Riders, new EU (watered-down) agreement to stop fictitious self-employment

Brussels – The second time is easier: After the mid-December tug-of-war—with an agreement found and then blown up at the last moment—between the European Parliament and member states on the final content of the EU directive to protect the rights of the more than 28 million digital workers in the EU, today (Feb. 8) came a new white smoke. The presumption of employment is still present but accompanied by many more prerogatives for national governments.

The compromise presented by the Belgian presidency of the EU Council worked, although there is nothing to prevent a stalemate again at the last stage of the process—that of formal approval by the 27 countries. But for the 12 member countries, including Italy and France, which had opposed the first agreement, some progress has been made. The most controversial element that came out of the first trialogue was the five indicators chosen, at least two of which were mandatory, for the presumption of an employment relationship to be triggered: this constraint is no longer there.

The new rules maintain the presumption of employment, but it will be triggered “when facts indicating control and direction occur, according to national law and applicable collective agreements.” No harmonized criteria among member countries, but an obligation for national governments to “establish a relative legal presumption of employment at the national level.”

This would be the formula found to correct the power imbalance between the giants of the gig economy and the 5.5 million digital platform workers who are misclassified as self-employed throughout the EU, according to EU estimates. Workers who suffer, as a result, the denial of labour and social rights: minimum wage (where it exists), collective bargaining, working hours, health and work accident protection, paid vacations, unemployment, sickness and old age pension.

The principle of reversal of the burden of proof is confirmed: when a worker, his or her representatives, or the competent authorities assert the presumption of employment, it will be up to the employers, the platforms,  to gather evidence to prove that a worker is truly self-employed. Not the other way around, as has been the case until now.

The rapporteur for the Euro Chamber, Elisabetta Gualmini (Pd), at the trialogue with the EU Council

In addition to shedding light on the phenomenon of fictitious self-employment, the new rules should allow digital workers and their representatives access to information about how algorithms work and how their behaviour influences decisions made by automated systems. Decisions that, particularly regarding account dismissals or suspensions, cannot be taken without human oversight. Greater protections also on the handling of workers’ personal data by platforms, which will not be allowed to go beyond what is strictly related to work life.

According to the proposal’s rapporteur for the European Parliament, Elisabetta Gualmini (PD), in the end, this second agreement still ensures a “balanced text that protects workers, good employers, and provides for a European level playing field.” It was therefore worth it, rather than starting the process all over again. But “now we hope that member states will not turn their backs on 30 million of the most vulnerable workers in Europe and the world,” warned Gualmini. Workers who the EU estimates will be 43 million by 2025.