for a directive
Recital 5
Recital 5
(5) Platform work is performed by individuals through the digital infrastructure of digital labour platforms that provide a service to their customers. By means of the algorithms, the digital labour platforms mayare creating efficiencies that benefit the individuals, businesses and consumers and they may exert control, to a lesser or greater extent – depending on their business model – the performance of the work, its remuneration and the relationship between their customers and the persons performing the work. Platform work can be performed exclusively online through electronic tools (‘online platform work’) or in a hybrid way combining an online communication process with a subsequent activity in the physical world (‘on-location platform work’). Many of the existing digital labour platforms are international business actors deploying their activities and business models in several Member States or across borders.
Amendment 199 #
Proposal for a directive
Recital 5
Recital 5
(5) Platform work is performed by individuals through the digital infrastructure of digital labour platforms that provide a service to their customers. By means of the algorithms and artificial intelligence, the digital labour platforms may control, to a lesser or greater extent – depending on their business model – the performance of the work, its remuneration and the relationship between their customers and the persons performing the work. Platform work can be performed exclusively online through electronic tools (‘online platform work’) or in a hybrid way combining an online communication process with a subsequent activity in the physical world (‘on-location platform work’). Many of the existing digital labour platforms are international business actors deploying their activities and business models in several Member States or across borders.
Amendment 217 #
Proposal for a directive
Recital 6 a (new)
Recital 6 a (new)
(6a) Therefore, the proposed solutions should help platform workers to continue their professional activities with their preferred flexibility to organise and control their own status (e.g. as an additional source of income), workload and schedule.
Amendment 219 #
Proposal for a directive
Recital 6 b (new)
Recital 6 b (new)
Amendment 228 #
Proposal for a directive
Recital 7
Recital 7
(7) Court cases in several Member States have shown the persistencecases 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 reclassified purportedly self-employed persons as workers employed by the platforms. However, with different national definitions of employee and employment relationship, national 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 230 #
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 worka diversity of legal considerations regarding misclassification, in particular in sectorsas to wheren digital labour platforms exert a certain degree of control over the remuneration and performance of workplatform worker which entails an employment relationship. While digital labour platforms frequently classify persons working through them as self- employed or ‘independent contractors’, manyMember State 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 reclassified purportedly self- employed persons as workers employed by the platforms. However, national 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 237 #
Proposal for a directive
Recital 8
Recital 8
(8) Automated monitoring and decision-making systems powered by algorithms increasingly replace functions that managers usually perform in businesses, such as allocating tasks, giving instructions, evaluating the work performed, providing incentives or imposing sanctions. Digital labour platforms use such algorithmic systems as a standard way of organising and managing platform work through their infrastructure. Persons performing platform work subject to such algorithmic management often lack information on how the algorithms work, which personal data are being used and how their behaviour affects decisions taken by automated systems. Workers’ representatives and labour inspectorates do not have access to this information either. Moreover, persons performing platform work often do not know the reasons for decisions taken or supported by automated systems and lack the possibility to discuss those decisions with a contact person or to contest them. It is therefore legitimate to take measures to prevent discrimination against employees in the context of algorithmic management. About two- thirds of people working through platforms in terms of earnings have access to some measures to prevent discrimination and promote equity1d. __________________ 1d Digital Labour Platforms in the EU. Mapping and Business Models, p.12
Amendment 243 #
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 is performed and by whom as Member States do not collect data in this respect. 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 rules, including in respect of labour law and social protection and therefore it is not possible to determine precisely or even approximately how many workers are affected, let alone to what extent.
Amendment 247 #
Proposal for a directive
Recital 9 a (new)
Recital 9 a (new)
(9a) The popularity of some platforms, in particular transport and food delivery, increased significantly during the pandemic, mainly because they provided access to certain services during a period of isolation. According to research, more than 60% of EU residents say that, even after the COVID-19 crisis, they do not intend to stop using online services, including, for instance, the possibility of ordering meals online1e. __________________ 1e https://www.dw.com/pl/ue-chce-lepiej- chroni%C4%87-pracuj%C4%85cych-za- po%C5%9Brednictwem-platform- cyfrowych/a-56676431
Amendment 248 #
Proposal for a directive
Recital 9 b (new)
Recital 9 b (new)
Amendment 249 #
Proposal for a directive
Recital 9 c (new)
Recital 9 c (new)
(9c) Platforms with their origin outside the EU play an important role in the EU. Platform economy (23% of active platforms and 49% in terms of earnings). Most of these platforms intermediating on-location services nevertheless have an office in the EU, whereas the platforms intermediating online services tend not to have an office in the EU. In total, less than a tenth of the work done through platforms is provided through platforms without an office in the EU1g. __________________ 1g Digital Labour Platforms in the EU. Mapping and Business Models, p.8 https://op.europa.eu/en/publication- detail/-/publication/b92da134-cd82-11eb- ac72-01aa75ed71a1/language-en
Amendment 250 #
Proposal for a directive
Recital 9 d (new)
Recital 9 d (new)
Amendment 257 #
Proposal for a directive
Recital 10 a (new)
Recital 10 a (new)
(10a) The determination of employment relationships or employment contracts is governed by the laws of the individual Member States of the Union. Exceptionally, the Union has competence only in respect of the free movement of workers or, in part, the equal treatment of workers, which requires a uniform application of the concept of worker. The legal form of the employment relationship or employment contract varies from country to country and is a matter of national competence. The characteristics of employment which enable it to be recognised as an employment relationship vary greatly from one Member State to another, as is clearly shown by the extensive research carried out by the labour law representatives from those Member States1i. Therefore, persons working via online platforms could be considered as workers only in the individual Member States and not throughout the Union. __________________ 1i Regulating the employment relationship in Europe: A guide to Recommendation No. 198, European Labour Law Network 2013
Amendment 259 #
Proposal for a directive
Recital 11
Recital 11
(11) Council Recommendation 2019/C 387/0158 on access to social protection for workers and the self-employed recommends Member States to take measures ensuring formal and effective coverage, adequacy and transparency of social protection schemes for all workers and self-employed. Member States currently have varying degrees of providing social protection to the self- employed and the issue of social security remains an exclusive competence of the Member States. __________________ 58 Council Recommendation of 8 November 2019 on access to social protection for workers and the self- employed (2019/C 387/01) (OJ C 387, 15.11.2019, p. 1).
Amendment 260 #
Proposal for a directive
Recital 11 a (new)
Recital 11 a (new)
Amendment 267 #
Proposal for a directive
Recital 13
Recital 13
(13) While existing or proposed Union legal acts provide for certain general safeguards, challenges in platform work require some further specific measures. In order to adequately frame the development of platform work in a sustainable manner, it is necessary for the Union to set new minimum standards in working conditions to address the challenges arising from platform work. Persons performing platform work in the Union should be provided with a number of minimum rights aiming at ensuring correct determination of their employment status, at promotinglatform workers should be provided with good social protection, including with regard to transparency, fairness and accountability in algorithmic management, and at improving transparency in platform work, includings well as assuring legal compliance in cross-border situations. This should be done with a view to improving legal certainty, creating a level playing field between digital labour platforms and offline providers of services and supporting the sustainable growth of digital labour platforms in the Union.
Amendment 277 #
Proposal for a directive
Recital 16
Recital 16
(16) This Directive should apply to persons performing platform work in the Union who have, 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 the Member States, with consideration to the case-law of the national courts as well as the Court of Justice of the European Union. This should include situations where the employment status of the person performing platform work is not clear, so as to allow correct determination of that status. The provisions on algorithmic management which are related to the processing of personal data should also apply to genuine self-employed and other persons performing platform work in the Union who do not have an employment relationship.
Amendment 283 #
Proposal for a directive
Recital 17 a (new)
Recital 17 a (new)
(17a) In order not to create a discrimination between self-employed in digital labour platforms and other self- employed, an upgrade in social protection should be provided to all of the self- employed.
Amendment 285 #
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 accommodationor online platforms within the meaning of the Digital Services Act and their directly associated services whose primary purpose is to offer or facilitate offers for sales of goods or services excluding food products for their immediate consumption, or those who provide services that are of 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 299 #
Proposal for a directive
Recital 18 a (new)
Recital 18 a (new)
(18a) The free choice of a person performing platform work to be self- employed in agreement with the platform should always be respected.
Amendment 304 #
Proposal for a directive
Recital 19
Recital 19
(19) To combat false self-employment in platform work and to facilitate the correct determination of the employment status, Member States should have appropriate procedures in place to prevent and address misclassification of the employment status of persons performing platform work. The aim of those procedures should be to ascertain the existence of an employment relationship as defined by national law, collective agreements or practice with consideration to the case-law of the Court of Justicenational courts and the Court of Justice of the European Union, and, where such employment relationship exists, to ensure full compliance with Union law applicable to workers as well as national labour law, collective agreements and social protection rules. 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 should apply.
Amendment 331 #
Proposal for a directive
Recital 24
Recital 24
(24) When digital labour platforms control certain elements of the performance 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 shcould be deemed, by virtue of a legal presumption, to be to be one of the elements of 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 apply in all relevant administrative and legal proceedings and should benefit the person performing platform workit should be considered whether that person is entitled to the status of worker if he or she also fulfils the other criteria and should be regarded as worker in accordance with that status, as laid down in national and Union law, collective agreements and practice. It should also be stressed that in the Member States the employment relationship is established on the basis of the actual provision of work, which is verified by the competent control authorities. Authorities in charge of verifying the compliance with or enforcing relevant legislation, such as labour inspectorates, social protection bodieinstitutions 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 certaintybe the ones responsible for verifying the actual status of a person performing platform work. In addition, it is important to bear in mind the principle of freedom of contract in force in some Member States.
Amendment 333 #
Proposal for a directive
Recital 24
Recital 24
(24) When digital labour platforms control certunilaterally decide over the main elements of the performance of work, they act like employers in an employment relationship. Direction and control, oron behalf of the digital labour platform and the corresponding legal subordination, of the employee 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 a contractual relationships in which a digital labour platforms exerts a certain level of controlunilaterally decisive power over certthe main 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 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 336 #
Proposal for a directive
Recital 25
Recital 25
Amendment 341 #
Proposal for a directive
Recital 25
Recital 25
(25) Criteria indicating that a digital labour platform controlsexerts decisive power over the performance of work should be included in the Directive in order to make the legal presumption operational and facilitate the enforcement of workers’ rights. Those criteria should be inspired by Union and national case law and take into account national concepts of the employment relationship. The 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 the work is to be performed or prevents the person performingunilaterally determines the schedule and/or the total remuneration of the platform worker, or prevents the platform worker from developing business contacts with potential clients. In order for it to be effective in practice, two criteriaa number of criteria which reflect such power of decision 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 workexerting decisive power. 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, regulations or collective bargaining agreements, 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 354 #
Proposal for a directive
Recital 26
Recital 26
(26) Effective implementation of the legal presumptioncorrect determination of the employment status 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 360 #
Proposal for a directive
Recital 26 a (new)
Recital 26 a (new)
(26a) Collective bargaining between representatives of persons performing platform work and representatives of digital labour platforms is hereby encouraged. Where such collective bargaining agreements exist, they will take precedence over this Directive.
Amendment 362 #
Proposal for a directive
Recital 27
Recital 27
Amendment 365 #
Proposal for a directive
Recital 27 a (new)
Recital 27 a (new)
(27a) In the interest of fairness, the legal presumption should not have as a consequence that some digital labour platforms incorporate a third-party undertaking between the platform and the service providing persons. This undesired effect, contrary to the objective of the legal measure, has already taken place in Member States (e.g. Spain) having used the model of the rebuttable legal presumption of employment status and should therefore not be considered as a good practice to imitate.
Amendment 366 #
Proposal for a directive
Recital 27 a (new)
Recital 27 a (new)
(27a) Introduction of a legal presumption could introduce a privilege of a group of persons providing work for digital platforms in relation to other persons providing work, e.g. on the basis of civil law contracts.
Amendment 367 #
Proposal for a directive
Recital 27 b (new)
Recital 27 b (new)
(27b) An inappropriate choice of criteria for applying the legal presumption could result in a significant number of cases in which the presumption is applied and, consequently, an excessive burden on the judiciary in connection with cases for the rebuttal of the presumption. Moreover, this could interfere with national definitions of an employment relationship, which would mean that the effectiveness of such a presumption could be illusory.
Amendment 368 #
Proposal for a directive
Recital 28
Recital 28
Amendment 376 #
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 aspectnational courts and the Court of Justice of the European Union, even if such relationship is deemed to be an employment relationship according to this Directive. Member States should ensure the possibility to rebut thesuch 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. A successful rebuttal of the presumption in administrative proceedings should not preclude the application of the presumption in subsequent judicial proceedings or not according to the national authority's decision, based on the facts and merits of the case. 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 377 #
Proposal for a directive
Recital 28 a (new)
Recital 28 a (new)
(28a) Member States should ensure the possibility to rebut determination of employment status in legal or administrative proceedings or both. Member States should provide the necessary guidance for procedures to rebut the determination of employment status.
Amendment 382 #
Proposal for a directive
Recital 31
Recital 31
(31) This Directive is without prejudice to Articles 13, 14, 15 and 22 of Regulation (EU) 2016/679, except for Articles 13(2)(f), 14(2)(g) and 15(1)(h) thereof, in relation to which Article 6 of this Directive provides for more specific rules in the context of platform work, including to ensure the protection of the rights and freedoms in respect of the processing of employees' personal data within the meaning of Article 88 of Regulation (EU) 2016/679.
Amendment 388 #
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 significantly affect 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 additionWithout prejudice 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 beMember States should specifiedy 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 412 #
Proposal for a directive
Recital 38
Recital 38
(38) Online platform work poses a range of both pre-existing and new OSH risks, both physical and psycho-social. Moreover, people working through platforms are exposed to particular health and safety risks, as it is often unclear how existing regulations apply (or not) to them, and the protective factors of a physical workspace do not exist. They usually receive little or no training, and have low prospects of career advancement1k. Council Directive 89/391/EEC63 introduces measures to encourage improvements in the safety and health of workers at work, including the obligation for employers to assess the occupational health and safety risks. As automated monitoring and decision-making systems potentially have significant impact on the physical and mental health of persons performing platform work, digital labour platforms should evaluate those risks, assess whether the safeguards of the systems are appropriate to address those risks and take appropriate preventive and protective measures. __________________ 1k Protecting Workers in EU Platform Economy, EU OSHA 2017, p. 28 63 Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (OJ L 183, 29.6.1989, p. 1).
Amendment 420 #
Proposal for a directive
Recital 40
Recital 40
(40) Persons who do not have an employment relationship constitute a significant part of the persons performing platform work. The impact of automated monitoring and decision-making systems used by digital labour platforms on their working conditions and their earning opportunities is similar to that on platform workers with an employment relationship. Therefore, the rights in Articles 6, 7 and 8 of this Directive pertaining to the protection of natural persons in relation to the processing of personal data in the context of algorithmic management, namely those regarding transparency on automated monitoring and decision-making systems, restrictions to process or collect personal data, human monitoring and review of significant decisions, should also apply to persons in the Union performing platform work who do not have an employment contract or employment relationship. The rights pertaining to health and safety at work and informaFurther social protection, and consultation of platform workers or their represens decided by Member Statives, which are specific to workers in view of Union law, should not applyshould be extended to them. Regulation (EU) 2019/1150 provides safeguards regarding fairness and transparency for self- employed persons performing platform work, provided that they are considered business users within the meaning of that Regulation. Where such safeguards conflict with elements of specific rights and obligations laid down in this Directive, the specific provisions of Regulation (EU) 2019/1150 should prevail in respect of business users.
Amendment 431 #
Proposal for a directive
Recital 43
Recital 43
(43) An extensive system of enforcement provisions for the social acquis in the Union has been developed, elements of which should be applied to this Directive in order to ensure that persons performing platform work have access to effective and impartial dispute resolution and a right to redress, including adequate compensation. Where an employment contract is terminated, the Union should support and complement the activities of the Member States in the field of protection of workers. Specifically, having regard to the fundamental nature of the right to effective legal protection, persons performing platform work should continue to enjoy such protection even after the end of the employment or other contractual relationship giving rise to an alleged breach of rights under this Directive.
Amendment 436 #
Proposal for a directive
Recital 44 a (new)
Recital 44 a (new)
(44a) The creation of Union measures regarding platform work should not increase litigation and legal uncertainty, but rather support European business opportunities and social protection of persons performing platform work.
Amendment 440 #
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 or, where they already exist, support 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 communications.
Amendment 444 #
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 certain 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 authoritie. National courts 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 460 #
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 work 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 situationsself- employed persons, including those performing digital platform work, while supporting the conditions for the sustainable growth of digital labour platforms in the Union.
Amendment 468 #
Proposal for a directive
Article 1 – paragraph 2 – introductory part
Article 1 – paragraph 2 – introductory part
2. This Directive also lays down minimum rights that apply to every person performing platform work in the Union who has, an employment contract 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 the Member States with consideration to the case-law of the Court of Justicenational courts and the Court of Justice of the European Union.
Amendment 479 #
Proposal for a directive
Article 1 – paragraph 3
Article 1 – paragraph 3
3. This Directive applies to digital labour platforms organising platform work performself- employed workers established in the Union, irrespective of their place of establishment and irrespective of the law otherwise applicableof any labour platforms organising their work.
Amendment 492 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 – point c
Article 2 – paragraph 1 – point 1 – point c
(c) it involves, as a necessary and essential component, the organisa certain organisation or coordination of work performed by individuals, irrespective of whether that work is performed online or in a certain location and irrespective of whether those individuals are employees or self- employed, depending on the degree of decisive power to which they are bound;
Amendment 500 #
Proposal for a directive
Article 2 – paragraph 1 – point 2
Article 2 – paragraph 1 – point 2
(2) ‘platform work’ means any work organisprovided 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, irrespective of whether a contractualn employee or a self-employed relationship exists between the individual and the recipient of the serviceplatform;
Amendment 505 #
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 contractual designationnature of the relationship between that individual and the digital labour platform by the parties involv, whether employee or self-employed;
Amendment 507 #
Proposal for a directive
Article 2 – paragraph 1 – point 4
Article 2 – paragraph 1 – point 4
(4) ‘platform worker’ means any person performing platform work who has 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 Justicenational courts and the Court of Justice of the European Union;
Amendment 509 #
Proposal for a directive
Article 2 – paragraph 1 – point 4
Article 2 – paragraph 1 – point 4
(4) ‘platform workeremployee’ means any person performing platform work who has 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 516 #
Proposal for a directive
Article 2 – paragraph 1 – point 5
Article 2 – paragraph 1 – point 5
(5) ‘representatives’ means the workers’ organisations or representatives provided for by national law or practices, or bothof persons performing platform work, according to applicable national law;
Amendment 530 #
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 online platforms within the meaning of the Digital Services Act and their directly associated services whose primary purpose is to offer or facilitate offers for sales of goods or services excluding food products for their immediate consumption, or those who provide services that are of 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 532 #
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. It shall be limited to providers of a service for which the organisation or coordination of work performed by the individual constitutes not merely a minor and purely ancillary component, though irrespective of the degree of decisive power exercised over the person performing platform work and consequently on the nature of the relationship between such person and the platform, whether that of employee or self-employed.
Amendment 545 #
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 national courts and the Court of Justice, and ensuring that they enjoy the rights deriving from Union law applicable to workers.
Amendment 551 #
Proposal for a directive
Article 3 – paragraph 2
Article 3 – paragraph 2
2. The determination of the existence of an employment relationship of persons performing platform work 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, 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 553 #
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, 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 556 #
Proposal for a directive
Article 3 – paragraph 2 a (new)
Article 3 – paragraph 2 a (new)
2a. Member States shall take supporting measures to ensure the correct determination of the employment status referred to in paragraph 1 while 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: (a) ensure that information on the correct determination of the employment status is made publicly available in a clear, comprehensive and easily accessible way; (b) develop guidance for digital labour platforms, persons performing platform work and social partners to understand and implement the correct determination of the employment status including on the procedures for rebutting it; (c) develop guidance for enforcement authorities to proactively target and pursue non-compliant digital labour platforms; (d) strengthen 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 561 #
Proposal for a directive
Article 3 – paragraph 2 a (new)
Article 3 – paragraph 2 a (new)
2a. If a person performing platform work wishes to be or remain self- employed and so agrees with the digital labour platform, such self-employment relationship shall be legally recognised as such.
Amendment 564 #
Proposal for a directive
Article 3 – paragraph 2 b (new)
Article 3 – paragraph 2 b (new)
2b. Member States shall ensure the possibility for any of the parties to rebut the employment status referred to in paragraph 1 in legal or administrative proceedings or both.
Amendment 566 #
Proposal for a directive
Article 4
Article 4
Amendment 571 #
Proposal for a directive
Article 4 – paragraph 1
Article 4 – paragraph 1
Amendment 583 #
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 self-employmented relationship. To that effect, Member States shall establish a framework of measures in order to complement the social protection of all self-employed, in accordance with their national legal and judicial systems.
Amendment 595 #
Proposal for a directive
Article 4 – paragraph 1 a (new)
Article 4 – paragraph 1 a (new)
1a. The legal presumption established under paragraph 1 will not apply if a majority of the following criteria are met:
Amendment 599 #
Proposal for a directive
Article 4 – paragraph 2
Article 4 – paragraph 2
Amendment 609 #
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:based on an overall assessment of independence.
Amendment 615 #
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 remunerationthe daily, weekly, fortnightly or monthly remuneration of the platform worker;
Amendment 631 #
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 workthe performance of the work that entail exercising decisive power over such person;
Amendment 633 #
Proposal for a directive
Article 4 – paragraph 2 – point c
Article 4 – paragraph 2 – point c
Amendment 664 #
Proposal for a directive
Article 4 – paragraph 3
Article 4 – paragraph 3
Amendment 673 #
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 1increase the social protection of the self-employed, while taking into account the impact on start-ups, avoiding capturing the genuine employees as self-employed and supporting the sustainable growth of digital labour platforms. In particular they shall:
Amendment 676 #
Proposal for a directive
Article 4 – paragraph 3 – point a
Article 4 – paragraph 3 – point a
(a) ensure that information on the application of the legal presumption is made publicly available in a clear, comprehensive and easily accessible wayfoster the upgrade of medicare, insurance, paid leave and pension rights on behalf of the self-employed;
Amendment 685 #
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, self-employed and social partners to understand and implement the legal presumption including on the procedures for rebutting it in accordance with Article 5in order to contribute to the increase of social protection in favour of the self- employed;
Amendment 692 #
Proposal for a directive
Article 4 – paragraph 3 – point c
Article 4 – paragraph 3 – point c
(c) develop guidance for enforcement authorities to proactively target and pursue non-compliant digital labour platforms according to national administrative and/or court procedures in force;
Amendment 704 #
Proposal for a directive
Article 4 – paragraph 3 – point d
Article 4 – paragraph 3 – point d
(d) strengthenassure 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 729 #
Proposal for a directive
Article 5
Article 5
Amendment 732 #
Proposal for a directive
Article 5 – paragraph 1
Article 5 – paragraph 1
Amendment 738 #
Proposal for a directive
Article 5 – paragraph 2
Article 5 – paragraph 2
Amendment 748 #
Proposal for a directive
Article 5 – paragraph 2
Article 5 – paragraph 2
Where the digital labour platformplatform worker or their representative argues that the contractual relationship in question is not an self- employmented 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 national courts and 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 750 #
Proposal for a directive
Article 5 – paragraph 3
Article 5 – paragraph 3
Amendment 758 #
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 national courts and the Court of Justice, the digital labour platform and the person performing the platform work shall be required to assist the proper resolution of the proceedings, notably by providing all relevant information held by iteach of them.
Amendment 780 #
Proposal for a directive
Article 6 – paragraph 1 – introductory part
Article 6 – paragraph 1 – introductory part
1. Without prejudice to the obligations and rights of digital labour platforms and platform workers under Directive (EU) 2019/1152, Member States shall require digital labour platforms to inform persons performing platform workers of:
Amendment 782 #
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 persons performing platform workers through electronic means;
Amendment 787 #
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 decisionevaluate alternatives that significantly affect those platform workers’ working conditionse organisation of platform work, in particular their access to work assignments, their earnings, their occupational safety and health, their working time, their promotion and their contractual status of persons performing platform work, including the restriction, suspension or termination of their account.
Amendment 796 #
Proposal for a directive
Article 6 – paragraph 2 – point b – point iii
Article 6 – paragraph 2 – point b – point iii
(iii) the main parameters that such systems take into account and the relative importance of those main parameters in the automated decision-making, including the way in which the platform worker’s personal data or behaviour of the person performing platform work’s influence the decisions;
Amendment 814 #
Proposal for a directive
Article 6 – paragraph 5 – introductory part
Article 6 – paragraph 5 – introductory part
5. DWithout prejudice to the GDPR 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 the digital labour platform. In particular they shall not:
Amendment 815 #
Proposal for a directive
Article 6 – paragraph 5 – introductory part
Article 6 – paragraph 5 – introductory part
5. DWithout prejudice to the GDPR, digital labour platforms shall not process any personal data concerning persons performing platform workers that are not intrinsically connected to and strictly necessary for the performance of the contract between the platform workersuch persons and the digital labour platform. In particular they shall not:
Amendment 818 #
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 825 #
Proposal for a directive
Article 6 – paragraph 5 – point d
Article 6 – paragraph 5 – point d
(d) collect any personal data while the platform worker is not offering or performinglogged in to the platform work.
Amendment 841 #
Proposal for a directive
Article 6 a (new)
Article 6 a (new)
Article 6a Unless otherwise provided in this Directive or under 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 857 #
Proposal for a directive
Article 7 – paragraph 2 – subparagraph 1
Article 7 – paragraph 2 – subparagraph 1
Amendment 860 #
Proposal for a directive
Article 7 – paragraph 2 – subparagraph 1
Article 7 – paragraph 2 – subparagraph 1
They shall not use automated monitoring and decision-making systems in any manner that puts undue pressure on platform workers or otherwise puts at risk the physical and mental health of platform workers.
Amendment 867 #
Proposal for a directive
Article 7 – paragraph 3
Article 7 – paragraph 3
3. Member States shall require digital labour platforms to ensure sufficient human resources for monitoring the impact of individual decisions taken or supported by automated monitoring and decision- making systems in accordance with this Article. The persons charged by the digital labour platform with the function of monitoring shall have the necessary competence, training and authority to exercise that function. They shall enjoy protection from dismissal, disciplinary measures or other adverse treatmenta sufficient level of independence for overriding automated decisions or giving suggestions for decisions.
Amendment 872 #
Proposal for a directive
Article 8 – paragraph 1 – introductory part
Article 8 – paragraph 1 – introductory part
1. Member States shall ensure that platform workers shall have the right to obtain an explanation from the digital labour platform foror and a review of 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 particular, 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 functionto the extent that this is provided for in Union or Member State law.
Amendment 876 #
Proposal for a directive
Article 8 – paragraph 1 – introductory part
Article 8 – paragraph 1 – introductory part
1. Member States shall ensure that persons performing 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 such person, as referred to in Article 6(1), point (b). In particular, Member States shall ensure that digital labour platforms provide persons performing 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 877 #
Proposal for a directive
Article 8 – paragraph 1 – subparagraph 1
Article 8 – paragraph 1 – subparagraph 1
Amendment 880 #
Proposal for a directive
Article 8 – paragraph 1 – subparagraph 1
Article 8 – paragraph 1 – subparagraph 1
Digital labour platforms shall provide the person performing platform worker with a written statement of the reasons for any decision taken or supported by an automated decision- making system to restrict, suspend or terminate the platform workererson’s account, any decision to refuse the remuneration for work performed by the platform workersuch person, any decision on the platform worker’sir contractual status or any decision with similar effects.
Amendment 885 #
Proposal for a directive
Article 8 – paragraph 2 – introductory part
Article 8 – paragraph 2 – introductory part
2. Where persons performing 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 persons performing platform worker with a substantiated reply without undue delay and in any event within one week of receipt of the request.
Amendment 889 #
Proposal for a directive
Article 8 – paragraph 2 – subparagraph 1
Article 8 – paragraph 2 – subparagraph 1
With regard to digital labour platforms which are micro, small or medium-sized enterprises, Member States may provide that the deadline for reply referred to in the first subparagraph is extended to two weeksa reasonable period taking into account the size of the enterprise.
Amendment 893 #
Proposal for a directive
Article 8 – paragraph 3
Article 8 – paragraph 3
3. Where the decision referred to in paragraph 1 infringes the rights of the person performing platform worker’s rights, the digital labour platform shall rectify that decision without delay or, where such rectification is not possible, offer adequate compensation.
Amendment 903 #
Proposal for a directive
Article 9 – paragraph 1
Article 9 – paragraph 1
1. Without prejudice to the rights and obligations under Directive 2002/14/EC, Member States shall ensure information and consultation of platform workers’ representatives or, where there are no such representatives, of the platform workers concerned by digital labour platforms, onMember States shall ensure that Directive 2002/14/EC is applied to decisions likely to lead to the introduction of or substantial changes in the use of automated monitoring and decision-making systems referred to in Article 6(1), in accordance with this Article.
Amendment 905 #
Proposal for a directive
Article 9 – paragraph 1
Article 9 – paragraph 1
1. Without prejudice to the rights and obligations under Directive 2002/14/EC and Regulation 2019/1150, Member States shall ensure information and consultation of persons performing platform workers’s representatives or, where there are no such representatives, of the persons performing platform workers concerned by digital labour platforms, on decisions likely to lead to the introduction of or substantial changes in the use of automated monitoring and decision-making systems referred to in Article 6(1), in accordance with this Article.
Amendment 915 #
Proposal for a directive
Article 9 – paragraph 3
Article 9 – paragraph 3
3. The platform workers’ representatives or the platform workers concernedrepresentatives of persons performing platform work or such persons may be assisted by an expert of their choice, in so far as this is necessary for them to examine the matter that is the subject of information and consultation and formulate an opinion. Where a digital labour platform has more than 500 platform workers in a Member State, the expenses for the expert shall be borne by the digital labour platform, provided that they are proportionate and that the choice of expert was done in conformity with the platform; if the representative is a trade union, the expenses shall be borne by such trade union.
Amendment 926 #
Proposal for a directive
Article 11 – paragraph 1
Article 11 – paragraph 1
Amendment 964 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
Amendment 965 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
Amendment 993 #
Proposal for a directive
Article 16 – paragraph 2
Article 16 – paragraph 2
2. Member States shall ensure that national courts have the power to order the disclosure of evidence containing confidential information in accordance with Directive (EU) 2016/943, where they consider it relevant to the claim. They shall ensure that, when ordering the disclosure of such information, national courts have at their disposal effective measures to protect such information.
Amendment 1018 #
Proposal for a directive
Article 20 – paragraph 2
Article 20 – paragraph 2
2. This Directive exhaustively regulates the distinction between service providers and employees working for platform operators, without prejudice to the case law of national courts and the Court of Justice of the European Union. 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. regard of other aspects of platform work.
Amendment 1023 #
Proposal for a directive
Article 21 – paragraph 4
Article 21 – paragraph 4
4. Member States may entrust the social partners with the implementation of this Directive including via collective bargaining negotiations, where the social partners jointly request to do so and provided that Member States take all necessary steps to ensure that they can at all times guarantee the results sought under this Directive.