Kiri

Confidential

MEMORANDUM

To Delivery Platforms Europe

From Gide [email protected] [email protected]

Ref. Legal assessment of the European Parliament’s amendments to the Platform Work Directive Proposal : "Grasp all, Lose all"

Date 09 January 2023

(1) On 12th December 12th 2022, just four days after the Council of Employment Ministers failed to reach a qualified majority on a compromise proposal put forward by the Czech Presidency, the Employment and Social Affairs Committee of the European Parliament (the "Parliament") reached an agreement on amendments1

to the platform workers’ directive2 proposed by the European Commission ("the Commission").

(2) The Czech Presidency worked hard over 6 months to find a middle ground between Member States that want to avoid a catch all approach that would impact the genuinely self employed and those who do not find it ambitious enough. While the Czech Presidency almost succeeded in reaching such a compromise, the Parliament’s amendments take the file in a completely different direction, much more drastic and radical than the initial Commission proposal. Hence the likelihood of convergence between the EU institutions’ on this legislative proposal becomes remote in the short term.

(3) The new direction of travel proposed by the Parliament ignores all basic principles of EU and national case law regarding the definition of independent workers vs employees. Thus, it creates an unprecedented legal uncertainty which risks embracing all 30 million of workers in a radical change forcing long litigations.

(4) Since this has never been the Commission's intention, this raises the question of possible withdrawal of the proposal as allowed by Article TFUE when the Legislator risks denaturing its proposal.3

(5) The present note focuses on the main points raised by the Parliament among around 200 amendments.

3 CJUE, 14 April 2015, Council vs Commission, C-409/13, par. 83

2 Proposal for a Directive of the European parliament and of the Council on improving working conditions in platform work, COM(2021) 762 final, 2021/0414 (COD), Brussels, 9.12.2021.

1 Draft European parliament legislative resolution on the proposal for a directive improving working conditions in platform work (COM(2021)076), plenary setting, first reading, 21.12.2022.

GIDE LOYRETTE NOUEL A.A.R.P.I. View Building, Rue de l’Industrie, 26-38 - 1040 Bruxelles | tél. +32 (0)2 231 11 40 - fax +32 (0)2 231 11 77 | gide.com

Confidential

1. AUTOMATIC PRESUMPTION OF EMPLOYMENT

(6) Contrary to the Commission proposal which sets a procedure and criteria to “ascertain” a rebuttable presumption as to whether a platform worker is an employee or self-employed, the Parliament sets as a principle that the presumption that a platform worker is an employee of the platform should be “applied”. After platform workers or local authorities initiation of a case, instead of a procedure and criteria - based on established case law including the hierarchical relationship as mere criteria4 - that decide whether a platform worker is an employee as proposed by the Commission, the Parliament removes all criteria, extending the presumption automatically to all platform workers (Art. 4 § 1, sub § 1), including those which are and would finally be considered as genuine independent.

(7) This alters the intention, the scope and the effect of the proposal, in a way that could be qualified as a denaturation of the proposed Directive in the meaning of the case law.5

(8) The Parliament corrects this systematic approach and thus introduces some contradictions in the text by stating that "where competent authorities (…) consider that a platform worker might be wrongly classified they shall apply the presumption" (Art 4, §1, sub§ 1a). By doing so, the Parliament either breaches the "harmonisation6" resulting from its approach : what could be the added value for the Internal market to define ex ante in a Directive all platform workers as employees, if it is at the discretion of national authorities to apply the principle and designate them as such ? Or the Parliament is in fact locking national authorities in a false and burdensome escape game : Nothing in the text explains how this could be done and on which criteria.

(9) This creates legal uncertainty not only for both platform workers and for the platforms, but also for national authorities. This raises the risk of arbitrariness and increases the national alea compared to the current situation. To limit damages, the Parliament offers the possibility for the presumption to be rebutted by the platform or the worker. However, by reversing the criteria as set by CJEU established case law and reinforcing them, the text makes such rebuttal almost impossible. Two cumulative conditions are set by Parliament (Art. 5 § 3a):

● The contractual relationship in question is not an employment relationship as defined by the Member State in question and the person performing platform work is free from control and direction of the digital labour platform.

● The platform worker is "usually engaged in an independently established trade, profession or business of the same nature as that with which the work performed is related".

(10) The 2nd condition is unclear and not explained in any corresponding recital. De facto the implication is that a platform worker can only be regarded as self-employed if he or she pursues the same activity outside the platform as a free agent unaffiliated to any organisation. In other words, a ride-hailing service driver, which is a traditionally established trade, might also require to have a taxi licence

6 See objectives of “minimum harmonization” set by Parliament in its amendment to recital 49.

5 CJEU, 14 April 2015, case C-409/13, Council / Commission, par. 83: "It must be accepted that, where an amendment planned by the Parliament and the Council distorts the proposal for a legislative act in a manner which prevents achievement of the objectives pursued by the proposal and which, therefore, deprives it of its raison d’être, the Commission is entitled to withdraw it".

4 CJEU, 22 April 2020, case C-692/19, Yodel, par. 28 : "the issue whether such a relationship exists must, in each particular case, be assessed on the basis of all the factors and circumstances characterising the relationship between the parties".

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and to work as a taxi driver to be regarded as self-employed, depending on how the second criterion of the rebuttal would be implemented nationally.. Thus the Parliament puts at risk the status of "complementary independent" that allows workers, even employees or pensioners, in a lot of Member States to supplement their income at a fiscal and social lower cost justified since they have another "main activity"7. For obvious reasons, the loss of this complementary independent status will mostly affect low incomes or young entrepreneurs using such ancillary independent activities to live during their start-up phase. Additionally, this requirement ignores the democratisation of access to certain professions that technology facilitated. Platforms have made it easy for many to engage in supplementary activities, also in sectors where existing self-employment has been marginal (e.g. delivery). It would therefore create a lock-in effect where only high paying freelance sectors (i.e. coding) could enjoy the benefits of technology.

(11) As to the 1st condition, Article 5 § 3 b proposed by Parliament contains some indications on the elements that should be “taken into consideration” to determine whether there is “control and direction” by the platform. These are 8 criteria which reflect to some extent the 5 criteria proposed by the Commission to ascertain whether platform work should be presumed to be an employment relationship. However, these criteria are widely expanded, made much stricter, and since they are used the other way round (not to ascertain the qualification, but to rebut the presumption), hence significantly raising the bar for a rebuttal, if not making it almost impossible. Most importantly, these elements are not exclusive to self-employment/employment making them poor criteria to consider the nature of an employment relationship.

(12) They cover the level of remuneration, control over how the work is performed, preventing contacts with clients, digitally tracking the work performance, appearance and conduct, preventing work for a third party, restricting the use of subcontractors, restricting freedom of choice for social protection. The 8 criteria in question are just a set of indicators which can be “taken into consideration” by authorities, none of them giving decisive guidance. This creates considerable legal uncertainty for platforms and platform workers which can in fact not know in advance which elements will be decisive for a rebuttal to be accepted and cannot adapt their business models to ensure compliance with legal requirements. . This legal uncertainty will affect workers, both regarding job opportunities and comfort regarding the nature of the contract signed. This also creates a considerable risk of arbitrariness in decisions by authorities on such rebuttals.

(13) The Parliament limits the use of subcontractors. Attempting to address concerns that some platforms are avoiding the application of national legislation and jurisdiction by recruiting platform workers through subcontractors, it introduces amendments on intermediaries and subcontracting. Art. 12 b) stating that the platform is directly liable for any infringement to workers’ right of a subcontractor of its platform workers. In addition, Art. 3 par. 2b) foresees that the proposed Directive should apply in full to "platforms exerting the functions of temporary work agencies".

(14) Although these amendments go in the same direction as similar amendments introduced in the compromise proposal of the Czech Presidency, they may reduce the flexibility of operations for digital platforms. Neither the Council, nor the Parliament have assessed the impact on such amendments on Interim and Temp workers even outside the usual drivers and couriers ; indeed it remains unclear as

7Typically the Belgian status of "indépendant complémentaire" https://www.belgium.be/fr/economie/entreprise/creation/independants/complementaire

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to whether temporary work agencies will be covered by this Directive as soon as they function as digital platform, how this will be articulate with Directive 2008/104/EC8 and how far this will affect competition between online and brick and mortar Temp Agencies.

(15) From a legal point of view, all these elements taken together covering and impacting all independent workers, including all "genuine independent" and "complementary independent" that would in the end (long end) be qualified as such according to EU and national law, constitute a violation of the definition of employee vs workers as set by established CJEU case law since Lawrie-Blum case in 1986.9 Furthermore, this would also be in breach of the definition of services and thus of the freedom to provide services under EU Treaty (Article 56 TFUE), as well as of the Freedom to conduct a business as protected by Article 16 of the EU Charter of fundamental rights.

(16) Finally, the Parliament’s amendments double down on two contentious issues that were strongly rejected by a significant group of Employment Ministers in the Council:

● Article 5, § 3c specifies that proceedings for a rebuttal do not have a suspensive effect; Practically, this means that even if there is no explicit mentioning of non-suspensive effect between the presumption and the rebuttal, nothing prevents the presumption standing during the legal and judicial proceedings, and a the platform having to assume the obligations of an employer until a decision is made, even if all criteria to qualify as independent worker are fulfilled under the current established case law. In most Member States, this means practically years of legal uncertainty on the status of the platform workers. Such a provision has been fought by a significant group of Member States willing to avoid excessive administrative burden for the self-employed, for the platforms, public administrations and courts, and safeguard national prerogatives as protected by subsidiarity principle. As they form a blocking minority, it is hard to see how the Parliament’s position can be reconciled with the Council on this issue.

● Art. 3 § 2 requires that when platforms are recognized to be employers, they shall comply with all obligations relating to “income tax and financing of social protection”. This amendment is amplified in Art. 11 §1, where Parliament requires that platforms should inform authorities about their platform workers and their status (thus including genuine independent) and share all relevant data in order to “comply with their fiscal and social protection obligations”. Again, without prejudice to the need to declare employees under labor law, a significant group of Member States is likely to form a blocking minority are opposing these new obligations regarding tax, criminal and social security proceedings, which go against Member States’ competences and procedures.

(17) In addition, based on the most recent case law,10 we have doubts that making platforms liable for fully reporting personal data of genuine independent workers to authorities would be compatible with the GDPR11 .

11 Regulation (EU) 2016/679 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).

10 CJEU, 22 November 2022, joined cases C-37/20 and C-601/20, Luxembourg Business Registers.

9 CJEU, 3 July 1986, case 66/85, Lawrie-Blum, para 17. "for and under the direction of another person".

8 Directive 2008/104/EC of 19 November 2008 on Temporary Agency Work.

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(18) Overall, if the Parliament’s approach on the presumption would risk creating significant legal uncertainty and would risk being detrimental to both platform workers and platforms. According to the Commission estimates, there were 28 million platform workers in 2020 (43 million expected in 2025), with 5.5 million are in risk of being wrongly classified out of which it is estimated that between 1.7 million and 4.1 million would be reclassified as a result of the Commission’s proposal.

(19) If the Parliament’s approach is adopted, a large number of 28 million platform workers could be be presumed to be employees, resulting in a huge number of rebuttal proceedings creating procedural bottlenecks.

(20) From an economic point of view, the cost could be significant since the cost of both the (wrong) qualification of genuine independents and of the rebuttal procedure will destroy some of these jobs ; from a practical point of view, it does not make sense to plan all national authorities and jurisdictions to be enshrouded by procedures to qualify as independent, workers who are and have always been independent ; from a social point of view, in the end, the qualification of platform workers will just be hostage to fortune ; from a legal point of view, the amendments contain clear breaches of CJEU case law and of EU fundamental principle, notably Personal data protection, Legal certainty and Freedom to conduct a business. This is against the limits inherent to Parliament's rights to amend Commission's proposal, which does not allow such denaturation of the initial proposal.

As Parliament is keen on a strict application of Better Regulation principles which also applies to the Legislator, it should normally be expected that an impact assessment should be produced by Parliament services12 to complete the Commission’s impact assessment and quantify the costs of the major changes introduced by their amendments.

2. ALGORITHMIC MANAGEMENT UNDER HEAVY CONTROL.

(21) The essence of the Parliament’s amendments is to substantially increase the restrictions already introduced by the Commission in its proposal both on the processing of workers’ personal data and the use of automated systems in the management of the platforms. For the Parliament, platform workers should have unlimited access to information on how the algorithms work, how their performance is monitored and evaluated, which personal data are being used and how their behaviour affects decisions taken by automated systems.13 By doing so, the Parliament risks ignoring and even jeopardising critical elements of the functioning of platforms, as well as the impact this may have on the rest of the participants in the marketplace. For example, there is a risk that unlimited data and information sharing would severely hamper the right of consumers to data protection and to safety.

(22) In several amendments to Art. 6 §2., Parliament adds to the already numerous obligations set by the Commission proposal to inform platform workers on the automated monitoring systems; these additions cover in particular the pricing of individual assignments, the aim of the monitoring, recruitment, promotion,

13 The Parliament rapporteur wanted to extend these new obligations to all workers, not only platform workers, as indeed many workers outside platforms are also impacted by algorithms in their daily work; she finally had to give up, given the burden it would create on businesses and backlash this proposal caused.

12 European Parliamentary Research Service (EPRS).

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ranking, access to work assignments, performance & behaviour evaluation, termination of accounts.

(23) Parliament also foresees that any change to the automated system of the data processing system should be subject to prior information of the platform workers (Art. 6 § 3.) and even to an impact assessment (Art. 6 § 5 a), while Art. 7 § 1 requires from platforms an annual impact assessment of decisions supported by automated systems. The latter impact assessment which should cover discrimination issues, health & safety, fundamental rights should be submitted to labour and data protection authorities and lead to discontinuing the automated system in case risks are established.

(24) Furthermore, Parliament adds several new prohibitions in the process of personal data of platform workers in Art. 6 § 5. They cover data processing concerning race, political opinions, religion, health, sexual orientation, but also add prohibition of biometric technologies, and discrimination. In fact, these additions are redundant, as both national and European legislations fully provide for similar prohibitions. The Artificial Intelligence Act proposed by the Commission in April 2021 also introduced similar restrictions and prohibitions, including on the use of biometric technologies.

(25) Several amendments are added to Art. 7 of the Commission proposal to ensure human oversight on all decisions significantly affecting working conditions (§1). The objective is that a human must always remain the ultimate decision-maker for all essential aspects of professional life. Therefore, algorithms should not be able to decide on their own on the dismissal of workers or the organisation of their working schedule (Art 6 §2 a)).

(26) However, these provisions, just like the initial proposals of the Commission on this point are redundant. They duplicate Article 22 of the General Data Protection Regulation (GDPR), which provides that “the data subject shall have the right not to be subject to a decision based solely on automated processing”, and that “the data controller shall implement suitable measures to safeguard the data subject’s rights and freedoms and legitimate interests, at least the right to obtain human intervention on the part of the controller, to express his or her point of view and to contest the decision.”

(27) Article 22 of the GDPR has already been actively used to protect against automated decision-making in the context of digital platforms. This has been an active area for active litigation: for example, drivers have been challenging their algorithm profiles in courts. In other words, Parliament’s amendments are redundant with the existing legal protection already granted to workers.

(28) Such duplications are even more clear when considering the Commission proposed regulation on Artificial Intelligence (AI) which sets harmonised rules for certain AI systems, notably for high-risk AI systems which include “AI intended to be used for making decisions on promotion and termination of work-related contractual relationships, for task allocation and for monitoring and evaluating performance and behaviour of persons in such relationships.” As soon as the AI proposal is adopted, digital platforms will have to perform a conformity assessment by a third party covering risk management, transparency, interpretation of decisions, and guaranteeing human oversight while in use.

(29) Article 22 of the GDPR and the proposed Regulation on AI means that platforms will be subject to harmonised rules across the Internal Market which oblige them to provide drivers with information about all AI systems and algorithms used to monitor, supervise, and evaluate them. The amendments proposed by Parliament

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(as the Commission proposal) risks creating confusion: the GDPR and the AI proposal are both regulations, hence directly applicable acts, contrary to the Platform Work proposal, which is a Directive, requiring transposition in Member States, with the risk of divergent national rules.

3. EXCESSIVE ADMINISTRATIVE BURDEN AND CONTROLS

(30) The Parliament’s amendments add a considerable new administrative burden on platforms, authorities and new controls, without any proportional benefit for workers. Here are a few examples taken from the amendments across the Committee’s proposed articles:

● For the implementation of the employment presumption, amendments ask Member States to provide guidance (which may prove difficult in the absence of the criteria deleted by Parliament), capacity building and training, sufficient resources for labor inspectorates, technical assistance regarding algorithms and even ask to establish national targets for inspections of platforms (Art. 4 § 3). This is far reaching and will not be accepted by Member States as interfering with their national competences.

● In addition to the requirement of impact assessments for data protection and to review the use of automated systems, workers must be informed about data transfers, and have the right to erase such data (Art. 6 § 5 a), b), c)). For instance, workers might contest how the automated tools assess time for completing a delivery. Again, these amendments duplicate similar provisions of GDPR. Moreover, all the algorithm’s elements to assess the workers’ performance could be subject to collective bargaining as per amendments to Art. 8 & 9.

● Platforms are requested to share much more information with national authorities. Article 11 is amended by Parliament to say that platforms must inform authorities of work performed by all platform workers, irrespective of their status, in order to “comply with fiscal and social obligations” and Article 12 §1 details the information to be submitted (average weekly hours, average income etc.).

● Platforms are requested to develop policies against violence and harassment (Art. 15 § 1a), again an issue fully covered under national and European legislations applicable to the workplace.

● Cross-border cooperation is increased, with automatic exchange of information between labour, social protection and tax authorities (Art. 12 a).

(31) Moreover, Parliament has added several paragraphs to Art. 19 requesting the establishment of dissuasive financial penalties in case of infringement, for instance “setting a percentage of the digital labour platform’s total annual turnover in the preceding financial year”.

4. CLARIFICATION/ADAPTATION OF THE SCOPE.

(32) Finally, Parliament wants two adaptations regarding the scope of the Directive. Recital 17 c) clarifies that platforms providing outsourcing or task allocation for many clients online (crowdwork or microwork platforms) would be covered. According to the Parliament, no micro-work should escape from its artificial requalification of workers.

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(33) Adding to confusion and competition imbalances, Recital 17 b) establishes a distinction between ride-hailing platforms which would be covered by the new rules, and taxi dispatch services which would not be covered. (“Taxi dispatch services, as regulated under national law and practice, can be distinguished from ride hailing digital labour platforms, when they are merely an ‘add-on’ to a pre-existing service and only connect genuinely self-employed licensed taxi drivers with their customers, sending the communications received from persons seeking a taxi service to licensed taxi drivers, provided that they do not exert any type of control or direction, in accordance with this Directive, …/…”). What will happen to licensed PHV drivers that are offering pre-existing services and are genuinely self-employed even before the invention of platforms if not again face more restrictions than taxis with whom they compete for booked journeys.

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Delivery Platforms Europe Views on ST7491/23 As platforms, our overriding request continues to be for legislators to strive for maximum legal certainty in how the presumption will work in practice and ensure that those who are genuinely self-employed are not covered by the presumption. We welcome the Presidency’s maintenance of provisions which limit the application of the presumption to proceedings where the employment status is at question (not in tax, criminal or social security proceedings). This provides greater legal certainty given the risk of contradictory decisions particularly when different definitions exist within even one Member State. It is unfortunate however that some of the changes proposed by the Presidency would create greater uncertainty about how and when the presumption would apply. For example, what should happen in a potential contradiction between compliance with law, collective agreements and the criteria? Moving key aspects of the text from operative articles and into recitals leaves greater room for interpretation both in transposition and by authorities post-transposition and thus increases the risk of differing outcomes in different proceedings, even within the same Member State. This reduces legal certainty and is something we would advocate be avoided. Any general approach reached by the Council will be only the starting point for negotiations with the Parliament on a final text. The position which was narrowly approved by the European Parliament contains significant ambiguity, introduces provisions which are unclear in their intent or effect and would, if implemented today, eradicate the legal certainty which has been building through jurisprudence and court decisions within every Member State. A middle ground between the positions of the Parliament and Council presents the possibility of significant legal uncertainty and we would therefore urge the Council to strive for maximum clarity in the general approach to limit the inevitable ambiguity within a final text. We believe that greater certainty can be introduced in the text by:

1. Clarifying that compliance with national law and collective agreements would not constitute meeting the criteria within the operative article.

2. Clarifying the wording of the criteria to avoid multiple criteria being triggered by one instance and ensuring that they focus on behaviours indicative of bogus self-employment.

3. Clarifying that where it is manifest that an individual is self-employed under national law, the presumption need not be applied.

4. Clarifying that attempts to prevent invasive data processing would not prevent necessary processing of data with legitimate safety grounds under GDPR.

We have provided specific comments and wording suggestions for the relevant articles below.

1. Clarifying that complying with national law and collective agreements would not constitute meeting the criteria

Delivery Platforms Europe understands that the intention of the Presidency is to clarify that the criteria in Article 4 should not be triggered where the “control and direction” exerted by the platform (as per the preamble to the proposal and the clarification contained in Recital 24). We welcome this intent. However, in order for the content of Recital 24 to be justiciable and ensure legal certainty, its content should be re-inserted into the Articles and reworded. Inclusion of a provision within contractual terms does not indicate that it is unilaterally determined by the platform nor that it is not one required by law or collective agreements. The same can be said of a platform’s ‘practice’. As such, merely stating that trigger of the presumption should be on the basis of contractual terms of practice does not ensure that complying with national law or the provisions of a collective agreement would not risk meeting some of the criteria. For example, the Greek Labour law1 (passed in 2021) regulates health and safety conditions of service providers. The article states that platforms are responsible for the welfare, health and safety of any type of worker regardless of contract type. Under this law, platforms are required to offer work equipment to freelancers, including protective helmets as well as corresponding clothing that meets the criteria suitable for the job such as, among others, waterproof protection, gloves and reflective vest. This risks platforms fulfilling control factors (b) and (c), and it is uncertain that an authority when examining this situation would be prevented from considering the criteria met because it was in order to comply with the law rather than because it was in the terms and conditions or practice of the platform. Please find suggested wording below:

PRES TEXT 17/3 AMENDMENT

Article 4

Legal presumption

1. The relationship between a digital labour platform and a person performing platform work through that platform shall be legally presumed to be an employment relationship when

Article 4

Legal presumption

3. The relationship between a digital labour platform and a person performing platform work through that platform shall be legally presumed to be an employment relationship when

1 https://elinyae.gr/en/node/73590

the digital labour platform exerts control and direction over the performance of work by that person.

2. For the purpose of the previous subparagraph, exerting control and direction shall be understood as fulfilling, either by virtue of its applicable terms and conditions or in practice, at least three of the criteria below:

the digital labour platform exerts control and direction over the performance of work by that person beyond what is required by law or collective agreements.

4. For the purpose of the previous subparagraph, exerting control and direction shall be understood as fulfilling, either by virtue of its applicable terms and conditions or in practice, a majority of the criteria below.

Measures or rules which are required by law or collective agreements shall not be understood as fulfilling one or more criteria for triggering the legal presumption under this Directive:

2. Clarifying the wording of the criteria to avoid multiple criteria being triggered by one instance and ensuring that they focus on behaviours indicative of bogus self- employment.

Moreover, we continue to believe that the best way to protect genuine self-employment is for the Directive to require that a majority of criteria be met in order to trigger the presumption, particularly in instances where the triggering of the presumption is possible absent the fulfillment of any of the Yodel criteria. In many instances, this would lead courts and labour authorities to apply the presumption in instances of genuine self employment without reference to either the facts or the law.

PRES TEXT 17/3 AMENDMENT

(b) The digital labour platform requires the person performing platform work to respect specific rules with regard to appearance, conduct towards the recipient of the service or performance of the work;

(b) The digital labour platform requires the person performing platform work to respect extensive binding rules with regard to appearance, conduct towards the recipient of the service or performance of the work;

(c) The digital labour platform supervises the performance of work including by electronic means;

(c) The digital labour platform closely supervises the performance of work including by electronic means for purposes other than what is required for the essential functioning of the service;

3. Clarifying that where it is manifest that an individual is self-employed under national law, the presumption need not be applied.

We are concerned that the amendments to this Article, ensuring that only administrative authorities can choose to notapply the presumption in cases where it is clear an individual is self- employed, will simply lead to more spurious individual cases being taken in by the judicial system. As such, the Courts and any other relevant authorities should have the ability to not apply the presumption where it believes that the relationship in question is manifestly not an employment relationship. Because the intention is to minimise uncessary litigation and procedures, the possibility to not apply the presumption should not be limited to instances where the enforcement is at the initiative of the authority but in all instances.

PRES TEXT 17/3 AMENDMENT

Article 4a

Application of the presumption and the rebuttal

2. Member States may grant competent national administrative authorities a discretion not to apply the presumption, if:

a) they are verifying compliance with or enforcing relevant legislation on their own initiative, and b) it is manifest 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.

Article 4a

Application of the presumption and the rebuttal

2. Member States shall grant competent national authorities the discretion not to apply the presumption, if:

a) they are verifying compliance with or enforcing relevant legislation on their own initiative, and b) it is manifest 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.

4. Clarifying that attempts to prevent invasive data processing would not prevent

necessary processing of data with legitimate grounds under GDPR. The limitation of data processing to time periods when a person is using the platform risks legal uncertainty and unintended consequences for platforms, platform workers and consumers; particularly in relation to health and safety. Platforms are required to collect and process personal data from individuals in many instances where they are not offering or performing platform work:

● For onboarding, including right to work checks. ● For compliance with other laws e.g. EU DAC7 which requires collecting personal data from

couriers, even those that are no longer working with the platform to provide to tax authorities.

● In response to a police request to cooperate with investigations. ● To resolve a complaint. ● To investigate an accident involving a member of the public.

These examples demonstrate legitimate reasons a platform would need to collect personal data from couriers while they are not actively offering or performing platform work but they risk being prevented from doing so by this text. By ensuring where the collection of such information is permitted under Articles 6 (1)b, c, d, e and 9 of GDPR, the examples above would continue to be permitted while still preventing platforms from seeking to collect data of no relevance or that is not necessary.

PRES TEXT 17/3 AMENDMENT

Article 5a

Limitations on processing of personal data by means of automated

monitoring or decision-making systems

1. Digital labour platforms

shall not, by means of automated monitoring or decisionmaking systems: a) process any personal data on the emotional or psychological state of

Article 5a

Limitations on processing of personal data by means of automated monitoring or decision-

making systems

2. Digital labour platforms shall not, by means of automated monitoring or decisionmaking systems: a) process any personal data on the emotional or psychological state of the person performing platform work;

the person performing platform work; b) […] c. process any personal data in relation to private conversations; including exchanges with platform workers’ representatives; d. collect any personal data while the person performing platform work is not offering or performing platform work

b) […] c. process any personal data in relation to private conversations; including exchanges with platform workers’ representatives; d. collect any personal data while the person performing platform work is not offering or performing platform work.

This paragraph shall not affect the possibility for digital labour platforms to process personal data on the basis of points (b), (c), (d), (e) and (f) of Article 6(1) and Article 9 of Regulation (EU) 2016/679, or where it is in response to a request by the person performing platform work.

Directive proposal VAT in the digital age Deemed supplier rule

Bolt’s position

October 2023

Bolt is the leading European urban mobility platform, founded in Estonia in 2013 and operating in 24 Member States. Bolt’s main service is the intermediation of ride-hailing rides operated by drivers, who can either be licensed under local PHV (private hire vehicle) regulations or “traditional” taxi drivers.

Bolt is very concerned about the unintended consequences of a provision of the Proposal for a Council Directive amending Directive 2006/112/EC as regards VAT rules for the digital age, more specifically the provision inserting an article 28 a) in Directive 2006/112/EC (the “deemed supplier rule” in article 2 of the Proposal).

The Commission argues that such a rule will solve VAT inequality. In fact, it will create VAT inequality in the passenger transport sector where before there was none.

No VAT inequality in the passenger transport sector

According to the Commission’s explanatory memorandum, “The passenger transport and accommodation sectors have been explicitly identified by the study as sectors in which VAT inequality is at its most apparent” and “These issues will be solved by introducing a deemed supplier model, by which platforms will account for the VAT on the underlying supply where no VAT is charged by the supplier, thereby ensuring equal treatment between the digital and off-line sectors of short-term accommodation rental and passenger transport.”

Bolt strongly believes that for the passenger transport sector, such an assessment is unfounded. In the passenger transport sector, there is no unbalanced situation in which drivers working through digital platforms would be exempted from VAT, where those working through other means would be liable for VAT.

In the EU, all passenger transport drivers are licensed professionals, whether they work on platforms or not. Both “traditional” taxi and ride-hailing drivers are regulated in all Member States where they exist. Whether drivers are liable for VAT has nothing to do with the fact they offer their rides offline or through a platform. This depends mainly on the level of their revenues and the VAT threshold set by each Member State. The directive proposal is therefore claiming to fix an issue which does not exist.

Discrimination against digitally enabled transport booking

Far from fixing an unbalanced situation, the proposed provision would actually create distortion and unfair competition between rides offered through digital means and those hailed in the street or booked by phone. It seems odd that European tax law would actively discriminate against transport booking services using digital technology competing against those which do not. This would go against the ambition of the EU to support the development of the digital sector in Europe and would

harm digital transport booking services which allow tens of millions of European citizens to access transport services in a more efficient and safer way.

An unlevel playing field would be created between the same services, depending on how they are booked. Indeed, the very same driver could be exempted from VAT when being street hailed or booked by phone (because his/her revenues would be below VAT threshold), while his/her ride would be subject to VAT when offered through a platform. In many Member States, one should bear in mind that drivers have the possibility to be booked by digital platforms or by offline means.

Negative impact on drivers with low revenues

The proposed provision could actually harm drivers who until now have been exempted from VAT by Member State tax rules because of their low revenues. In Estonia, this represents two thirds of the drivers operating on Bolt platform. The deemed supplier rule would lead in Estonia to a 10 million euro additional VAT to be charged with a negative impact on the drivers, the passengers and on Bolt. As most ride-hailing platforms operating in the EU are still striving to make their operations economically sustainable in the long run, the cost of the additional VAT could be compensated by an increase of the platforms’ commission on the price of the ride, leading to a decrease of the drivers’ earnings through platforms. Alternatively, it could lead to an increase in the price of rides offered by drivers whose revenues are under VAT thresholds, making them less competitive which goes against the purpose of exempting revenues below a certain threshold from VAT liability.

European platforms will be harmed first

The provision would mainly impact European passenger transport platforms, as they account for the vast majority of platforms operating in the EU. Not only do they represent most ride-hailing platforms in the EU, but the impact would be greater on them compared to large non-European actors as their smaller size means they would be less able to absorb the additional costs incurred and the loss of competitiveness. The proposed rule will indeed impose a huge and expensive compliance burden on European platforms, making it even more difficult for them to compete with global giants.

Violation of VAT neutrality

Normally VAT cost is borne only by the final consumer (passenger) and remains neutral at all stages of the value chain for a taxable person doing business. If an entrepreneur is non-VAT liable (below the registration threshold), he/she does not have the right to input VAT deduction but at the same time does not have to charge output VAT. The Directive proposal would lead to the fact that non-VAT liable drivers would likely have to bear the burden of VAT twice: -they will be charged VAT by the platform on the facilitation services (without right of VAT deduction) -and very likely, the additional VAT charged by the platform (as deemed supplier) on the ride, will be indirectly transferred to them, if not absorbed by the passenger (an increase of rides’ prices).

Bolt therefore calls for the removal of passenger transport from the legislative provision as it will create distortion when there was none and discriminate against digital services. Equally important, it will mainly hit European actors and could eventually harm the drivers who have the lowest revenues.

PWD update October 2023

Key points:

● Several provisions go significantly beyond the political agreement reached by Member States at Council in June. The current compromise would effectively automatically reclassify all platform workers as employees, which is the opposite of the previous political agreement.

● Several provisions can blunt the effect of national employment laws and customs on the application of the directive. Meanwhile, exceptions on where the directive does not apply for social, tax, law enforcement issues are not clearly defined.

Our main asks are that:

● The Council negotiators stay within the limits outlined by June’s general approach. The final Directive should neither lead to automatic reclassification of all platform workers, nor ban the use of algorithms in platform work.

● Allied Member States should encourage the Spanish Council Presidency not to seek a new negotiating mandate at the meeting of 27/10 when Member State ambassadors to the EU will meet (COREPER) to discuss the file.

● Proper legal advice is taken at every stage of this process to clarify the effect of compromise provisions on existing national laws. Clear, written guidance by the Council’s and the Commission’s legal service can ensure a workable Directive that does not erode national laws and competences, or overwhelm local and national enforcement.

Spain - which has the Council rotating Presidency until the end of 2023 - is pushing EU countries to accept a system leading to automatic reclassification. This clearly exceeds the limits of the mandate agreed in June by Member States within the Council.

The recent “compromise” put forward by the European Parliament and warmly received by the Council Presidency, goes beyond the well defined objective to keep self-employment a viable option:

● In practice, any ride-hailing driver or delivery courier who works through a platform that uses a rating system, enables payments, or insists on appropriate standards would be considered as an employee under the Directive.

● The ‘indicators’ currently discussed are designed in a way that makes it practically impossible for workers to remain self employed. A more balanced approach is possible through the criteria agreed upon in the Council’s text (requiring 3/7 criteria, an examination of the facts and suspensive effect).

● This change of employment status would not only be automatic, but also apply on tax, social security and law enforcement issues. This would erode the procedural autonomy of Member State Courts, cause significant administrative burdens and prolong cases by reforming largely irrelevant points of law.

● Platforms cannot rebut the presumption unless they show that the same criteria (which are impossible not to meet) do not apply. And so, even if a platform worker is legally self employed under national laws, the presumption automatically becomes reclassification.

● This effective reclassification could happen without a complaint from the person in question. A Trade Union, or a labour inspector could trigger the presumption independently, as it has happened in countries where such a system exists.

This goes beyond the Council’s position which aimed to protect genuine self-employment. Therefore, the Council Presidency should stay within clearly defined

red lines.

The current compromise can both undermine clearly defined national competences, and erode well-functioning existing laws

● Council Presidency and Parliament both want to require national labour authorities to apply the presumption, removing their discretionary power (as defined in the Council text) to not apply it when it is clear that national law does not indicate the existence of an employment relationship.

● Council Presidency and Parliament both want the presumption to apply automatically when a person or a trade union launches a proceeding, without reference either to criteria, Member State law or the facts of the case.

● Council Presidency and Parliament want to set arbitrary deadlines for rebutting the presumption in EU law, bypassing the procedural autonomy of Member State courts and creating a significant administrative burden on national legal systems.

● Council Presidency and Parliament want the rebuttal to require that the conditions for the presumption are not met, making the entire process determined by European rather than national employment criteria.

● In addition, existing laws protecting passengers and drivers, and improving working conditions by promoting collective agreements between platforms and workers are in peril, as the derogations separating them from the effect of the directive may be sacrificed for the sake of a compromise.

● Even so, many of the recitals which protect national competences still remain open to legal interpretation, within a highly litigious process. Meanwhile the Commission avoids providing reassurances that national sectoral legislation will not need to change following the adoption of the directive.

Member States need legal certainty on how the current text will interplay with national laws, and legal reassurances that they can continue to exercise their competence. The

Council Presidency should ask for clear written guidance from the Council’s legal service, or the Commission on that matter.

A blanket ban on data processing will make the platform economy less transparent and less safe

● Leveraging data is part of the platform economy and the future of work. According to the Council’s political agreement in June, all platform workers should have the right to put

their data to use. Consent-based processing, in accordance with the GDPR, can ensure more trust and transparency.

● The Council Presidency is ready to compromise with the Parliament, accepting a blanket ban on automated systems, without taking into account national specificities. Definitions on what constitutes automated decision making will be set at an EU level, and are currently broad and open to interpretation.

● The unintended consequence is that several innovative features increasing trust within the platform economy would no longer be possible. This ranges from data-driven fraud prevention to an expedited handling of a workers complaint. Even safety features, such as sharing audio recordings to protect both drivers and passengers would be a thing of the past.

The final rules on Algorithmic Transparency should remain proportionate and ultimately serve to improve transparency, safety and trust in the platform economy. Rules on

algorithms should be consistent with existing and upcoming rules on platforms, trade secrets, and artificial intelligence.

Tallinn, 8 Detsember 2023

Lugupeetud minister Riisalo,

Juhtiva Euroopa sõidujagamis- ning toidu kohaletoomise platvormina, on Bolt osalenud aruteludes platvormitöö direktiivi üle alates ettepaneku algusest kuni tänaseni. Enne lähenevat 2023. aasta viimast triloogi soovin osundada Portugali kaasusele, mis näiteb praktikas, mida tähendaksid komisjoni ja parlamendi poolt hiljuti pakutud sätted.

Aprillis 2023 võttis Portugal vastu seaduse "Agenda do Trabalho Digno", mis sisaldab platvormitöötajate töösuhte eelduse mehhanismi, põhinedes laial indikaatorite nimekirjal ja madalal käivituskünnisel (vt lisatud dokumenti). See lähenemine sarnaneb Euroopa Komisjoni ja Euroopa Parlamendi pakutud kompromissiga platvormitöö direktiivi osas.

Mõlemad lähenemised väidavad, et nad tahavad vältida platvormitöötajate massilist ümberklassifitseerimist ja keskenduda ainult nendele juhtudele, kus töötajad on valesti klassifitseeritud. Kahjuks on reaalsus praktikas hoopis teistsugune.

Portugalis on madala kriteeriumide künnise ja indikaatorite puuduliku selguse tõttu sealne tööinspektsioon palunud viimastel nädalatel klassifitseerida ümber üle tuhande platvormitöötaja. Inspektorid valivad tihti tänaval töö tegijaid juhuslikkuse alusel. Ettevõtted teatavad juhtumitest, kus autojuhid/kullerid registreerusid platvormidel, ilma et oleksid isegi ühtegi sõitu teinud, ent nüüd klassifitseeritakse nad töötajateks.

Veelgi olulisem on, et enamik neist ümberklassifitseerimise taotlustest on vastu platvormitöötajate endi tahtele. Portugalis, nagu kõigis ELi riikides, on platvormitöötajad öelnud korduvalt - uuringust uuringusse - et soovivat jääda sõltumatuks. 2021. aastal avaldas University Institute of Lisbon (ISCTE) uuringu, mille kohaselt väitis üheksa Portugali kullerit kümnest, et nende elutingimused on digitaalsete kohaletoimetamisplatvormidega töötades paranenud, kuna nad naudivad paindlikkust ja võimalust teenida osaajaliselt tulu teiste töökohtade kõrval.

Portugalis valitsev keeruline olukord võib olla eelvaade võimalikest tahtmatutest tagajärgedest, mis tulenevad platvormitöö ekslikust reformist kogu Euroopas. Juhtivad platvormid, nagu Bolt, kaaluvad nüüd oma investeeringute ümbermõtlemist Portugalis, samas kui teised, nagu FreeNow, Getir ja Just Eat Takeaway, on juba lõpetanud seal tegevuse. Bolti jaoks, ühena vähestest Euroopa tegijatest, kes suudab konkureerida väljastpoolt Euroopa Liitu pärit globaalsete hiiglastega, on see suur risk ja kriitiline oht.

Seetõttu kutsume Eestit koos teiste liikmesriikidega üles lükkama tagasi kiirustatud kokkuleppe ja jätkama tasakaalustatud teksti toetamist, mis põhineb nõukogu 2023. aasta juuni üldisel lähenemisel.

Lugupidamisega,

Markus Villig CEO

Bolt Technology OÜ https://bolt.eu/

Vana-Lõuna 15, Tallinn 10134 Estonia Reg. number: 12417834

DELIVERY PLATFORMS EUROPE COMMENTS ON PROVISIONAL AGREEMENT: PLATFORM WORK DIRECTIVE

14 December 2023

Many of the proposals previously made by the Parliament and rejected by the Council appear to be included in this provisional agreement. This is concerning not only because it undermines the democratic legitimacy of the decision making process, setting a new precedent in how EU legislation is made, but also because the text itself results in a significant weakening of the Council’s position in key areas. If approved risks negatively impacting couriers, partners and European economies. We encourage Member States to reject this proposal which does not reflect the mandate granted to the Presidency.

Below we outline the following concerns:

1. The extent of the deviation from the General Approach in terms of the threshold needed to trigger the presumption and in terms of the content of the criteria or indicators

2. The extent of the deviation from the General Approach in terms of the process of applying the presumption.

1. Deviation of presumption from General Approach and criteria wording

Yesterday’s agreement significantly departs from the Council’s general approach. The agreement reduces the number of criteria that must be met for the presumption to apply from three to two and now refers to indicators. The Rapporteur in the press conference announcing an agreement stated that the ‘indicators’ are preferred to ‘criteria’ as criteria are linked to providing evidence. According to the rapporteur, ‘hints’ should be enough to trigger the process. This risks undermining the idea that an examination of the facts would be required before a presumption could be applied, something which was key in the general approach and is a key principle of labour inspections.

The criteria as we understand them to have been agreed are:

a. the digital labour platform determines the level of remuneration or sets upper limits; b. the digital labour platform supervises the performance of work including by electronic

means; c. the digital labour platform determines or control the distribution or allocation of tasks; d. the digital labour platform determines or controls working conditions or the

performance of work, or the discretion to choose one’s working hours or periods of absence;

e. the digital labour platform restricts the freedom to organise one’s work, or requires the person performing platform work to respect specific rules with regard to appearance or conduct towards the recipient of the service.

There appears to have been a significant change in the criteria - with the addition of “control over the distribution or allocation of tasks” now included. This was not included in any of the institutions’ texts. This criteria would likely apply to a large number of platforms as most models involve the distribution and allocation of tasks.

In addition, the final two criteria contain multiple elements each meaning while the list states five criteria, there are in fact many more. . If the criteria are broken out, the reality is that only two control factors out of eight must be met to trigger the presumption. Going one step further, given how widely criteria (c) is likely to apply, in practice, one of seven of the remaining factors would result in triggering of the presumption. This goes far beyond the headline of the press release; and in fact far beyond even the original Commission proposal and the General Approach. We have broken down a comparison table below:

Council General Approach Provisional Agreement with grouped indicators separated to clarify practical impact

For the purpose of the previous subparagraph, exerting control and direction shall be understood as fulfilling, either by virtue of its applicable terms and conditions or in practice, at least three of the criteria below:

a. The digital labour platform determines upper limits for the level of remuneration;

b. The digital labour platform requires the person performing platform work to respect specific rules with regard to appearance, conduct towards the recipient of the service or performance of the work;

c. The digital labour platform supervises the performance of work including by electronic means;

d. The digital labour platform restricts the freedom, including through sanctions, to organise one’s work by limiting the discretion to choose one’s working hours or periods of absence;

e. The digital labour platform restricts the freedom, including through sanctions, to organise one’s work by limiting the discretion to accept or to refuse tasks;

f. The digital labour platform restricts the freedom, including through sanctions, to organise one’s work by limiting the discretion to use subcontractors or substitutes;

g. The digital labour platform restricts the possibility to build a client base or to perform work for any third party

The contractual relationship between a digital labour platform ▌ and a person performing platform work through that platform shall be legally presumed to be an employment relationship when any two of the following indicators of control and direction are found, by virtue of agreed or unilaterally determined terms and conditions or in practice:

a. the digital labour platform determines the level of remuneration or sets upper limits;

b. the digital labour platform supervises the performance of work including by electronic means;

c. the digital labour platform determines or control the distribution or allocation of tasks;

d. the digital labour platform determines or controls working conditions

d. the digital labour platform determines or controls the performance of work

e. the digital labour platform determines or controls the discretion to choose one’s working hours or periods of absence;

e. the digital labour platform restricts the freedom to organise one’s work,

e. the digital labour platform requires the person performing platform work to respect specific rules with regard to appearance or conduct towards the recipient of the service.

In addition to concerns with the drafting of individual criteria, we are unclear about the impact of changing the word ‘criteria’ to ‘indicia’ or ‘indicators’ and the explicit reference to an open

list. We believe that it further confuses when a presumption may and may not apply, particularly as the rapporteur appears to have suggested in the press conference that an indicator represents a lower threshold of evidence than criteria.

This low threshold, ambiguity in the indicators and the term indicators of control will lead to the presumption being incorrectly applied to people that are genuinely self-employed under national law, creating excessive and unnecessary procedures, something which was much better prevented under the Council General Approach.

2. Deviation of procedures from General Approach There are many elements within the text relating to procedures which Member States rejected the Presidency’s request for flexibility on:

● The text no longer explicitly provides that Member States can permit suspensive effect

● The presumption criteria are drafted in such a way that it could be applied to genuinely self-employed individuals.

● The text no longer provides that complying with collective agreements would not be considered to meet the criteria.

● The text no longer ensures that the presumption would not be applied in tax, criminal and social security hearings.

● The text is ambiguous as to third status in the event of a failure of rebuttal ● The text mandates follow-up inspections by authorities in the event of reclassification.

Each of the areas listed above were discussed at length in Council and requests for flexibility on them were repeatedly rejected. Despite this, the Presidency has agreed to them with the Parliament.

Limitations to data processing remain problematic

Finally, we repeat here our concerns regarding Chapter 3 of the Directive.

A broad definition can create legal ambiguity: The lack of consistency between the proposed definition on automated-decision making and its definition in the GDPR leaves room for a lot of ambiguity, on which of the two would take precedence. The proposed broad definitions used in PWD capture almost any electronic system in use by companies. Aligning these definitions with the GDPR would capture only systems producing significant legal effects based solely on automation.

Safety and law enforcement: The PWD definitions should also give platforms the flexibility to process personal data where obligated to by law, for instance in cases of safety incidents. The current limits to processing data related to private conversations, would make simple features, such as reclaiming a lost item impossible.

Delivery Platforms Europe Remarks on ST 5133/24

The Belgian proposal on the Platform Work Directive remains a significant departure from the General Approach, and even from the Commission’s 2021 initial proposal. This text will threaten the flexibility enjoyed by thousands of genuinely self-employed individuals and will lead to unnecessary legal and administrative processes. Provisions on algorithmic management are very challenging to implement and enforce.

Criteria

The combination of ‘indicators’ rather than criteria and a low threshold required to trigger the presumption will result in the presumption being incorrectly applied to those legally self-employed under national law. Courts and administrative bodies will be burdened with unnecessary procedures as a result. This can be avoided by reverting to ‘criteria’, clarifying the criteria and increasing the threshold of criteria required to trigger the presumption.

1. Indicators instead of criteria The proposal continues to refer to indicators rather than criteria. The Rapporteur in the press conference announcing an agreement stated that ‘indicators’ are preferred to ‘criteria’ as criteria are linked to providing evidence. According to the Rapporteur, ‘hints’ should be enough to meet indicators. This risks creating significant legal uncertainty and undermining the idea that an examination of the facts would be required before a presumption could be applied, something which was key in the general approach and is a key principle of labour inspections.

2. Criteria wording The wording of criteria remains very broad and unclear. Criteria (b), “the digital labour platform supervises the performance of work”, is incredibly broad and vague, and is open to be interpreted to be met in a wide range of instances, thereby potentially capturing huge number of individuals working through platforms. Some supervision is necessary in any commercial agreement regardless of how it is organised.

3. Threshold to trigger the presumption The threshold of criteria to meet to trigger the presumption is very low (2/5) and deviates from the Council’s mandate (3/7). If we consider that criteria (b) may easily be met by huge numbers of individuals due to its broad nature, the threshold for triggering the presumption is effectively reduced to 1/4. This low threshold will inevitably capture a large number of genuinely self-employed workers who would have to undergo unnecessary and costly administrative and court proceedings to demonstrate their independence.

Additional measures relating to presumption and rebuttal

The requirement for labour authorities to conduct inspections where misclassification has been determined in national law remains in the text (Article 7.1 (c)), which will place significant and unfounded burdens on labour authorities, which should be free to take enforcement decisions that suit the national context. Moreover, there is no clarification that the application of the presumption can be suspended, which will cause further legal uncertainty.

Chapter 3 and algorithmic management provisions

The provisions on algorithmic management are inconsistent with GDPR and the AI Act and

have been subject to very little scrutiny. The text proposed by the Spanish Presidency in December includes changes to these provisions which have not been examined at all and should be thoroughly assessed.

1. Scope of systems included The definition of automated-decision making risks capturing any electronic system in use by companies. In addition, wording proposed by the Spanish Presidency in December further broadens the scope of systems included. For example, Article 10(1a) requires providing information also “when such systems support or take decisions not affecting persons performing platform work in a significant manner” and Article 8(3) “...Article shall also apply to digital labour platforms where they use automated systems supporting or taking decisions that affect persons performing platform work in any manner.” Similar, overly broad language regarding ‘any decision’ and ‘any manner’ can also be found in Articles 12 and 13, expanding their scope to be practically limitless and thus very impractical both in terms of compliance and in terms of supervision and enforcement.

2. Prohibitions on processing of personal data: Platforms should be in a position to process personal data where obligated to by law or where it is in the public interest. The prohibitions on processing of personal data, while well intentioned, will have negative consequences on platforms ability to cooperate with law enforcement and risk complicating compliance with existing national and Union laws.

Delivery Platforms Europe Remarks on ST 5510/24

This new proposal by the Belgian Presidency brings no real improvement compared to ST 5133/24 and lacks the legal certainty offered by the General Approach, and even of the Commission’s 2021 initial proposal, especially with regards to Chapter III. The new version of the text undermines the position of the Council and does not constitute a solid basis to resume negotiations with the EU Parliament that will request further concessions. This text will lead to huge numbers of unnecessary proceedings and significantly increase the risk of reclassification of hundreds of thousands of individuals legally self-employed under national law across Europe.

Criteria/Indicators

● Indicator (b): Indicator (b) has been amended, but the proposed amendment is cosmetic and fails to bring more clarity to the scope of the specific actions covered by the indicator. On the contrary, the wording introduced in recital (32) raises more questions:

○ What does it mean to assess or regularly take stock of the work performance or work progress?

○ What does it mean to verify the quality of the results of the work of persons performing platform work? If a platform contacts a courier following a complaint from a consumer to verify if an order has been received, would this be considered as verification of the quality of the results?

○ Recital (32) considers location tracking as an indicator of employment, except in the specific case of matching. However, location tracking is inherent to the functioning of platforms, also beyond matching and is no indication of an employment relationship. It is clear that this wording is designed to apply automatically to digital platforms, thus triggering indicator (b) in basically all location-based services.

● Low threshold to trigger the presumption: The threshold (2/5) remains unchanged. This constitutes a significant deviation from the Council’s General Approach (3/7). Combined with unclear/broad criteria, it would significantly increase the risk of reclassification of genuinely self-employed. Overall, the approach explicitly described in the cover letter, where there are intentionally broad indicators in addition to more specific indicators of employment, is flawed. The purpose of the presumption and the threshold is to focus on the most likely cases of bogus self-employment. Broad and non-employment specific indicators go directly against this approach and only create more uncertainty and need for further interpretation, which risks more cases that will be disputed.

● Indicators of employment: The Belgian Presidency notes that indicators (c), (d) and (e) are inspired by the Yodel order of the CJEU and that indicators (a) and (b) are ‘broad’. It is important to recall that the indicators were intended to indicate an employment relationship but at present indicators (a) and (b) are more akin to indicators of a platform business model. They should be reviewed to ensure that they capture behaviour

indicative of employment or they, inevitably, will capture individuals that are not employees.

● Indicators vs. Criteria: The proposal maintains ‘indicators’ over ‘criteria’. The Parliament’s Rapporteur stated clearly in December that, while criteria are linked to providing evidence, only ‘hints’ are needed to meet indicators. If indicators are not replaced by criteria before negotiations with the Parliament resume, the foundational principle of assessment of the facts of an employment relationship will be undermined.

Inspection of platforms after a successful reclassification case

The requirement for labour authorities to conduct inspections where misclassification has been determined in national law remains in the text (Article 7.1 (c)) and is largely unchanged. The addition ‘where appropriate’ does not adequately address the fact that it is an excessive interference in national processes and would result in significant burdens on competent authorities. The wording from the General Approach ((c) in line with national law or practice, develop guidance for competent national authorities to proactively target and pursue non-compliant digital labour platforms;) already included significant guidance from the EU to national authorities and should be reintroduced as such.

Additional remarks on recitals

● Recital 35 is very unclear and partially contradicts the mere principle of the rebuttable presumption. The first paragraph describes the relationship between a digital labor platform and people performing platform work, outlining that this relationship is employment in case digital labor platforms fail to prove otherwise. While mentioning the rebuttal mechanism, the recital fails to recognize that the presumption should be based on a clear assessment of facts.

Chapter 3 and algorithmic management provisions

No change has been made to Chapter 3. This chapter continues to receive no attention, while it contains problematic provisions and contradicts existing and upcoming EU laws such as GDPR and the AI Act.

Our specific concerns remain unchanged: ● Scope of systems: The definition of automated-decision making risks capturing any

electronic system in use by companies. The scope has been further broadened by the Spanish Presidency, without having received the approval of Member States since. More specifically, Article 10(1a) would require platforms to provide information on huge numbers of systems and decisions because (a) extends it to systems which support

rather than take decisions and to ones affecting people in a non-significant manner. Providing information on all systems regardless of their significance to people performing platform work is simply disproportionate.

● Prohibitions on processing of personal data: Platforms should be in a position to process personal data where obligated to by law or where it is in the public interest. The prohibitions on processing of personal data, while well intentioned, will have negative consequences on platforms ability to cooperate with law enforcement and risk complicating compliance with existing national and Union laws. With the GDPR entering its mandated review, extensive changes should be avoided at this time. In general, there has been a move to narrow the grounds for data processing with consent emerging as the primary justification. If rushed into, the new prohibitions combined with other developments with the GDPR result in too narrow a space for platforms to function.

● Limits to consent: Recital 40 limits the use of consent as a valid means to process personal data. While this is largely in line with the interpretation of authorities and courts, it provides no exceptions. Facial recognition, used to fight illegal substitution, generally relies on consent. Recital 42 expressly permits this form of verification but Recital 40 would inadvertently prohibit it.

Delivery Platforms Europe Remarks on 6289/24

The Belgian Presidency is seeking approval from Member States on a new provisional agreement found with the Commission and Parliament last Thursday.

This provisional agreement is close to a copy-paste of the text which was proposed to COREPER I on 6 February and which did not secure a qualified majority. While almost no changes have been made to address the concerns raised by the Council last week, there are changes made which presumably seek to accommodate the Parliament’s views and they are in some instances concerning.

Overall, after more than two years of negotiations, the sudden change of approach introducing a rebuttable labor presumption, but leaving it up to Member States to define the presumption and rebuttal, is problematic and disappointing. It will create legal uncertainty and fails to achieve the goals – including harmonisation across the bloc – the Directive set out to address.

We urge Member States not to give up on shaping a clear and legally sound Directive which delivers on its promises to improve working conditions in platform work and ensure the sustainable development of the digital platform economy. Getting it right is more important than getting a deal at all costs.

Beyond the light changes that have been made, the proposal on its own remains highly problematic. The simplistic approach to sweep controversial provisions (criteria wording, number, threshold) under the carpet to finalise the Directive as soon as possible may sound appealing, but effectively introduces great legal uncertainty.

It raises the question of the need for an EU directive: after more than two years of trying to define the presumption and rebuttal parameters at EU level, the approach to leave it up to Member States not only to enforce the Directive, but also to define most of its provisions casts doubts on the legitimacy and credibility of the Directive. Such an approach could even contradict the principle of subsidiarity anchored in the EU treaty. It could also create a bad precedent in EU law making by enacting a EU regulation in a shared competence area which ultimately admits that the topic should be a national prerogative.

It would provide no EU harmonisation: A presumption of employment based on nationally defined criteria, plus a rebuttal based on national definitions of employment would offer no EU-wide harmonisation. In launching this proposal, the European Commision said “A common set of EU rules will provide increased legal certainty, therefore enabling digital labour platforms to benefit fully from the economic potential of the Single Market and a level playing field.” This goal and intention would be entirely defeated by this approach.

It shifts the burden to Member States: after more than two years of negotiations, the proposed approach would simply shift the responsibility to Member States to fix what EU negotiators have been failing to address so far. It would come at an unnecessary political and administrative cost, as most Member States have already regulated platform work.

The proposed agreement continues to raise significant legal concerns.

This new proposal fails to address the concerns raised by Member States.

On February 6, the Council did not sign off on the Belgian proposal for a revised mandate making it mandatory for Member States to introduce a presumption of employment in platform work, but leaving it up to them to define the presumption and rebuttal parameters. While still deciding to further negotiate with the Parliament, the Belgian Presidency committed to address the concerns from Member States.

However, the provisional agreement does not answer recent concerns: ● Definition of “facts”: Art. 5 states that “the contractual relationship between a digital

labour platform and a person performing platform work through that platform shall be legally presumed to be an employment relationship when facts indicating control and direction, according to national law, collective agreements or practice in force in the Member States and with consideration to the case-law of the Court of Justice, are found” remains very unclear and has not been further clarified in the provisions, nor in the recitals. This could cause great uncertainty as, theoretically, it could mean that anything could be used as an indicator of employment, for example the sole “fact” that a person uses a digital labor platform to perform platform work.

● Case-by-case application: it continues not to be specified that the presumption should be assessed at an individual level. Not introducing such a provision would leave much room for interpretation and increase the risks of collective presumption.

● Compliance with national regulations, including collective bargaining agreements: the proposal fails to clarify that compliance with national regulations, including CBAs, should not be considered as a “fact” when assessing the presumption. A clarification (former recital 24a) would be very welcome to give more legal clarity and certainty to the industry and national authorities. Such a derogation could help platform workers negotiate agreements, given CBAs would then provide a degree of clarity and certainty amidst all the lack thereof.

● Implied EU Criteria of the use of algorithms: Article 4 and recital 31 contradict the new Article 5, as “the use of automated monitoring or decision-making in the organisation of platform work”, could be understood to be presented as a criterion/indicator of an employment relationship. This goes beyond Article 5 which refers to national legislation.

● Commission’s role during transposition: Given the margin that Member States will have in defining the process and criteria, the role of the Commission as defined in article 34, paragraph 3, in sharing best practices on the implementation of the legal presumption, needs to be clearly defined as consulting and not as defining what an ‘effective’ presumption should be.

New problematic amendments have been made: ● Definition of an “effective legal presumption”: while recital (32) aims at clarifying what an

“effective legal presumption” is, it introduces greater uncertainty on how a presumption should work. By stating that an effective legal presumption “requires that national law makes it effectively easy for the person performing platform work to benefit from the presumption”, it revives concerns on the risk of automatic presumption; it should be added that an effective legal presumption should be based on an assessment of facts and that that process in itself does not constitute a burdensome process.

No further changes have been made to Chapter 3: ● This Chapter continues to include provisions directly in contradiction with GDPR and -

the now approved - AI Act. This will create problems during the transposition phase that

will force Member States to enact domestic laws contradicting EU regulations. We continue to urge Member States to review this chapter to align it with existing and existing and upcoming EU legislation.

● Overall, with the changes made to Chapter 3, many of the provisions have become impossible to comply with and to enforce. It is unclear why the original focus on material decisions and relevant features of algorithmic systems has been expanded to essentially all actions and systems a digital labour platform might take or have.

If approved and implemented as such, it offers little value.

While the political urge to finalise the Directive before the EU elections can be understood, it should not be the goal at the expense of persons performing platform work and the digital platform industry.

Past years have proven that regulating platform work is a complex topic that requires more than a simple solution. Giving up now on proposing a legally clear and solid EU Directive, for the sake of the political urgency would:

● Fail to deliver on the original ambition to improve working conditions in platform work and harmonise regulations.

● Fail to address the concerns of persons performing platform work whose majority has made it clear that they want to remain self-employed, while benefiting from more protection.

● Fail to provide a legally clear and harmonized framework that is necessary to ensure the sustainable growth of digital labor platforms.

● Create significant political, legal and administrative hurdles for Member States.

Mr Tiit Riisalo Minister for Economic Affairs and Information Technology Suur-Ameerika 1 10122 Tallinn Estonia

Mrs Victoria de Posson Secretary General

European Tech Alliance Square de Meeûs 35

1000 Brussels Belgium

Brussels, 14 February 2024

Dear Minister Riisalo,

I am contacting you to follow-up on the previous leer sent on 18 December 2023 on behalf of the European Tech Alliance (EUTA), which represents leading European tech companies providing innovative and trustworthy services or products to 500 million users. As companies born and bred in Europe, for whom the EU is a crucial market, we have deep commitment to European citizens and values and aim to boost Europe’s tech competitiveness.

When it comes to the Directive on improving the working conditions in platform work, the EUTA’s aim is to find adequate conditions both for European online services to flourish and for platform workers to have fair working conditions. We regret to note that the preliminary agreement on the file does not achieve this balance and objective. In addition, it is a significant paradigm shift from any approach examined in the past 2 years.

The EUTA urges Estonia to reject the proposed trilogue agreement when brought to COREPER this week. We invite the Council to reopen the discussion with the European Parliament when appropriate and work towards a framework that provides legal certainty and gives independent platform workers the necessary protections they deserve.

We are concerned that the debate focused on a few well-known companies and didn’t acknowledge the impact on European businesses. And if the Directive is approved as-is, the same divisive debate will be generated without any EU harmonisation, puing into question the value of having a Directive at all.

There is no clarity on how the Directive should be enforced, or how companies could comply with its provisions. Most of the Directive’s provisions would still need to be defined by local or national courts, increasing litigation rather than clarity.

The provisional agreement does away with defining common criteria, in favour of an approach that will accentuate fragmentation in the Single Market and level Member States unsure of what it is they need to transpose or implement.

The proposed trilogue agreement undermines the principle of subsidiarity as it does not include any derogations that could protect existing processes, clearly infringing on national competences. It is not clear if complying with national law, collective agreements, or social security rules can trigger the criteria.

Lastly, it includes unnecessarily broad limitations to the use of algorithms in the workplace, which would be difficult to comply with or enforce given their practically limitless scope. Here again, the more balanced approach put forward by the European Commission at the beginning of the process has been thoroughly scrapped.

The European Tech Alliance | Square de Meeûs 35 | 1000 Brussels, Belgium | [email protected] 1

Considering the potential consequences for self-employed workers, consumers and platforms in Europe, the EUTA therefore urges you to reject the proposed agreement on Friday 16 February, and work when appropriate towards a framework that provides legal certainty and gives independent platform workers the necessary protections they deserve.

We thank you for taking our concerns into consideration. Do not hesitate to let us know if you need any additional information from us.

Kind regards,

Victoria de Posson Secretary General of the European Tech Alliance

About the European Tech Alliance   EUTA represents leading European tech companies that provide innovative products and

services to 500 million users1. Our 30 EUTA member companies from 14 European countries are popular and have earned the trust of consumers. As companies born and bred in Europe, for whom the EU is a crucial market, we have a deep commitment to European citizens and values.

With the right conditions, our companies can strengthen Europe’s resilience and technological autonomy, protect and empower users online, and promote Europe’s values of transparency,

rule of law and innovation to the rest of the world.

Our members  

Visit us at www.eutechalliance.eu.

1 It reflects users, consumers and business customers from EUTA member companies, per year. It includes overlaps but illustrates the reach and impact of our services.

The European Tech Alliance | Square de Meeûs 35 | 1000 Brussels, Belgium | [email protected] 2

Call to EU Member States: reject the Spanish agreement deal on the Platform Worker Rights Directive

Ahead of the Committee of Permanent Representatives (Coreper) meeting on 20th December, and on behalf of Freelance Movement and freelancers across the European Union, we call on you to reject the Spanish agreement on the Platform Worker Rights Directive.

The proposal is a massive blow for entrepreneurship and open talent in Europe. The presumption of employment as it stands will force freelancers to be reclassified and pushed into oppressive 9 to 5 employment structures that they do not want, and have actively taken steps to reject. This law as it stands will effectively take away the very flexibility and freedom that they actively desire as to when, where and how they work.

This message has been delivered loud and clear via our petition, which is backed by over 6,500 freelancers from across Europe, who want to see their livelihoods protected (the petition can be accessed at https://chng.it/jhxKnNpNdY)

The Directive is aimed at ride hailing and food delivery couriers, but freelancing today covers a whole host of sectors and professionals from IT experts, lawyers and health care workers to architects, artists and musicians. Moreover, European Commission figures state that the number of people working through platforms will grow from 28 million in 2021 to a projected 43 million in 2025. Only a tiny percentage of this figure will be working in the ride hailing and food delivery sectors. A huge number of freelancers will therefore be dragged into the scope of the Directive against their will.

Furthermore, the Spanish agreement will create more legal uncertainty. Putting in place five “indicators” to trigger a presumption of employment that are non-exhaustive and therefore useless is a backwards step. In the press conference following the Spanish deal, the European Parliament's rapporteur Elisabetta Gualmini MEP even said that “hints” would be enough to trigger the indicators, which need less evidence than criteria.

In sum, Europe’s open talent deserves better and we call upon you to reject the Spanish agreement in its entirety.

About Freelance Movement

Freelance Movement is the largest stakeholder initiative in Europe focused on the future of work, with 49 members from across the continent. We understand the role that digitalisation is playing in the future of work and how it is creating opportunities, facilitating growth and driving the economy.

Our role is to:

 Educate on, explain and quantify freelancing and the future of work.  Identify challenges and barriers, then with decision-makers and other stakeholders work

towards creating policy and regulatory solutions.  Provide exposure and business opportunities within our future of work ecosystem - as well as a

platform - for members and partners

www.freelance-movement.org

Public Letter.

From Repartidores Unidos Movement, created in 2020 to defend and improve the collaborative model

with self-employed workers in the last mile delivery sector, we have been following with interest and

concern the ongoing debates on the EuropeanDirective onDigital PlatformWork.

The origin of our organisation is based on the defence, improvement and consolidation of our rights when

working on Digital Platforms. As delivery workers who use these platforms, we believe it is crucial to be

able to express our perspective regarding the proposed reform, as its regulations will directly affect us.

With this in mind,we consider that our voice should be taken into account.

From our point of view, we believe that the Platform Work Directive runs the risk of repeating the

mistakes we have seen in Spain after the experience with the so-called “Rider Law”: the lack of

participation and listening to the majority of affected workers, the forced reclassification of delivery

workers as employees without evaluating other solutions, and the promotion of an unclear regulatory

framework that producesmore uncertainty than certainty. All of this is of great concern to us.

Considering that the Spanish "Rider Law", which is intended to be used as a reference, did not achieve its purpose and objectives at all, had even caused the opposite effect to what was expected, as it has been

the exit of platforms from the market leaving thousands of delivery workers without work as well as

significantly worsening the conditions of those who remain; we believe amodern, ambitious, realistic and

in-depth regulation of the sector is necessary, therefore it is crucial that the European Guidelines are clear

in their criteria. We believe that this sector, like all those based on work on Digital Platforms, is here to

stay, hence we are aware that its real and effective regulation is urgent and cannot be postponed.

We believe that the solution to this situation is not another employment status, our experience has proven

that this approach has been totally ineffective in solving our real problems and concerns, on the contrary,

has deeply aggravated them. We believe that the solution is to ensure that our voice is heard and that our

experience and interest in participating in our future are taken into account, thus, our claim has always

been simple: to be able to choose how and when we work, reinforce our protections, and have information about what matters and affects us, all this within the framework ofmaintaining incredibly open and flexible jobs, which is one of themain reasons whymost of us choose to use Digital Platforms for

work.

With this in mind, we urge the institutions of the European Union and the Member States to listen to us,

not to take hasty measures, let alone measures that are contrary to a significant improvement in the

sector, especially for the conditions of us, the workers of Digital Platforms.

Gustavo Gaviria,

Repartidores Unidos Spokesperson

RepartidoresUnidos.org

Suur-Ameerika 1 / 10122 Tallinn / 625 6342 / [email protected] / www.mkm.ee

Registrikood 70003158

Bram Vranken

Corporate Europe Observatory

[email protected]

Teie 23.02.2024

Meie 28.03.2024 nr 6-2/545-3

Vastuskiri Euroopa Liidu platvormitöötajate

direktiivi eelnõu kohta

Alates 01.01.2023 on Majandus- ja Kommunikatsiooniministeeriumi esindajad Euroopa Liidu platvormitöö direktiivi eelnõu teemadel kohtunud järgmistel kuupäevadel järgmiste huvigruppidega:

 26.09.2023. Kohtumine Wolt esindajaga Robert Torvelainen, EL avalike suhete juht

Baltikumist. Ministeeriumist osalesid kohtumisel töösuhete ja töökeskkonna osakonnast

Liis Tõnismaa ja Maria-Helena Rahumets ning ettevõtluse osakonnast Marie Allikmaa,

Maarja Mere, Kristina Jerjomina ja Aleksandr Michelson.

 06.06.2023. Kohtumine Bolt esindajatega Henri Arras ja asepresident Eirini Zafeiratou.

Ministeeriumist osalesid kohtumisel tööala asekantsler Ulla Saar, majandusarengu

asekantsler Sille Kraam, ettevõtluse osakonnast Gertrud Luhaoja-Sobak ja Maarja Mere. Alates 01.01.2023 on huvigrupid edastanud Majandus- ja Kommunikatsiooniministeeriumile platvormitöö direktiivi eelnõu teemadel järgmist sisendit:

 Bolt kirjalikud ettepanekud ja kommentaarid platvormitöö direktiivi tekstile: 30.01.2023,

24.03.2023, 26.10.2023, 08.12.2023, 05.02.2024 (lisatud manusena).

 Delivery Platforms Europe kirjalikud ettepanekud ja kommentaarid platvormitöö direktiivi

tekstile: 14.12.2023, 15.01.2024, 18.01.2024, 22.01.2024, 12.02.2024 (lisatud manusena).

 Wolt kirjalikud ettepanekud ja kommentaarid platvormitöö direktiivi tekstile: 15.12.2023

(lisatud manusena).

 Freelance Movement kirjalikud ettepanekud ja kommentaarid platvormitöö direktiivi

tekstile: 16.12.2023 (lisatud manusena).

 Repartidores Unidos kirjalikud ettepanekud ja kommentaarid platvormitöö direktiivi

tekstile: 20.12.2023 (lisatud manusena).

 Bolt kirjalikud ettepanekud, selgitused ja õiguslikud analüüsid direktiivi sisule ja valitsuse

senistele seisukohtadele: 15.02.2024 (lisatud manusena). Kirjade saamisele eelnesid

samasisulised telefonikõned. Samuti lisame manusena 30.06.2023 ja 12.06.2023 kirjavahetuse, millest nähtub, et oleme direktiivi menetlusest huvitatud huvigruppe hoidnud menetluse üldise käiguga kursis.

2 (2)

Loodame, et see materjal annab teile piisava ülevaate toimunud kohtumistest ja dokumentidest.

Lugupidamisega

(allkirjastatud digitaalselt)

Ahti Kuningas

kantsler

Lisad:

1. Bolt kirjalikud ettepanekud ja kommentaarid platvormitöö direktiivi tekstile: 30.01.2023,

24.03.2023, 26.10.2023, 08.12.2023, 05.02.2024;

2. Delivery Platforms Europe kirjalikud ettepanekud ja kommentaarid platvormitöö

direktiivi tekstile: 14.12.2023, 15.01.2024, 18.01.2024, 22.01.2024, 12.02.2024;

3. Wolt kirjalikud ettepanekud ja kommentaarid platvormitöö direktiivi tekstile:

15.12.2023;

4. Freelance Movement kirjalikud ettepanekud ja kommentaarid platvormitöö direktiivi

tekstile: 16.12.2023;

5. Repartidores Unidos kirjalikud ettepanekud ja kommentaarid platvormitöö direktiivi

tekstile: 20.12.2023;

6. Bolt kirjalikud ettepanekud, selgitused ja õiguslikud analüüsid direktiivi sisule ja

valitsuse senistele seisukohtadele: 15.02.2024.

Evelin Tõnisson

625 6353 [email protected]

Wolt Pohjoinen Rautatiekatu 21

00100 Helsinki Finland

Miki Kuusi Co-Founder & CEO, Wolt

15 December 2023

Minister Riisalo

I am writing to you on behalf of Wolt and our self-employed courier partners to express our concerns about the Spanish agreement on the Platform Work Directive negotiated with the European Parliament in the trialogues (announced 13 December). The Spanish agreement would create greater legal uncertainty, put at risk the flexible way millions of genuinely self-employed platform workers want to work in Europe, and fail to achieve the objective of the Directive, which is to improve the working conditions of platform workers regardless of their status. We believe the Council should not rush to accept such a text, but rather take more time to develop the right future-proof framework for platform work.

Our courier partners have a clear opinion on how to create the right frameworks but have had a hard time getting their voices heard by policymakers. In a recent 3rd party survey commissioned by Wolt,1 almost 7000 courier partners from across 15 EU Member States voiced their concerns about their future:

● 82% voice that the Platform Work Directive should not change anyone’s status from self-employed/contractor to employed against their will;

● 78% would consider stopping delivering if the law forced them into employment without flexibility (i.e. the ability to choose their own hours, tasks, vehicle or routes);

● 71% choose to work as a Wolt courier partner because they prefer this over any other work opportunities.

● Only 40% feel like their opinions are heard by EU policymakers, and even less - only 34% - feel like local policymakers listen;

This message is not new. Survey upon survey has shown the preference of the platform workers themselves - a view that has been ignored by the European Parliament and the Spanish preliminary agreement. Based on what our partners want, our vision for the future of platform work is to combine the freedom and flexibility our courier partners want with the protections they deserve.

We do not believe that forcing courier partners into rigid employment relationships against their will is the only or right way to ensure their access to better protections. Instead, we believe the combination of allowing collective bargaining for self-employed and allowing platforms to offer better benefits and protections without facing legal classifications risks would create a framework in which our self-employed couriers could continue to work as flexibly as today, but without having to accept weaker social protections. Wolt and many other platforms are already engaging in collective bargaining negotiations on the basis of the EU collective bargaining guidance for self-employed platform workers adopted in 2022, and we fear those efforts would be significantly complicated if the Spanish agreement would be approved by the Council.

Future proof rules matter – also for our company. After nine years since starting in Helsinki, Finland, Wolt is

1 Wolt blog on the Courier Partner survey conducted by Taloustutkimus in 2/2023 https://blog.wolt.com/hq/2023/05/09/pan-european-study-shows-platform-workers-know-what-they-want-but-are -not-being-heard/

Wolt Pohjoinen Rautatiekatu 21

00100 Helsinki Finland

today present in 17 EU Member States and altogether in 25 markets globally. We are proud to employ over 10,000 employees in our offices, and partner with over 200,000 courier partners and 130,000 brick-and-mortar shops and restaurants. The rules being decided now should ensure we and our sector have more clarity and legal certainty, allowing us to create even more economic opportunity going forward. The clearer the rules, the easier it is to have a level playing field. Clear rules also mean administrative resources are best utilized.

The key challenge with the provisional agreement is the presumption of employment. The Spanish agreement would essentially capture nearly all services provided to or through online platforms as presumed employment, which goes against the Directive’s stated objective of addressing bogus self-employment. As the EU Commission estimates that some 20 million genuinely self-employed Europeans provide services through or to online platforms, the Spanish agreement would create uncertainty for these professionals and a significant administrative burden for each country - burden that would be spent on cases where closer examination against national criteria and definition of employment would not result in reclassification. The overly broad criteria would likely capture any traditionally freelance-based sectors such as taxis and potentially many others such as IT services and design, to name a few.

Based on these views, we hope the preliminary agreement is rejected next week and more focus is put into ensuring that the final text takes into account the following:

1. In order for the presumption of employment to work, it needs clear criteria. The criteria should lead to further clarity, it should not capture genuinely self-employed service providers, and it should not lead to further fragmentation in the EU.

2. The Directive should acknowledge the important role of collective bargaining for self-employed people in the platform economy. As CBA processes are starting across Europe, the Directive should clearly recognize their significance in providing for better protections for self-employed and state that respecting agreements between platforms and workers do not trigger the presumption criteria and that platforms are allowed to offer protections and benefits to their self-employed partners.

Beyond these key views, we believe there is still a lot of technical work to be done to ensure that the final proposal is clear, practical and future-proof.

Taking more time to get this right doesn’t mean that platform workers are left without improvements to their working conditions in the meantime. Negotiations for collective agreements, new platform features, and ongoing dialogue with our partners means that we are hard at work every day to make platform work better.

Sincerely,

Miki Kuusi

Co-founder & CEO Wolt

Suur-Ameerika 1 / 10122 Tallinn / 625 6342 / [email protected] / www.mkm.ee

Registrikood 70003158

Bram Vranken

Corporate Europe Observatory

[email protected]

Teie 23.02.2024

Meie 28.03.2024 nr 6-2/545-3

Vastuskiri Euroopa Liidu platvormitöötajate

direktiivi eelnõu kohta

Alates 01.01.2023 on Majandus- ja Kommunikatsiooniministeeriumi esindajad Euroopa Liidu platvormitöö direktiivi eelnõu teemadel kohtunud järgmistel kuupäevadel järgmiste huvigruppidega:

 26.09.2023. Kohtumine Wolt esindajaga Robert Torvelainen, EL avalike suhete juht

Baltikumist. Ministeeriumist osalesid kohtumisel töösuhete ja töökeskkonna osakonnast

Liis Tõnismaa ja Maria-Helena Rahumets ning ettevõtluse osakonnast Marie Allikmaa,

Maarja Mere, Kristina Jerjomina ja Aleksandr Michelson.

 06.06.2023. Kohtumine Bolt esindajatega Henri Arras ja asepresident Eirini Zafeiratou.

Ministeeriumist osalesid kohtumisel tööala asekantsler Ulla Saar, majandusarengu

asekantsler Sille Kraam, ettevõtluse osakonnast Gertrud Luhaoja-Sobak ja Maarja Mere. Alates 01.01.2023 on huvigrupid edastanud Majandus- ja Kommunikatsiooniministeeriumile platvormitöö direktiivi eelnõu teemadel järgmist sisendit:

 Bolt kirjalikud ettepanekud ja kommentaarid platvormitöö direktiivi tekstile: 30.01.2023,

24.03.2023, 26.10.2023, 08.12.2023, 05.02.2024 (lisatud manusena).

 Delivery Platforms Europe kirjalikud ettepanekud ja kommentaarid platvormitöö direktiivi

tekstile: 14.12.2023, 15.01.2024, 18.01.2024, 22.01.2024, 12.02.2024 (lisatud manusena).

 Wolt kirjalikud ettepanekud ja kommentaarid platvormitöö direktiivi tekstile: 15.12.2023

(lisatud manusena).

 Freelance Movement kirjalikud ettepanekud ja kommentaarid platvormitöö direktiivi

tekstile: 16.12.2023 (lisatud manusena).

 Repartidores Unidos kirjalikud ettepanekud ja kommentaarid platvormitöö direktiivi

tekstile: 20.12.2023 (lisatud manusena).

 Bolt kirjalikud ettepanekud, selgitused ja õiguslikud analüüsid direktiivi sisule ja valitsuse

senistele seisukohtadele: 15.02.2024 (lisatud manusena). Kirjade saamisele eelnesid

samasisulised telefonikõned. Samuti lisame manusena 30.06.2023 ja 12.06.2023 kirjavahetuse, millest nähtub, et oleme direktiivi menetlusest huvitatud huvigruppe hoidnud menetluse üldise käiguga kursis.

2 (2)

Loodame, et see materjal annab teile piisava ülevaate toimunud kohtumistest ja dokumentidest.

Lugupidamisega

(allkirjastatud digitaalselt)

Ahti Kuningas

kantsler

Lisad:

1. Bolt kirjalikud ettepanekud ja kommentaarid platvormitöö direktiivi tekstile: 30.01.2023,

24.03.2023, 26.10.2023, 08.12.2023, 05.02.2024;

2. Delivery Platforms Europe kirjalikud ettepanekud ja kommentaarid platvormitöö

direktiivi tekstile: 14.12.2023, 15.01.2024, 18.01.2024, 22.01.2024, 12.02.2024;

3. Wolt kirjalikud ettepanekud ja kommentaarid platvormitöö direktiivi tekstile:

15.12.2023;

4. Freelance Movement kirjalikud ettepanekud ja kommentaarid platvormitöö direktiivi

tekstile: 16.12.2023;

5. Repartidores Unidos kirjalikud ettepanekud ja kommentaarid platvormitöö direktiivi

tekstile: 20.12.2023;

6. Bolt kirjalikud ettepanekud, selgitused ja õiguslikud analüüsid direktiivi sisule ja

valitsuse senistele seisukohtadele: 15.02.2024.

Evelin Tõnisson

625 6353 [email protected]