European Commission consultation concerning the proposal for a Directive on improving working conditions in platform work

On 9 December 2021 the European Commission published a proposal for a Directive on improving working conditions in platform work. Bitkom generally endorses a coherent European approach, which helps to avoid fragmentation of the single market by diverging national legislation, administrative or judicial decisions. However, it is very concerned about a core element of the proposed Directive, notably the introduction of a rebuttable presumption of employment, which would apply to a large number of self-employed persons performing platform work in Europe. Our association fears that this provision would have unintended negative consequences for persons performing platform work and platforms alike, and drastically increase legal uncertainty. A rebuttable presumption of employment is not in line with the needs and wishes of persons working through platforms and would not fix the issues related to the misclassification in employment status. Parties would still need to litigate before a court, which implies lengthy procedures and substantial costs. Bureaucracy and legal costs would not only burden undertakings but also Member States. To this end:

• In Bitkom’s view Article 4 of the Directive must ensure that self-employed persons performing platform work, the vast majority of whom wish to remain self-employed, cannot automatically face reclassification without them opting-in to a challenge of their status.
• The criteria to trigger the presumption should clearly focus on potential bogus self-employment (being backed by European case law) and be limited to one distinct factor in each criterion listed in Article 4 (2).  In addition, we suggest foreseeing the fulfilment of at least half of the criteria for the legal presumption of an employment relationship to apply.
• Furthermore, any potential presumption should be suspended during the process of rebutting it.