Changes from plenary report to adopted text

RemovedRecital 3 a (new): (3a) Principle No 7 of the Pillar provides that workers have the right to be informed in writing at the start of employment about their rights and obligations resulting from the employment relationship, that prior to any dismissal, workers have the right to be informed of the reasons and be granted a reasonable period of notice and the right to access to effective and impartial dispute resolution and, in the case of unjustified dismissal, a right to redress, including adequate compensation. Principle No 10 of the Pillar provides that workers have the right to a high level of protection of their health and safety at work and the right to have their personal data protected in the employment context. Principle No 12 of the Pillar provides that regardless of the type and duration of their employment relationship, workers, and, under comparable conditions, the self-employed, have the right to adequate social protection.

RemovedRecital 4: (4) Digitalisation is changing the world of work, improving productivity and enhancing flexibility. Innovation in digital tools can contribute to growth in times of crisis and recovery. New forms of digital interaction and new technologies in the world of work, including the trend towards remote working in many sectors, if well-regulated and implemented, could create opportunities for access to decent and quality jobs for people who traditionally lacked such access, including persons with disabilities. However, digitalisation also poses risks for employment and working conditions, for the health and safety of workers and for the protection of their fundamental rights, including the right to privacy, as well as for the effective implementation of applicable national labour and tax law thereby also putting the solidarity based social protection system for current and future generations under pressure. Algorithm-based technologies, including automated monitoring and decision-making systems, have enabled the emergence and growth of digital labour platforms but can produce power imbalances and opacity about decision-making, as well as technology-enabled surveillance which could exacerbate discriminatory practices and entail risks for privacy, workers´ health and safety and human dignity and may lead to adverse consequences for working conditions and the exploitation ofworkers.

RemovedRecital 5: (5) Platform work is performed by individuals through the digital infrastructure of digital labour platforms that provide a service to their customers. It is provided, at least in part, at a distance through electronic means, such as a website or a mobile application, which can even be invisible to the client because it is integrated into the website used by the recipient of the service. It occurs in a wide variety of fields and is characterised by a high level of heterogeneity in the types of digital labour platform, the sectors covered and activities carried out as well as in the profiles of individuals performing platform work. By means of the algorithms and artificial intelligence, the digital labour platforms supervise, monitor and evaluate, to a lesser or greater extent – depending on their business model – the performance of the work, its remuneration and the relationship between their customers and the persons performing the work as well as the persons themselves while performing work and, in some cases, also outside their working time, in breach of Regulation (EU) 2016/679 of the European Parliament and of the Council1a and national data protection law. Traditional regulated liberal professions are in principle free from supervision, direction and control from any other undertaking. Platform work is mostly performed exclusively online through electronic tools (‘online platform work’) or in a hybrid way combining an online communication process with a subsequent activ…

RemovedRecital 6: (6) Platform work can provide opportunities for employment and for accessing the labour market more easily, especially for vulnerable groups, gaining additional income through a secondary activity or enjoying some flexibility in the organisation of working time. Most persons performing platform work have another job or another source of income and tend to be low paid1a. Particular attention should be given to young people by ensuring that they enjoy the highest level of social protection when performing platform work. At the same time, platform work brings challenges, as it can result in the unpredictability of working hours and blur the boundaries between employment relationship and self-employed activity, and the responsibilities of employers and workers. Misclassification of the employment status has consequences for the persons affected, as it is to restrict access to existing labour and social rights. It can also lead to labour exploitation, unfair competition, in particular affecting SMEs , and an uneven playing field with respect to businesses that classify their workers correctly, and it has implications for Member States’ industrial relations systems, their tax base and the coverage and sustainability of their social protection systems. While such challenges are broader than platform work, they are particularly acute and pressing in the platform economy. / 1a Commission staff working document, Impact Assessment Report, Accompanying the Proposal for a Directive of the…

RemovedRecital 6 a (new): (6a) The labour and social protection legislation of most Member States is generally unprepared for the challenges of the digital world and, in particular, the digitalised labour market, which causes grave risks both to people who are engaged in digitally based work and to existing solidarity-based healthcare and social security models. If not tackled appropriately, those risks might jeopardise the European social model and the goals of the Pillar, whereas technological progress might also provide the solutions for adaptation of the European social model to the realities of the 21st century. Therefore, the proposed solutions should help protect the situation of persons performing platform work and improve their working conditions.

RemovedRecital 7: (7) Court cases in several Member States have shown the persistence of misclassification of the employment status in certain types of platform work, in particular in sectors where digital labour platforms exert a certain degree of direction or control over the remuneration and performance of work. While digital labour platforms frequently classify persons working through them as self-employed or ‘independent contractors’, many courts have found that the platforms exercise de facto direction and control over those persons, often integrating them in their main business activities and unilaterally determining the level of remuneration. Those courts have therefore reclassified purportedly self-employed persons as workers employed by the platforms. However, national case law has resulted in diverse outcomes and digital labour platforms have adapted their business model in various ways, thus increasing the lack of legal certainty over the employment status as well as hampering a level playing field both within the internal market and between digital labour platforms and traditional businesses.

RemovedRecital 8: (8) Automated monitoring and decision-making systems powered by algorithms increasingly replace functions that managers usually perform in businesses, such as allocating tasks, pricing of individual assignments and working time, giving instructions, evaluating the work performed, providing incentives or imposing sanctions. Digital labour platforms in particular use such algorithmic systems as a standard way of organising and managing platform work through their infrastructure. Persons performing platform work subject to such algorithmic management often do not have access to information on how the algorithms work, which personal data are being used and how their behaviour affects decisions taken by automated systems. Workers’ representatives, representatives of persons performing platform work, and labour inspectorates and competent supervisory authorities do not have access to this information either. Moreover, persons performing platform work often do not know the reasons for decisions taken or supported by automated systems and lack the possibility to obtain an explanation for those decisions, to discuss those decisions with a contact person or to contest them and to seek rectification and, where relevant, redress. Persons performing platform work and their representatives often do not receive timely information or the opportunity to discuss, to be effectively consulted, negotiate and to review the algorithmic systems that nonetheless have a direct impact on their working …

RemovedRecital 9: (9) When platforms operate in several Member States or across borders, it is often unclear where the platform work is performed and by whom, especially online based platform work. Also, national authorities do not have easy access to data on digital labour platforms, including the number of persons performing platform work, their employment status, and their working conditions. This complicates the enforcement of applicable national and European rules, including in respect of labour and tax law and social protection.

RemovedRecital 9 a (new): (9a) The number of platforms active in the Union increased from 463 in 2016 to 516 in March 2021. The platform economy in the Union increased almost fivefold during the same period, from an estimated EUR 3,4 billion in 2016 to about EUR 14 billion in 2020. The majority of activity of such platforms relates to taxi and food delivery services, both of which were strongly affected by the COVID-19 pandemic (- 35% and +125%, respectively). Platforms that have their origin outside the Union play an important role in the Union’s platform economy.

RemovedRecital 10: (10) A body of legal instruments provides for minimum standards in working conditions and labour rights across the Union. This includes in particular Directive (EU) 2019/1152 of the European Parliament and of the Council55 on transparent and predictable working conditions, Directive 2003/88/EC of the European Parliament and of the Council56 on working time, Directive 2008/104/EC of the European Parliament and of the Council57 on temporary agency work, and other specific instruments on aspects such as health and safety at work, pregnant workers, work-life balance, fixed-term work, part-time work, posting of workers, information and consultation of workers, among others. Those legal instruments have been interpreted by the Court of Justice of the European Union (Court of Justice) in particularly relevant case law, according to which ‘stand-by’ time, during which the worker's opportunities to carry out other activities are significantly restricted, is to be regarded as working time57a. The interpretation of the Court of Justice is particularly relevant for platform workers who spend 8,9 hours per week57b doing unpaid tasks, such as researching tasks, waiting for assignments, participating in contests to get assignments and reviewing work ads, which is not accounted for as working time when they are incorrectly classified as self-employed. While those instruments provide a level of protection to workers, they do not apply to genuinely self-employed persons. / 57a Judgement of the…

RemovedRecital 11: (11) Social protection is a solidarity-based safety net that is beneficial not only to the individual but also to society as a whole. Council Recommendation 2019/C 387/0158 on access to social protection for workers and the self-employed recommends Member States to take measures ensuring formal and effective coverage, adequacy and transparency of social protection schemes for all workers and self-employed. Member States currently have varying degrees of providing social protection to the self-employed. It is essential to ensure, and where necessary extend, access to social protection to persons performing platform work including for people transitioning from one status to another in order to ensure the portability of accumulated social rights and entitlements.

RemovedRecital 12: (12) Regulation (EU) 2016/679 of the European Parliament and of the Councilensures the protection of natural persons with regard to the processing of personal data, and in particular provides certain rights and obligations as well as safeguards concerning lawful, fair and transparent processing of personal data, including with regard to automated individual decision-making. Regulation (EU) 2019/1150 of the European Parliament and of the Council60 promotes fairness and transparency for ‘business users’ using online intermediation services provided by operators of online platforms. The European Commission has proposed further legislation laying down harmonised rules for providers and users of artificial intelligence systems61, which will apply without prejudice to the more specific rules set out in this Directive. / (deleted)

RemovedRecital 13: (13) While existing or proposed Union legal acts provide for certain general safeguards, challenges in platform work require some further specific measures. In order to adequately frame the development of platform work in a sustainable manner, it is necessary for the Union to set new minimum standards in working conditions to address the challenges arising from platform work and to protect platform workers’ rights. Platform workers and, where applicable, persons performing platform work should be provided with a number of minimum rights, the correct determination of their contractual status as well as fair and just working conditions, promoting transparency, fairness, accountability and non-discrimination, and preventing health and safety risks in algorithmic management, improving transparency in platform work, including in cross-border situations, and ensuring the right to bargain collectively in accordance with national law and practice. This should be done with a view to improving legal certainty, creating a level playing field between digital labour platforms and offline providers of services and supporting the sustainable growth of digital labour platforms in the Union. In order to achieve this, persons working via a digital labour platform should be correctly classified in relation to their contractual status in order to access the applicable national labour and social protection law.

RemovedRecital 14: (14) The Commission has undertaken a two-stage consultation of the social partners, in accordance with Article 154 of the Treaty on the Functioning of the European Union, on the improvement of working conditions in platform work. There was no agreement among the social partners to enter into negotiations with regard to those matters. It is, however, important to take action at Union level in this area by adapting the current legal framework to the emergence of platform work and of the use of automated monitoring and decision-making systems.

RemovedRecital 15: (15) In addition, the Commission held extensive exchanges with relevant stakeholders, including digital labour platforms, associations of persons performing platform work, the social partners, experts from academia, Member States and international organisations and representatives of civil society.

RemovedRecital 16: (16) This Directive should apply to persons performing platform work in the Union who have, or who based on an assessment of facts may be deemed to have, an employment contract or employment relationship as defined by the law, collective agreements or practice in force in each Member State, with consideration to the case-law of the Court of Justice. This should include situations where the employment status of the person performing platform work is not clear, so as to allow correct determination of that status. The provisions on algorithmic management which are related to the processing of personal data should also apply to genuinely self-employed persons and to other persons performing platform work in the Union who do not have an employment relationship.

RemovedRecital 17 a (new): (17a) Self-employed intermediary persons covered by Council Directive 86/653/EEC1a, who have continuing authority to negotiate the sale or the purchase of goods on behalf of another person or to negotiate and conclude such transactions on behalf of and in the name of that person, should not fall within the scope of this Directive, provided that a digital labour platform does not organise the work of commercial agents or intermediates between such commercial agents and their principals. / 1a Council Directive 86/653/EEC on the coordination of the laws of the Member States relating to self-employed commercial agents (OJ L 382, 31.12.1986, p.17).

RemovedRecital 17 b (new): (17b) 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, over the licensed taxi drivers, namely that, inter alia, the service provider does not set and collect the fare for the journey and does not have control over the quality of the vehicles or over the drivers and their performance of the work. Self-employed taxi drivers are usually free to choose how to generate their turnover due to the rights typically received with their license, such as the right to access clients freely by means of street-hailing, dedicated public taxi stops or equivalent ways.

RemovedRecital 17 c (new): (17c) Crowdwork can be defined as the organising of outsourcing or allocation of tasks potentially provided to a large pool of customers or employers, through online platforms. Crowdwork shares many similarities with other forms of non-standard employment such as temporary work, part-time work or temporary agency work. It is typically performed over the internet through a technological intermediary which is often a platform. Microwork or crowdwork platforms coordinate small online tasks. Those microtask platforms are a type of online digital labour platform that provide businesses and other clients with access to a large, flexible workforce (a “crowd”) for the completion of small tasks that can be completed remotely using a computer and internet connection. Tasks are distributed to a large number of individuals - the so-called crowd - who can perform individual activities asynchronously and remotely via their personal computers. Digital labour platforms organising crowdwork should fall within the scope of this Directive.

RemovedRecital 18: (18) Digital labour platforms differ from other online platforms in that they organise the work performed by individuals at request of a recipient of a service or by the allocation of work through an open call, one-off or repeated, through electronic means, such as a website or a mobile application. Organising work performed by individuals should imply at a minimum a role in matching the demand with the supply of labour by an individual who has a contractual relationship with the digital labour platform, irrespective of the contractual designation of the relationship between that individual and the natural or legal person providing the service, and who is available to perform a specific task, and can include other activities such as processing payments. Online platforms which do not organise the work performed by individuals but merely provide the means for advertising offers or requests for services or aggregating and displaying available service providers in a specific area, without any further involvement, should not be considered a digital labour platform. The definition of digital labour platforms should not include providers of a service whose purpose is to exploit or share assets, such as short-term rental of accommodation or to resell goods.

RemovedRecital 18 a (new): (18a) The frequent misclassification of persons performing platform work, together with the lack of a common workplace where platform workers can get to know and communicate with each other, including for the purpose of defending their interests against the employer, make the phenomenon of company trade unions, or workers’ representatives that are established or controlled by, and in the interests of, the employer rather than those the workers1a, particularly serious in platform work. Such company trade unions or workers’ representatives are contrary to Article 2 of International Labour Organization (ILO) Convention No 98 and to Directive 2002/14/EC of the European Parliament and of the Council1b. When establishing or implementing practical arrangements for information and consultation, employers and the workers’ representatives should work in a spirit of cooperation and with due regard for their reciprocal rights and obligations, taking into account the interests both of the undertaking or establishment and of the workers. Digital labour platforms should ensure, together with the most representative trade unions, that elections for workers’ representatives comply with fundamental rights and freedoms and are in accordance with applicable national law and practice. / 1a Eurofound definition, https://www.eurofound.europa.eu/observatories/eurwork/industrial-relations-dictionary/company-union / 1b Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002…

RemovedRecital 18 b (new): (18b) Social dialogue and collective bargaining are of utmost importance for achieving the goals of thisDirective. The exclusive prerogatives of trade unions should be preserved, such as their right to participate in collective bargaining and to conclude collective agreements. The rights and prerogatives of trade union and other workers’ representatives set out in this Directive should be ensured and respected in line with ILO conventions1a as well as the Council of Europe’s European Social Charter. / 1a In particular, Convention No 87 on Freedom of Association and Protection of the Right to Organise, ILO Convention No 98 on the Right to Organise and Collective Bargaining, and having due regard to ILO Convention No 135 on Workers’ Representatives, ILO Convention No 151 on Labour Relations (Public Service), ILO Convention No 154 on Collective Bargaining and the related ILO Recommendations.

RemovedRecital 18 c (new): (18c) Automated decision-making and monitoring systems should include any computing mechanism that uses computer science techniques or data sets which can influence working conditions, the organisation of labour, and enable problem-solving actions or recommendations that have a significant impact on the persons performing platform work. Such automated decision-making includes, inter alia,monitoring, performance evaluation, individual profiling, and the assignment of tasks. The use of computer-based applications for the exchange of messages (such as emails) is, in principle, regarded as a means of communication and thus does not imply that those applications are automated decisions per se.

RemovedRecital 19: (19) A person performing platform work may be either a platform worker or a genuinely self-employed person. In order to combat false self-employment in platform work and to facilitate the correct determination of the employment status, Member States should have effective procedures in place to prevent and address misclassification of the employment status of persons performing platform work. The aim of those procedures should be to ensure the correct determination of the employment status, ascertaining the existence of an employment relationship as defined by national and applicable international law, collective agreements or practice with consideration to the case-law of the Court of Justice, and, where such employment relationship exists, to ensure full compliance with Union law applicable to workers as well as national labour law, collective agreements and social protection rules. Where self-employment – as defined at national level – is the correct employment status, rights and obligations pursuant to that status should apply.

RemovedRecital 20: (20) In its case law, the Court of Justice has established criteria for determining the status of a worker62 . The interpretation by the Court of Justice of those criteria should be taken into account in the implementation of this Directive. The abuse of the status of self-employed persons, as defined in national law, either at national level or in cross-border situations, is a form of falsely declared work that is frequently associated with undeclared work. False self-employment occurs when a person is declared to be self-employed while fulfilling the conditions characteristic of an employment relationship, in order to avoid certain legal or fiscal obligations, creating a situation of unfair competition in respect of law-abiding companies. Such persons should fall within the scope of this Directive.

RemovedRecital 22: (22) Where the existence of an employment relationship is established based on facts, the party or parties acting as employer should be clearly identified, fulfil all the obligations resulting from their role as employer under national law and relevant national or sectoral collective agreements applicable to the sector of activity, which is to be determined by Member States in cooperation with the social partners, in accordance with national law and practice.

RemovedRecital 23: (23) Ensuring correct determination of the employment status should not prevent the improvement of working conditions of genuinely self-employed persons performing platform work. Collective bargaining is a key tool by which to improve the working conditions of persons performing platform work, irrespective of the contractual designation of the relationship and should be encouraged by the Commission and Member States. The Commission communication of 30 September 2022 containing Guidelines on the application of Union competition law to collective agreements regarding the working conditions of solo self-employed persons can, to that end, serve as useful guidance without prejudice to national law and practice regarding the scope and form of collective representation and provided that those agreements cover genuinely self-employed persons. Member States should take measures to ensure effective protection to persons performing platform work especially female workers, as well as the most vulnerable workers, young workers, older workers, workers in the informal economy, migrant workers and workers with disabilities.

RemovedRecital 24: (24) When digital labour platforms supervise or exert some sort of control over certain elements of the performance of work, they act like employers in an employment relationship. Direction and control, or subordination, is an essential element of the definition of an employment relationship in the Member States and in the case-law of the Court of Justice. Therefore, the contractual relationships between persons performing platform work and the digital labour platform should be deemed, by virtue of a legal presumption, to be an employment relationship. National authorities are to apply the presumption when they consider that there might be incorrect classification of persons performing platform work. The presumption should also be applied when a person performing platform work or a trade union acting on behalf or in support of several persons performing platform work dispute their classification in administrative or legal proceedings. The legal presumption should apply in all relevant administrative procedures and administrative and legal proceedings and should benefit the person performing platform work. Authorities in charge of verifying the compliance with or enforcing relevant legislation, such as labour inspectorates, social protection bodies or tax authorities, should apply the presumption. Member States should put in place a national framework to reduce litigation and increase legal certainty that ensures the correct classification of persons performing platform work f…

RemovedRecital 25: (25) The authorities and competent institutions determining, based on an objective assessment, the correct classification of persons performing platform work regarding the existence of an employment relationship as defined by the applicable law, collective agreements or practice in force in the Member State in question, with consideration to the case-law of the Court of Justice, should be guided by factual elements indicating that the digital labour platform exerts control and direction over the performance of work. Those elements should be inspired by Union and national case law as well as by the ILO Employment Relationship Recommendation, 2006 (No 198) and take into account national concepts of the employment relationship, and its constant evolution, also following the evolution of automated monitoring and decision-making systems. Among the concrete elements that can indicate that the digital labour platform exerts control and direction over the performance of work, there are those showing that the digital labour platform, for instance: determines in practice the working conditions or the remuneration or both; issues periodic payments to the worker; requires the respect of rules with regard to appearance or conduct; gives instructions on how the work is to be performed; prevents the person performing platform work from developing business contacts with potential clients, including via controlling or restricting the communication between the person performing platform work a…

RemovedRecital 26: (26) Effective implementation of the legal presumption through appropriate measures is essential to ensure legal certainty and transparency for all parties involved. Such measures should include disseminating information to the public, developing comprehensive guidance in the form of concrete and practical recommendations, strengthening controls, cooperation between different national authorities, mechanisms for persons performing platform work and digital labour platforms to consult relevant authorities and field inspections. These measures should take into account the specific situation of SMEs in the sustainable development of digital labour platforms. In the interest of fairness, the legal presumption should not have as a consequence that some digital labour platforms incorporate a subcontracting undertaking between the platform and the service providing persons in order to circumvent the obligations set out in this Directive. The digital labour platform of which the employer is a subcontractor should be held liable, in addition to or in the place of the employer, for any infringement of the platform workers' rights provided for in this Directive, including with respect to any outstanding remuneration and contributions due to the common funds or institutions of the social partners.

RemovedRecital 26 a (new): (26a) In order to ensure that labour inspections are carried out effectively, Member States should have sufficient labour inspectors, in accordance with ILO Convention No 81 on Labour Inspection and ILO Report III on the 95th International Labour Conference in 2006, which recommend that there be one labour inspector per 10 000 workers. Member States should determine, every year, a national target for the number of inspections to be carried out in respect of the sectors of activity in which digital labour platforms operate in order to ensure the correct classification of workers. The reclassification of a person performing platform work from self-employed to platform worker should immediately generate an inspection of relevant authorities in order to rapidly verify the status of the other persons performing platform work for the same digital labour platform.

RemovedRecital 26 b (new): (26b) With a view to increasing the effectiveness of inspections for the purposes of applying this Directive, Member States should ensure that national law provides for adequate powers to competent authorities to carry out inspections; that information about false self employment, including the results of previous inspections, is collected and processed for the effective implementation of this Directive; and that sufficient staff are available with the skills and qualifications needed to carry out inspections effectively. Given the high incidence of misclassification, labour inspectors should be required to develop proactive controls.

RemovedRecital 27: (27) In the interest of legal certainty, the legal presumption should not have any retroactive legal effects and should therefore only apply starting from the date set in the transposing legislation, including for contractual relationships entered into before and still ongoing on that date. Claims relating to the possible existence of an employment relationship before that date and resulting rights and obligations until that date should therefore be assessed only on the basis of national law and Union law predating this Directive and in particular on Directive (EU) 2019/1152.

RemovedRecital 28: (28) The relationship between a person performing platform work and a digital labour platform may not meet the requirements of an employment relationship in accordance with the definition laid down in the law, collective agreements or practice in force of the respective Member State with consideration to the case-law of the Court of Justice. Member States should ensure the possibility for any of the parties to rebut the legal presumption in legal or administrative proceedings or both by proving, on the basis of the aforementioned definition, that the relationship in question is not an employment relationship. The shift in the burden of proof to digital labour platforms is justified by the fact that they have a complete overview of all factual elements determining the relationship, in particular the algorithms through which they manage their operations. Where a digital labour platform challenges an administrative or judicial decision determining the employment status of a person performing platform work, proceedings arising from such a challenge should not have a suspensive effect on that decision. A successful rebuttal of the presumption in administrative proceedings should not preclude the application of the presumption in subsequent judicial proceedings. When the person performing platform work who is the subject of the presumption seeks to rebut the legal presumption, the digital labour platform should be required to assist the proceedings, notably by providing all relevan…

RemovedRecital 28 a (new): (28a) Member States should have enforcement provisions which ensure the use of favourable presumptions in cases of misclassification of persons performing platform work when reclassifying them, including, where relevant, a presumption that the platform worker has an open-ended employment relationship, that there is no probationary period and that the platform worker has a full-time position in the undertaking.

RemovedRecital 30: (30) In addition to rights and obligations provided in this Directive, rights and obligations provided in Regulation (EU) 2016/679 continue to apply when personal data are processed. Article 9 of Regulation (EU) 2016/679 provides for specific rules for the processing of special categories of personal data. Considering the intrusive nature of the processing of biometric data, especially in a work relationship, biometric identification should never be mandatory. Employers should always guarantee less intrusive ways to achieve the intended purpose of identification. Persons performing platform work should always be offered an easily accessible, freely available and effective alternative way of identifying themselves, such as with identity, travel or other documents or in-person verification and they should not be offered any incentives to use the biometric identification mechanism nor suffer from any type of adverse consequence. Articles 13, 14 and 15 of Regulation (EU) 2016/679 require data controllers to ensure transparency towards data subjects on the collection and processing of personal data. Articles 16 to 21 of Regulation (EU) 2016/679 introduce rights to rectification, to erasure, to the restriction of processing of data, to data portability and to objecting to the processing of personal data. Moreover, Article 22(1) of Regulation (EU) 2016/679 provides for the data subjects’ right not to be subject to a decision based solely on automated processing, including profiling,…

RemovedRecital 30 a (new): (30a) The use of algorithmic scheduling systems heightens the use of precarious, short shifts and unstable and unpredictable schedules1a. Algorithmic direction, evaluation, and discipline intensify work effort by increasing monitoring, raising the pace required from workers, minimising gaps in workflow, and extending work activity beyond the conventional workplace and working hours. The use of non-transparent algorithms to make managerial decisions creates feelings of insecurity among workers and may lead to unfair treatment and the denial of procedural due process at work. The limited learning at work and influence over tasks due to the use of non-transparent algorithms, work intensification and insecurity highlighted above is likely to increase workforce stress and anxiety and be harmful to wellbeing and health as well as to human dignity and other fundamental rights. / 1a Algorithmic Management. Consequences for Work Organisation and Working Conditions, Joint Research Centre, European Commission (Seville, Spain)

RemovedRecital 31: (31) This Directive is without prejudice to Articles 13, 14, 15 and 22 of Regulation (EU) 2016/679, except for Articles 13(2)(f), 14(2)(g) and 15(1)(h) thereof, in relation to which Article 6 of this Directive provides for more specific rules in the context of platform work, including to ensure the protection of the rights and freedoms in respect of the processing of employees' personal data within the meaning of Article 88 of Regulation (EU) 2016/679, which allows more specific rules to ensure the protection of the rights and freedoms in respect of the processing of employees' personal data in the employment context, in particular for the purposes of the recruitment, the performance of the contract of employment, including discharge of obligations laid down by law or by collective agreements, management, planning and organisation of work, equality, including gender equality, and diversity in the workplace, health and safety at work, protection of employer's or customer's property and for the purposes of the exercise and enjoyment, on an individual or collective basis, of rights and benefits related to employment, and for the purpose of the termination of the employment relationship. Article 88 of Regulation (EU) 2016/679 allows more specific rules in the context of employment. This Directive establishes specific measures in the context of platform work to safeguard human dignity, legitimate interests and fundamental rights of persons performing platform work, with particular…

RemovedRecital 32: (32) Digital labour platforms should be subject to transparency obligations in relation to automated monitoring and decision-making systems that are used to monitor, supervise or evaluate the work performance through electronic means or to monitor the persons performing platform work themselves; and automated decision-making systems which are used to take or support decisions that significantly affect working conditions, including access of persons performing platform work to work assignments, their earnings, their occupational safety and health, their working time, their promotion, their social protection entitlements and their contractual status, including the restriction, suspension or termination of their account. In addition to what is provided in Regulation (EU) 2016/679, information and consultation concerning such systems should also be provided where decisions are not solely based on automated processing, provided that they are supported by automated systems. It should also be specified which kind of information should be provided to persons performing platform work regarding such automated systems, as well as in which form and when it should be provided. The obligation of the controller under Articles 13, 14 and 15 of Regulation (EU) 2016/679 to provide the data subject with certain information in relation to the processing of personal data concerning the data subject as well as with access to such data should continue to apply in the context of platform work. Infor…

RemovedRecital 32 a (new): (32a) Certain decisions, such as those having an impact on health and safety and on the contractual relationship or introducing changes to the employment relations, as well as decisions to apply disciplinary measures, or restricting, suspending or terminating the contractual relationship and the person performing platform work’s account, or any decision of equivalent detriment, should always be taken by humans, not by automated systems. Considering the impact on workers of such decisions, including their livelihood and fundamental rights, including social rights, there should always be a human responsible for those decisions.

RemovedRecital 32 b (new): (32b) Some types of processing of data in digital labour platforms may result in a high risk to the rights and freedoms of the workers. Article 35 of Regulation (EU) 2016/679 establishes that the controller is to, prior to the processing, carry out an assessment of the impact of the envisaged processing operations on the protection of personal data. It also provides that the controller, where appropriate, is to seek the views of data subjects or their representatives on the intended processing, without prejudice to information transmitted on a confidential basis. That consultation should be carried out in an appropriate manner and with appropriate content to enable, in particular, workers' representatives to conduct an adequate study and, where necessary, prepare for the consultation. Before each deployment of an automated monitoring system or a system to take or assist in decision-making and before any changes affecting working conditions, the organisation of work or monitoring work performance, digital labour platforms should perform an impact assessment of the system’s impact on data protection.

RemovedRecital 33: (33) Digital labour platforms should be required to disclose the detailed functioning of their automated monitoring and decision-making systems, including algorithms, which may affect the rights covered by this Directive. Information transmitted as confidential to the representatives of persons performing platform work and any experts who assist them should not justify a refusal to provide all the information required by this Directive. Member States should determine a list of objective criteria to determine the confidential nature of that information that representatives of persons performing platform work and any experts are not authorised to reveal, as expressly provided to them in confidence.

RemovedRecital 34 a (new): (34a) Digital labour platforms should under no circumstances provide for discriminatory practices when processing personal data. Digital labour platforms should ensure workers and workers’ representatives tools to facilitate effective, machine-readable data portability that is free of charge in order to exercise their rights under this Directive and under Regulation (EU) 2016/679, in particular the rights under Chapter 3 of that Regulation. Persons performing platform work should have the right both to transfer data and not to transfer data as it could endanger them, for example in relation to reputational data.

RemovedRecital 35: (35) Digital labour platforms make extensive use of automated monitoring and decision-making systems in managing their human resources. Monitoring by electronic means can be intrusive and decisions taken or supported by such systems directly affect the persons performing platform work, who might not have a direct contact with a human manager or supervisor. Digital labour platforms should therefore ensure human oversight and evaluate together with the workers’ representatives the impact of individual decisions taken or supported by automated monitoring and decision-making systems on working conditions and on fundamental rights and freedoms of workers, including their human dignity and health and safety. Digital labour platforms should ensure sufficient human resources for this purpose. The persons charged by the digital labour platform with the function of overseeing should have the necessary competence, training and authority to exercise that function and should be protected from dismissal, disciplinary measures or other adverse treatment for overriding automated decisions or suggestions for decisions. In addition to obligations under Article 22 of Regulation (EU) 2016/679, Article 7(1) and (3) of this Directive provides for distinct obligations of digital labour platforms in relation to human monitoring of the impact of individual decisions taken or supported by automated systems, which apply as specific rules in the context of platform work, including to ensure the protecti…

RemovedRecital 36 a (new): (36a) The persons in charge of reviewing decisions significantly affecting working conditions should be involved in checking the system’s recommendation and should not routinely apply the automated recommendation to an individual. The involvement of reviewers should be active and not only a token gesture. They should have actual concrete influence on the decision, including the authority and competence to reject, revoke and replace it . Reviewers should weigh-up and interpret the recommendation, consider all available input data, and also take into account other additional factors in order to safeguard the rights of persons performing platform work as well as their health and safety.

RemovedRecital 37: (37) In that context, persons performing platform work should have the right to obtain a human review and an explanation from the digital labour platform for a decision, the lack of decision or a set of decisions taken or supported by automated systems that significantly affect their working conditions at the earliest opportunity and at the latest on the day on which such decisions take effect. For that purpose the digital labour platform should provide the possibility for them to discuss and clarify the facts, circumstances and reasons for such decisions with a human contact person at the digital labour platform. In addition, digital labour platforms should provide the person performing platform work with a written statement of reasons for any decision to restrict access to work assignments, to restrict, suspend or terminate that person’s account, to reject work and to refuse the remuneration for work performed by that person, or affecting his or her contractual status at the earliest opportunity and at the latest on the day on which such decisions take effect, as such decisions are likely to have significant negative effects on persons performing platform work, in particular their potential earnings. The written statement can be provided and transmitted on paper or in electronic form, provided that it is accessible to the person performing platform work, that it can be stored and printed, and that the platform retains proof of transmission or receipt. Where the explanation …

RemovedRecital 38: (38) Council Directive 89/391/EEC63 introduces measures to encourage improvements in the safety and health of workers at work, including the obligation for employers to assess the occupational health and safety risks. As automated monitoring and decision-making systems potentially have significant impact on workers' safety and on the physical and mental health of persons performing platform work, digital labour platforms should avoid those risks, evaluate and combat the risks that cannot be avoided, combat the risks at source, assess whether the safeguards of the systems are appropriate to address those risks and take appropriate preventive, protective and corrective measures. Particularly relevant in this context is the employer’s obligation to adapt the work to the individual, especially as regards the design of work places, the choice of work equipment and the choice of working and production methods, with a view, in particular, to alleviating monotonous work and work at a predetermined work-rate and to reducing their consequences on health. This Directive requires employers to consult workers and workers’ representatives and to allow them to take part in discussions on all questions relating to safety and health at work. In particular, the planning and introduction of new technologies should be subject to consultation with the workers and workers’ representatives, as regards the consequences of the choice of equipment, the working conditions and the working environment on…

RemovedRecital 38 a (new): (38a) At least yearly, the digital labour platforms should perform an assessment of the impact of individual decisions taken or supported by automated monitoring and decision-making systems on working conditions, health and safety and fundamental rights and include measures to combat any impact on fundamental rights and health and safety, including mental health. Where the possible impacts on fundamental rights, health and safety, including mental health, cannot be mitigated, the systems should not be put into use.

RemovedRecital 38 b (new): (38b) Platform work, in particular online platform work, poses a range of both pre-existing and new occupational safety and health risks, both physical and psychosocial. Moreover, people working through platforms are exposed to particular health and safety risks. They usually receive little or no training and have low prospects of career advancement1a. Digital labour platforms should not use automated monitoring and decision-making systems in any manner that puts undue pressure on persons performing platform work or otherwise puts at risk the physical and mental health of platform workers for example through the use of incentives, such as exceptional bonuses, or punitive practices, such as ratings that have an impact on working time and lead to the assignment of less work. They should ensure that automated monitoring and decision-making systems avoid any potential discriminatory decisions issued on the basis of existing biases or practices. / 1a Protecting Workers in EU Platform Economy, EU OSHA 2017, p. 28

RemovedRecital 39: (39) Directive 2002/14/EC establishes a general framework for informing and consulting employees in the Union. The introduction of or substantial changes in the use of automated monitoring and decision-making systems by digital labour platforms have direct impacts on the work organisation and individual working conditions of platform workers. Additional measures are necessary to ensure that digital labour platforms inform and effectively consult workers' representatives in good faith before such decisions are taken, at the appropriate level and, given the technical complexity of algorithmic management systems, in due time in order to allow effective consultation and with the assistance of an expert chosen by the workers’ representatives in a concerted manner where needed. In accordance with Directive 2002/14/EC, those provisions are meant to foster effective social dialogue on these features and, because automated monitoring and decision-making systems have a direct impact on working conditions, it should be possible to subject them to collective bargaining. / (deleted)

RemovedRecital 39 a (new): (39a) In its 2021 Action Plan for the Social Economy, the Commission has acknowledged the significant economic and social role of social economy entities as an example of participatory-governed businesses which use digital platforms to facilitate citizen engagement and the selling of locally produced goods and services, aiming to achieve better working conditions for their members. Cooperatives could therefore constitute an important instrument for the bottom-up organisation of platform work and could encourage competition between platforms. Member States should protect and promote cooperative undertakings and small businesses by means that aim to safeguard employment and ensure their capacity for sustainable development and growth.

RemovedRecital 40: (40) The rights in Articles 6, 7 and 8 of this Directive pertaining to the protection of natural persons in relation to the processing of personal data in the context of algorithmic management, namely those regarding transparency on automated monitoring and decision-making systems, restrictions to process or collect personal data, human monitoring and review of significant decisions, should also apply to persons in the Union performing platform work who do not have an employment contract or employment relationship. The rights pertaining to health and safety at work and information and consultation of platform workers or their representatives, which are specific to workers in view of Union law, should not apply to them. Regulation (EU) 2019/1150 provides safeguards regarding fairness and transparency for self-employed persons performing platform work, provided that they are considered business users within the meaning of that Regulation. Where such safeguards conflict with elements of specific rights and obligations laid down in this Directive, the specific provisions of Regulation (EU) 2019/1150 should prevail in respect of business users.

RemovedRecital 41: (41) In order to ensure that digital labour platforms comply with labour legislation and regulations, taxation and social security contribution obligations, social security coordination and other relevant rules, and with a view to preventing unfair competition, in particular if they are established in another country than the Member State in which the platform worker is performing work, digital labour platforms should declare work performed by platform workers to the competent labour and social protection authorities of the Member State in which the work is performed, in accordance with the rules and procedures laid down in the law of the Member States concerned. As regards such cross-border cases, the European Labour Authority was established to facilitate and support cooperation between the competent national authorities in the enforcement of relevant Union law, to ensure access to information to employers and workers on their rights and obligation in the framework of labour mobility, to coordinate the European Employment Services network (EURES) and to foster the exchange of information between Member States, including through promoting the use of electronic data exchange tools between national authorities such as the Commission’s Internal Market Information System, Electronic Exchange of Social Security Information system, and to coordinate and support concerted or joint inspections with the aim of enforcing relevant Union law.

RemovedRecital 42: (42) Digital labour platforms should be listed in the applicable public business register, which should include relevant information on all digital labour platforms operating in the country. Information on the number of persons performing platform work through digital labour platforms, their contractual or employment status, copy of employment contract, average duration of activity and average income from activity and the general terms and conditions applicable to those contractual relationships. Such information is essential to support labour inspectorates, social protection bodies and other relevant authorities in correctly determining the employment status of persons performing platform work and in ensuring compliance with legal obligations as well as representatives of persons performing platform work, including trade unions, in the exercise of their representative functions and should therefore be made accessible to them. Those authorities and representatives should also have the right to ask digital labour platforms for additional clarifications and details, such as basic data on working conditions regarding working time and remuneration. The European Foundation for the improvement of living and working conditions (Eurofound) and the European Labour Authority should, according to their respective prerogatives and mandates, support the collection and sharing of those data for the purpose of developing appropriate risk assessment tools.

RemovedRecital 42 a (new): (42a) Experience shows that when national law has introduced the presumption of an employment relationship for digital labour platforms, the use of subcontracting chains has been used as a way of circumventing the application of labour law to platform workers1a. The use of undeclared work in delivery platforms has also been evidenced in several Member States. This practice is carried out through rented identities: platform workers or people with the right to work who register in the platform rent their accounts mainly to undocumented migrants and to minors1b. In order to prevent undeclared work as well as the misuse of subcontracting as a means by which to circumvent this Directive, Member States should introduce legal provisions on subcontracting that provide for joint and several liability and effective access to redress across subcontracting chains, ensuring that the contractors in a subcontracting chain may be held liable to pay wages, social security contributions and financial penalties in addition to or in place of the direct employer. In specific cases involving illegally staying third country nationals, all the contractors involved in the subcontracting chain may be liable of criminal offences as provided for in Directive 2009/52/EC of the European Parliament and of the Council1c. Member States should ensure that undocumented migrants can have access to justice without fearing any retaliation or risk of deportation, also in accordance with Directive 2009/52/EC. In or…

RemovedRecital 43: (43) An extensive system of enforcement provisions for the social acquis in the Union has been developed, elements of which should be applied to this Directive in order to ensure that persons performing platform work have access to appropriate, timely, effective and impartial dispute resolution and a right to redress, including adequate compensation. Access to such dispute resolution and right to redress should be free of charge at least for persons who do not have sufficient means. Specifically, having regard to the fundamental nature of the right to effective legal protection, persons performing platform work should continue to enjoy such protection even after the end of the employment or other contractual relationship giving rise to an alleged breach of rights under this Directive.

RemovedRecital 44: (44) Representatives of persons performing platform work, including trade unions, should be able to represent one or several persons performing platform work in any judicial or administrative procedure to enforce any of the rights or obligations arising from this Directive. Bringing claims on behalf of or supporting several persons performing platform work is a way to facilitate proceedings that would not have been brought otherwise because of procedural and financial barriers or a fear of reprisals.

RemovedRecital 45: (45) Platform work is characterised by the lack of a common workplace where workers can get to know each other and communicate with each other and with their representatives, also in view of defending their interests towards the employer. In some areas prevalent in platform work, such as digital remote services or design work, many Member States lack established workers representatives' organisations or trade unions. In accordance with national law and practice, persons performing platform work should be free to organise, choose representatives and be taken into account in social dialogue and collective bargaining processes, regardless of their employment status. Persons performing platform work can also be exposed to the increased risk of violence, including gender-based violence and harassment. It is therefore necessary to create private, secure, possibly through encryption, digital communication and reporting channels, in line with the digital labour platforms’ work organisation, where persons performing platform work can exchange with each other and be contacted by their representatives and report incidents of violence or harassment. Digital labour platforms should create such communication and reporting channels within their digital infrastructure or through similarly effective means, while respecting the protection of personal data and refraining from accessing or monitoring those communications. For the same reasons, collective bargaining should be promoted by ensuring…

RemovedRecital 46: (46) In administrative or judicial proceedings regarding the correct determination of the employment status of persons performing platform work, the elements regarding the organisation of work allowing to establish the employment status and in particular whether the digital labour platform controls or directs certain elements of the performance of work, may be in the possession of the digital labour platform and not easily accessible to persons performing platform work and competent authorities. National courts or competent authorities should therefore be able to order the digital labour platform to disclose any relevant evidence which lies in their control, including confidential information, subject to effective measures to protect such information

RemovedRecital 47: (47) Given that Article 6, Article 7(1) and (3) and Article 8 of this Directive provide for specific rules in the context of platform work to ensure the protection of employees' personal data within the meaning of Article 88 of Regulation (EU) 2016/679 and that Article 10 of this Directive applies those safeguards also in the case of persons without employment contract or employment relationship, the national supervisory authorities referred to in Article 51 of Regulation (EU) 2016/679 should be competent to monitor the application of those safeguards. Chapters VI, VII and VIII of Regulation (EU) 2016/679 should apply in terms of procedural framework for the enforcement of those safeguards as well as the communication and reporting channels established in Article 15 of this Directive. in particular as regards supervision, cooperation and consistency mechanisms, remedies, liability and penalties, including the competence to impose administrative fines up to the amount referred to in Article 83(5) of that Regulation.

RemovedRecital 48: (48) Automated monitoring and decision-making systems used in the context of platform work involve the processing of personal data and affect the working conditions and rights of persons performing platform work. They therefore raise issues of data protection law as well as labour and social protection law. Data protection supervisory authorities and relevant labour and social protection authorities should therefore cooperate, including at cross-border level, in the enforcement of this Directive, including by exchanging relevant information with each other, without prejudice to the independence of data protection supervisory authorities.

RemovedRecital 48 a (new): (48a) As the rights and freedoms of individuals can be seriously undermined by automated monitoring or decision-making systems, it is essential that affected individuals have meaningful access to reporting and redress mechanisms with the relevant national authority, be it the data protection authority or the labour inspectorate. They should be able to report possible infringements of this Directive to the competent national authority and have the right to be heard and to be informed about the outcome of their complaint and the right to a timely decision.

RemovedRecital 49: (49) Since one of the objective of this Directive, namely to improve working conditions in platform work, cannot be sufficiently achieved by the Member States but can rather, by reason of the need to establish common minimum requirements, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. Minimum harmonisation at Union level is necessary to improve working conditions in platform work and to protect workers’ rights across the Union considering the Union-wide dimension of many digital labour platforms, in order to avoid a Union-wide race to the bottom regarding working conditions and in order to create a level playing field for businesses that respect social standards. In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.

RemovedRecital 51: deleted

RemovedArticle 1 – paragraph 1: 1. The purpose of this Directive is to improve the working conditions of persons performing platform work by ensuring the correct determination of their employment status, by promoting transparency, fairness, human oversight, safety and accountability in algorithmic management in platform work and by improving transparency in platform work, including in cross-border situations, while fostering the sustainable growth of digital labour platforms in the Union.

RemovedArticle 1 – paragraph 2 – subparagraph 2: In accordance with Article 10, rights laid down in this Directive pertaining to the protection of natural persons in the context of algorithmic management also apply to every person performing platform work in the Union who does not have an employment contract or employment relationship.

RemovedArticle 2 – paragraph 1 – point 1 – point b: (b) it is provided at the request of a recipient of the service or it involves the allocation of work through an open call;

RemovedArticle 2 – paragraph 1 – point 1 – point c: (c) it involves the organisation of work performed by individuals, irrespective of whether that work is performed online or in a certain location and irrespective of the contractual designation of the relationship between that individual and the natural or legal person providing the service;

RemovedArticle 2 – paragraph 1 – point 2: (2) ‘platform work’ means any work organised through a digital labour platform and performed in the Union by an individual, irrespective of whether a contractual relationship exists between the individual and the recipient of the service;

RemovedArticle 2 – paragraph 1 – point 5: (5) ‘workers' representatives’ means representatives of recognised trade unions in accordance with national law and practice or other persons who are freely elected or who are designated by the workers in an organisation to represent them in accordance with national law or practices, or both;

RemovedArticle 2 – paragraph 1 – point 5 a (new): (5a) ‘representatives of persons performing platform work’ means the representatives of recognised trade unions in accordance with national law and practice or other persons who are freely elected or who are designated by the workers or by the self-employed performing platform work in an organisation to represent them in accordance with national law or practices, or both;

RemovedArticle 2 – paragraph 1 – point 5 b (new): (5b) ‘automated monitoring systems’ means any automated systems used for or supporting monitoring, supervising or evaluating the work performance;

RemovedArticle 2 – paragraph 1 – point 5 c (new): (5c) ‘automated decision-making systems’ means any automated systems used to take decisions or support decision-making;

RemovedArticle 2 – paragraph 1 – point 5 d (new): (5d) ‘biometric data’ means biometric data as defined in Article 4, point (14), of Regulation (EU) 2016/679;

RemovedArticle 2 – paragraph 1 – point 5 e (new): (5e) ‘biometrics-based data’ means data resulting from specific technical processing relating to physical, physiological, or behavioural features, signals, or characteristics of a natural person, such as facial expressions, movements, pulse frequency, voice, keystrokes or gait.

RemovedArticle 2 – paragraph 2: 2. The definition of digital labour platforms laid down in paragraph 1, point (1), shall not include providers of a service whose primary purpose is to exploit or share assets or that allow private individuals to resell goods. It shall be limited to providers of a service for which the organisation of work performed by the individual constitutes not merely a minor and purely ancillary component.

RemovedArticle 3 – paragraph 1: 1. Member States shall have appropriate and effective procedures in place to verify and ensure the correct determination of the employment status of persons performing platform work, with a view to applying the presumption of an employment relationship in accordance with Article 4(1) for the purpose of ascertaining the existence of such a relationship as defined by applicable law, collective agreements or practice in force in the Member States and with consideration to the case-law of the Court of Justice, and ensuring that such persons enjoy the rights deriving from Union law applicable to workers.

RemovedArticle 3 – paragraph 2: 2. The determination of the existence of an employment relationship shall be guided primarily by the facts relating to the actual performance of work, taking into account the use of algorithms in the organisation of platform work, irrespective of how the relationship is classified in any contractual arrangement that may have been agreed between the parties involved. Where the existence of an employment relationship is established based on such facts, the party or parties assuming the obligations of the employer shall be clearly identified in accordance with national legal systems and with Article 12b, and shall dully fulfil those obligations.

RemovedArticle 3 – paragraph 2 a (new): 2a. Where digital labour platforms are recognised to exercise the prerogatives of employers, they shall comply with the corresponding employers’ obligations under national law and collective agreements applicable in the sector of activity, including in relation to labour law, income tax and financing of social protection. Platform workers shall fully enjoy the status of worker in accordance with national law, collective agreements or practice in force in the Member States, including the rights to join a trade union, to organise, and to bargain collectively.

RemovedArticle 3 – paragraph 2 b (new): 2b. This Directive applies in full to digital labour platforms exerting the function of temporary work agencies, in addition to Directive 2008/104/EC.

RemovedArticle 4 – paragraph 1 – subparagraph 1: A person performing platform work shall be either a platform worker or a genuinely self-employed person. 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 and therefore digital labour platforms shall be presumed to be employers. To that effect, Member States shall establish a framework of measures, in accordance with their national legal and judicial systems, in order to ensure that the legal presumption can be relied upon by competent authorities and bodies that verify compliance with or enforce relevant legislation as well as by persons performing platform work and their representatives.

RemovedArticle 4 – paragraph 1 – subparagraph 1 a (new): Where competent authorities and bodies, including those responsible for registering administrative procedures, consider that a person performing platform work might be wrongly classified, they shall apply the presumption. Where a person performing platform work or a trade union acting on behalf or in support of several persons performing platform work, in accordance with national law or practice, dispute their classification in an administrative or legal proceeding, the presumption shall be applied.

RemovedArticle 4 – paragraph 1 – subparagraph 2: The application of the legal presumption shall not lead to an automatic reclassification of all persons performing platform work as platform workers. Digital labour platforms shall have the possibility to rebut the presumption of employment before a decision for reclassification is taken in administrative or legal proceedings. The rebuttable presumption of employment shall apply in all relevant administrative procedures and administrative and legal proceedings. Competent authorities and bodies, including those responsible for registering administrative procedures, verifying compliance with or enforcing relevant legislation, including collective agreements, shall effectively apply that presumption. To that end, digital labour platforms shall be required by the competent authorities and bodies to provide all relevant information in order for the authorities to determine, based on an objective assessment, the correct classification of the persons performing platform work.

RemovedArticle 4 – paragraph 2: deleted / (deleted) / (deleted) / (deleted) / (deleted) / (deleted)

RemovedArticle 4 – paragraph 3 – introductory part: 3. Member States shall take supporting measures to ensure the effective implementation of the legal presumption referred to in paragraph 1 in order to ensure the effective protection of workers performing work in the context of an employment relationship. In particular they shall:

RemovedArticle 4 – paragraph 3 – point b: (b) develop comprehensive guidance, including in the form of concrete and practical recommendations, for digital labour platforms, persons performing platform work and the social partners to understand and implement the legal presumption including on the procedures for rebutting it in accordance with Article 5;

RemovedArticle 4 – paragraph 3 – point c: (c) develop guidance, capacity building and training and establish procedures for national competent and enforcement authorities to proactively identify, target, and pursue digital labour platforms in order to ensure effective compliance with this Directive, including by imposing dissuasive penalties on non-compliant digital labour platforms;

RemovedArticle 4 – paragraph 3 – point c a (new): (ca) develop guidance and establish procedures for competent administrative authorities and institutions to proactively apply the legal presumption in the administrative procedures and to share data with other relevant authorities in order to apply the legal presumption in the processing and registration of contractual relations and social security related data;

RemovedArticle 4 – paragraph 3 – point d: (d) strengthen the controls and field inspections conducted by labour inspectorates or the bodies responsible for the enforcement of labour law, while ensuring that such controls and inspections are proportionate and non-discriminatory, and establish, every year, a national target for the number of inspections to be carried out in respect of the sectors of activity in which digital labour platforms operate, in order to determine the correct classification of workers;

RemovedArticle 4 – paragraph 3 – point d a (new): (da) provide for an inspection by labour inspectorates or the bodies responsible for the enforcement of labour law every time a person performing platform work is newly recognised as platform worker, within one month of such recognition, in order to verify the status of the other persons performing platform work for the same digital labour platform;

RemovedArticle 4 – paragraph 3 – point d b (new): (db) provide for sufficient resources and training for labour inspectorates or the bodies responsible for the enforcement of labour law in order to strengthen their capacities, especially in the technological field, in order to enable them to effectively comply with points (d) and (da), including by carrying out routine or announced visits;

RemovedArticle 4 – paragraph 3 – point d c (new): (dc) ensure that duly qualified technical experts and specialists, particularly with respect to algorithmic management, assist the labour inspectorates in their work when necessary;

RemovedArticle 4 – paragraph 4: 4. With regard to contractual relationships entered into before and still ongoing on the date set out in Article 21(1), the legal presumption referred to in paragraph 1 shall only apply to the period starting from that date, without prejudice to Directive (EU) 2019/1152 that could apply before that date.

RemovedArticle 5 – paragraph 1: 1. Member States shall ensure the possibility for any of the parties to rebut the legal presumption referred to in Article 4 in legal or administrative proceedings or both.

RemovedArticle 5 – paragraph 2: Where the digital labour platform argues that the contractual relationship in question is not an employment relationship in accordance with Article 4(1) and as defined by applicable the law, collective agreements or practice in force in the Member State in question, with consideration to the case-law of the Court of Justice, the burden of proof shall be on the digital labour platform.

RemovedArticle 5 – paragraph 3: Where the person performing the platform work argues that the contractual relationship in question is not an employment relationship in accordance with Article 4(1), and as defined by applicable law, collective agreements or practice in force in the Member State in question and the case-law of the Court of Justice, the digital labour platform shall be required to assist the proper resolution of the proceedings, notably by providing all relevant information held by it.

RemovedArticle 5 – paragraph 3 a (new): 1a. Member States shall ensure the possibility to rebut the presumption referred to in Article 4 by means of demonstrating that the person performing platform work is genuinely self-employed as both the following criteria are satisfied:

RemovedArticle 5 – paragraph 3 a – point a (new): (a) the contractual relationship in question is not an employment relationship as defined by applicable law, collective agreements or practice in force in the Member State in question, with consideration to the case-law of the Court of Justice, and the person performing platform work is free from control and direction of the digital labour platform in connection with the performance of the work, both under the contract for the performance of the work and in fact;

RemovedArticle 5 – paragraph 3 a – point b (new): (b) the person performing platform work is usually engaged in an independently established trade, profession or business of the same nature as that with which the work performed is related.

RemovedArticle 5 – paragraph 3 b (new): 1b. The following elements indicating control and direction in connection with the performance of work, within the meaning of Article 5(2), point (a), shall be taken into consideration:

RemovedArticle 5 – paragraph 3 b – point a (new): (a) effectively determining, or setting upper limits for, the level of remuneration or issuing periodic payments of remuneration;

RemovedArticle 5 – paragraph 3 b – point b (new): (b) effectively determining or controlling working conditions, including restricting time schedule and working time duration, or enforcing the performance of work, including through penalties or incentives, restricting access to work, or using rating systems as a tool of control and a basis for penalties and as a tool to allocate work assignments;

RemovedArticle 5 – paragraph 3 b – point c (new): (c) effectively preventing the person performing platform work from developing business contacts with potential clients, including via controlling or restricting the communication between the person performing platform work and the recipient of goods or services during or after the performance of the work;

RemovedArticle 5 – paragraph 3 b – point d (new): (d) tracking or supervising the person performing platform work while performing the work;

RemovedArticle 5 – paragraph 3 b – point e (new): (e) requiring the person performing platform work to comply with specific rules with regard to appearance, conduct towards the recipient of the service or performance of the work;

RemovedArticle 5 – paragraph 3 b – point f: (f) effectively restricting the use of subcontractors or substitutes to perform the work;

RemovedArticle 5 – paragraph 3 b – point g: (g) effectively restricting the possibility of the person performing platform work to perform work for any third party, including competitors of the digital labour platforms;

RemovedArticle 5 – paragraph 3 b – point h: (h) restricting the freedom of the person performing platform work to choose social protection, accident insurance, pension scheme or other forms of insurance, including through adverse consequences.

RemovedArticle 5 – paragraph 3 c (new): 1c. Member States shall regularly review, assess and, where necessary, complement the elements set out in paragraph 1b, in consultation with the social partners. Where a digital labour platform challenges an administrative or judicial decision determining the employment status of a person performing platform work, proceedings arising from such a challenge shall not have a suspensive effect on that decision.

RemovedArticle 6 – paragraph 1 – subparagraph 1: 1. Without prejudice to the obligations and rights of digital labour platforms and platform workers under Regulation (EU) 2016/679 and Directives 89/391/EEC, 2009/38/EC and (EU) 2019/1152 , Member States shall require digital labour platforms to inform platform workers, workers’ representatives and the labour inspectorate and other competent authorities of:

RemovedArticle 6 – paragraph 1 – subparagraph 1 – point a: (a) automated monitoring systems which are used for, or support, monitoring, supervising or evaluating the work performance of platform workers through electronic means;

RemovedArticle 6 – paragraph 1 – subparagraph 1 – point b: (b) automated decision-making systems which are used to take or support decisions that significantly affect those platform workers’ working conditions, in particular their recruitment, their access to and organisation of work assignments, their earnings including the pricing of individual assignments, their occupational safety and health, their working time, their promotion and their contractual status, including the restriction, suspension or termination of their account.

RemovedArticle 6 – paragraph 1 – subparagraph 1a (new): The information referred to in points (a) and (b) shall be provided irrespectively of the automated monitoring and decision-making systems being managed by the digital labour platform or any service provider that sells its management services to the platform.

RemovedArticle 6 – paragraph 2 – point a – point ii: (ii) the categories of data and actions monitored, supervised or evaluated by such systems, including evaluation by the recipient of the service;

RemovedArticle 6 – paragraph 2 – point a – point ii a (new): (iia) the aim of the monitoring and how the system is to achieve it;

RemovedArticle 6 – paragraph 2 – point a – point ii b (new): (iib) the functioning and mode of operation of features that affect the employment relationship, in particular recruitment, access to work assignments, earnings, health and safety, working time, promotion, ranking, and the restriction, suspension or termination of accounts;

RemovedArticle 6 – paragraph 2 – point b – point iii: (iii) the categories of data and main parameters that such systems take into account and the relative importance of those main parameters in the automated decision-making, including the way in which the platform worker’s personal data or behaviour influence the decisions and any performance evaluation mechanisms;

RemovedArticle 6 – paragraph 2 – point b – point iv: (iv) the grounds for decisions to restrict, suspend or terminate the platform worker’s account, to refuse the remuneration for work performed by the platform worker, on the platform worker’s contractual status or any decision with similar effects, the grounds for promotion, for task allocation and, where decision-making is supported or based on monitoring and evaluating performance, how behaviour has been evaluated and the reasons for the evaluation.

RemovedArticle 6 – paragraph 2 a (new): 2a. Decisions having an impact on health and safety and on the contractual relationship or introducing changes to the agreed terms of the employment relationship, and decisions to apply disciplinary measures, or restricting, suspending or terminating the contractual relationship and the platform worker’s account, or any decision of equivalent detriment, shall not be taken by automated monitoring and decision-making systems and shall be taken in accordance with national law and collective agreements.

RemovedArticle 6 – paragraph 3: 3. Digital labour platforms shall provide the information referred to in paragraph 2 in the form of a document which may be in electronic format. The information shall be presented in a transparent, intelligible and easily accessible form, using clear and plain language. For newly deployed automated systems information shall be provided prior to their use and before any changes affecting working conditions, the organisation of work or monitoring work performance. / Individual platform workers shall receive that information by the digital labour platform in so far as the systems and their features directly affect them and their working conditions at the latest on the first working day, or prior to the introduction of the changes affecting working conditions, the organisation of work or monitoring work performance and at any time upon the platform workers’ request. The information shall be presented in a concise, transparent, intelligible and easily accessible form, using clear and plain language. That information shall not be subject to confidentiality rules established by Article 6a.

RemovedArticle 6 – paragraph 4: 4. Digital labour platforms shall always make the information referred to in paragraph 2 available to national labour authorities and other national competent authorities also upon their request.

RemovedArticle 6 – paragraph 5 – point a: (a) process any personal data on the emotional or psychological state of the platform worker or infer the emotional or psychological state of the platform worker by making use of any personal data collected;

RemovedArticle 6 – paragraph 5 – point c: (c) process any personal data in relation to private conversations, including exchanges with or among platform workers and workers’ representatives, also in relation to the possibility to organise collectively and to defend their rights;

RemovedArticle 6 – paragraph 5 – point c a (new): (ca) process any personal data revealing racial or ethnic origin, migration status, political opinions, religious or philosophical beliefs, disability or state of health, including chronic disease or HIV status, or trade union membership and the processing of genetic data, biometric data for the purpose of uniquely identifying a person, or data concerning a person's sex life or sexual orientation;

RemovedArticle 6 – paragraph 5 – point d a (new): (da) make use of mandatory biometric identification or disproportionate or undue surveillance of work performance;

RemovedArticle 6 – paragraph 5 – point d b (new): (db) under any circumstances provide for discriminatory practices when processing personal data;

RemovedArticle 6 – paragraph 5 – point d c (new): (dc) process personal data to predict, prevent or restrict the exercise of fundamental rights, in particular social rights, such as the right of association, the right of collective bargaining and action or the right to information and consultation;

RemovedArticle 6 – paragraph 5 – point d d (new): (dd) process biometrics-based data.

RemovedArticle 6 – paragraph 5 – subparagraph 1 a (new): The protection of personal data as referred to in this paragraph shall apply to all platform workers from the recruitment stages before the start of the employment relationship.

RemovedArticle 6 – paragraph 5 a (new): 5a. Digital labour platforms shall carry out a data protection impact assessment and shall seek the views of data subjects or their representatives on the intended processing. The assessment shall be carried out once, prior to the introduction of those processing operations and before any changes affecting working conditions, the organisation of work or monitoring work performance. The information contained in the impact assessment shall be presented in a concise, transparent, intelligible and easily accessible form, using clear and plain language, in order to allow platform workers and workers’ representatives to prepare, where necessary, for consultation.

RemovedArticle 6 – paragraph 5 b (new): 5b. Digital labour platforms shall inform platform workers and workers’ representatives about any transfer of personal data within a group of undertakings, or a group of undertakings engaged in a joint economic activity making use of automated monitoring systems.

RemovedArticle 6 – paragraph 5 c (new): 5c. Member States shall ensure that digital labour platforms provide platform workers with an interface and tools to facilitate effective, machine-readable data portability that is free of charge, including with regard to reputational data, the right to rectification, to erasure and to be forgotten, in accordance with Regulation (EU) 2016/679. Platform workers shall also have the right not to have those data transferred.

RemovedArticle 6 a (new): Article 6a / Confidential information / 1. Member States shall provide that, in the context of information and consultation processes and subject to the conditions and limits laid down by Union and national law and to objective criteria, representatives of persons performing platform work and any experts who assist them are not authorised to reveal any information which, in the legitimate interest of the undertaking or establishment, has expressly been provided to them in confidence. / This paragraph shall not apply to: / (a) communication between workers’ representatives and European, national or local works councils and the competent recognised trade union organisations on information that may affect the jobs or the working conditions of workers; / (b) information concerning elements that may affect the rights protected by this Directive. / 2. The digital labour platform shall specify to the workers’ representatives the objective criteria used to decide on the confidential nature of the information, as well as how long the confidentiality applies. Member States shall determine by law the list of such objective criteria and shall ensure that workers representatives have the possibility of reviewing the classification of a matter by means of an urgent administrative or judicial decision.

RemovedArticle 7 – title: Human oversight of automated systems

RemovedArticle 7 – paragraph -1 (new): -1. Member States shall ensure that digital labour platforms provide for human oversight of all decisions affecting working conditions.

RemovedArticle 7 – paragraph 1: 1. Member States shall ensure that digital labour platforms, with the involvement of workers’ representatives oversee and carry out an assessment, regularly and at least annually, of the impact of individual decisions taken or supported by automated monitoring and decision-making systems, as referred to in Article 6(1), on working conditions, health and safety and fundamental rights.

RemovedArticle 7 – paragraph 2 – subparagraph 1 – point a: (a) avoid the risks, or evaluate and combat the risks that cannot be avoided, of automated monitoring and decision-making systems to the safety and health of platform workers, including as regards possible risks of work-related accidents, psychosocial and ergonomic risks;

RemovedArticle 7 – paragraph 2 – subparagraph 1 – point a a (new): (aa) evaluate the risk of discrimination resulting from decisions taken by those systems, including in replicating gender, racial and other social biases in the selection and treatment of different groups;

RemovedArticle 7 – paragraph 2 – subparagraph 1 – point c: (c) introduce appropriate preventive, corrective and protective measures.

RemovedArticle 7 – paragraph 2 a (new): 2a. The impact assessment referred to in paragraph 1 shall include the matters referred to in paragraphs 1 and 2 and shall be submitted to the competent labour and data protection authorities, and to workers’ representatives.

RemovedArticle 7 – paragraph 2 b (new): 2b. If the impact assessment referred to in paragraph 1 finds risks to health and safety or fundamental rights that cannot be avoided nor mitigated, as referred to in paragraph 2, the digital labour platform shall immediately cease the use of the automated system.

RemovedArticle 7 – paragraph 2 c (new): 2c. Digital labour platforms shall not use automated monitoring and decision-making systems in any manner that puts undue pressure on platform workers or otherwise puts at risk the physical and mental health of platform workers.

RemovedArticle 7 – paragraph 3: 3. Member States shall require digital labour platforms to ensure sufficient human resources for effective oversight of the impact of individual decisions taken or supported by automated monitoring and decision-making systems in accordance with this Article. The persons charged by the digital labour platform with the function of carrying out the assessment referred to in this Article and of overseeing or reviewing decision-making taken or supported by automated monitoring or automated decision-making systems shall have the necessary competence, training and authority to exercise that function, including the possibility of intervening on and reverting those decisions. They shall enjoy protection from dismissal, disciplinary measures or other adverse treatment for overriding automated decisions or suggestions for decisions.

RemovedArticle 7 – paragraph 3 a (new): 3a. Where an impact assessment as referred to in paragraph 1 is found to be non-compliant with this Article, the relevant health and safety, data protection, labour and other competent authorities shall take coordinated measures to enforce those provisions.

RemovedArticle 8 – title: Human review of decisions significantly affecting working conditions

RemovedArticle 8 – paragraph 1 – subparagraph 1: Member States shall ensure that platform workers have the right to receive an explanation from the digital labour platform for any decision taken or supported by an automated decision-making system that significantly affects the platform worker’s working conditions, as referred to in Article 6(1), point (b). The explanation shall be presented in a transparent and intelligible manner, using clear and plain language in due time and at the latest on the first day of application of the decision. In particular, Member States shall ensure that digital labour platforms provide platform workers with access to a contact person designated by the digital labour platform to discuss and to clarify the facts, circumstances and reasons having led to the decision. Digital labour platforms shall ensure that such contact persons have the necessary competence, training and authority to exercise that function.

RemovedArticle 8 – paragraph 1 – subparagraph 2: Digital labour platforms shall provide the platform worker in due time and at the latest on the first day of application with a written statement of the reasons for any decision supported by an automated decision-making system to restrict access to work assignments, or to restrict, suspend or terminate the platform worker’s account, any decision to refuse the remuneration for work performed by the platform worker, any decision on the platform worker’s contractual status, any decision producing an effect on the agreed terms of the employment relationship or any decision with similar effects. Those decisions shall be taken in accordance with national law or practice and applicable collective agreements.

RemovedArticle 8 – paragraph 2 – subparagraph 1: Platform workers and workers’ representatives shall have the right to request the digital labour platform to review the decisions referred to in paragraph 1. The digital labour platform shall respond to such request by providing the platform worker with a sufficiently precise and adequately substantiated reply without undue delay and in any event within two weeks of receipt of the request.

RemovedArticle 8 – paragraph 2 – subparagraph 2: With regard to digital labour platforms which are micro, small or medium-sized enterprises, Member States may provide that that deadline is extended to one month.

RemovedArticle 8 – paragraph 3: 3. Where the decision referred to in paragraph 1 infringes the platform worker’s rights, the digital labour platform shall rectify that decision without delay or, where such rectification is not possible, provide adequate compensation, which shall be proportionate to the gravity of the infringement.

RemovedArticle 8 – subparagraph 4: 4. This Article shall be without prejudice to dismissal procedures or any other disciplinary procedures laid down in national law, practice or applicable collective agreements.

RemovedArticle 9 – paragraph 1: 1. Without prejudice to the rights and obligations under Directives 89/391/EEC, 2002/14/EC and 2009/38/EC, Member States shall ensure timely information and effective consultation of platform workers and workers’ representatives on decisions likely to lead to the introduction of or substantial changes affecting working conditions and health and safety in the use of automated monitoring and decision-making systems referred to in Article 6(1), in accordance with this Article. When defining or implementing practical arrangements for information and consultation, the digital labour platform and the workers’ representatives shall work in a spirit of cooperation and with due regard for their reciprocal rights and obligations, taking into account the interests both of the digital labour platform and of the workers.

RemovedArticle 9 – paragraph 2: 2. For the purposes of this Article, the definitions of ‘information’ and ‘consultation’ as laid down in Article 2, points (f) and (g), of Directive 2002/14/EC shall apply. The rules laid down in Article 4(1), (3) and (4), and Article 7 of Directive 2002/14/EC shall apply accordingly.

RemovedArticle 9 – paragraph 2 a (new): 2a. Digital labour platforms shall provide the information referred to in Article 6(1), (2), (5a) and (5b) and Article 7 to workers’ representatives with sufficient time as to allow a thorough examination and effective consultation. For newly deployed automated systems, the consultation shall take place prior to their use and before any changes affecting working conditions, the organisation of work or the monitoring of work performance.

RemovedArticle 9 – paragraph 3: 3. The platform workers representatives or the platform workers concerned may be assisted by an expert of their choice, in so far as this is necessary for them to examine the matter that is the subject of information and consultation and formulate an opinion. Where a digital labour platform has more than 250 workers in a Member State, the expenses for the expert shall be borne by the digital labour platform, provided that they are proportionate.

RemovedArticle 9 – paragraph 3 a (new): 3a. Information and effective consultation shall be ensured irrespective of the automated monitoring and decision-making systems being managed by the digital labour platform or a service provider which sells its management services to the platform.

RemovedArticle 10 – paragraph 1: 1. Articles 6, 7, 8 shall also apply to persons performing platform work who do not have an employment contract or employment relationship.

RemovedChapter III a (new) – title: Chapter IIIa / PROMOTION OF COLLECTIVE BARGAINING

RemovedArticle 10 a (new): Article 10a / Promotion of collective bargaining in platform work / 1. In accordance with national law and practice, Member States, with the involvement of the social partners, shall promote collective bargaining in platform work, including on the features of automated monitoring and decision-making systems, in order to improve working conditions, by all of the following: / (a) ensuring that digital labour platforms, taking into account the size and capacity of the undertaking concerned, provide workers’ representatives with relevant information in order to exercise their right to collective bargaining; / (b) ensuring that trade unions have the right to access platform workers, to meet and contact workers individually or collectively for the purpose of organising workers, negotiating on their behalf and representing them; / (c) providing measures in order to ensure that the right of collective bargaining and action is not undermined by any practice. / 2. This Directive shall be without prejudice to the full respect for the autonomy of the social partners, as well as to their right to negotiate and conclude collective agreements.

RemovedArticle 11 – paragraph 1: Without prejudice to Regulations (EC) No 883/200469 and 987/200970 of the European Parliament and of the Council, Member States shall require digital labour platforms to declare work performed by platform workers to the competent labour, tax and social protection authorities of the Member State in which the work is performed, to inform those authorities of work performed by persons performing platform work, and their employment status and to share relevant data with those authorities, in accordance with the rules and procedures laid down in the law of the Member States concerned, also in order to comply with their fiscal and social protection obligations in accordance with national law or practice.

RemovedArticle 12 – paragraph 1: 1. Where labour, health and safety, social protection and other relevant authorities exercise their functions in ensuring compliance with legal obligations applicable to the employment status of persons performing platform work and where the representatives of persons performing platform work, exercise their representative functions, Member States shall ensure that digital labour platforms make the following information available to them, regardless of the country in which the platform is established: / (a) the number of persons performing platform work through the digital labour platform concerned and their contractual or employment status; / (aa) a copy of the employment contracts, in accordance with Regulation (EU) 2016/679; / (b) the general terms and conditions applicable to those contractual relationships; / (ba) the average duration of activity, the average weekly number of hours worked per person and the average income from activity of persons performing platform work on a regular basis through the digital labour platform concerned.

RemovedArticle 12 – paragraph 3: 3. Labour, social protection and other relevant authorities and representatives of persons performing platform work shall have the right to ask digital labour platforms for additional clarifications and details regarding any of the data provided. The digital labour platforms shall respond to such request by providing a substantiated reply without undue delay and in any event within one month of receipt of the request. That deadline shall be extended to two months for micro and small enterprises.

RemovedArticle 12 a (new): Article 12a / Cooperation in cross-border cases / 1. The competent labour, social protection and tax authorities shall exchange information with respect to persons performing platform work in a Member State different from that in which the digital labour platform is established. To that end, competent national authorities shall be able to rely on existing relevant systems for exchange of information, including the Commission’s Internal Market Information System and EURES. / 2. Without prejudice to Regulation (EU) 2019/1149, for cases having a cross-border relevance, the European Labour Authority shall facilitate and support cooperation between the competent national authorities in charge of monitoring the enforcement of labour mobility and social security coordination legislation, as well as to support cooperation between Member States in tackling undeclared work, facilitate access to information on rights and obligations regarding labour mobility across the Union, including those stemming from Union law, promote effective cooperation and exchange of information between Member States, and coordinate and support concerted and joint inspections, where requested by one or more Member States.

RemovedArticle 12 b (new): Article 12b / Subcontracting liability / 1. Member States shall, after consulting the relevant social partners in accordance with national law and practice, provide for measures to ensure that in subcontracting chains persons performing platform work have an effective remedy whereby the digital labour platform of which the employer is a subcontractor can be held liable, in addition to or in the place of the employer, for any infringement of the platform workers' rights provided for in this Directive, including with respect to any outstanding remuneration and contributions due to the common funds or institutions of the social partners. / 2. The liability of digital labour platforms under this Article shall be limited to worker's rights acquired during the contractual relationship between the contractor and the subcontractor. / 3. Member States may, in accordance with Union law, provide for more stringent liability rules under national law on a non-discriminatory and proportionate basis with regard to the scope and range of subcontracting liability. / 4. Without prejudice to paragraphs 1, 2 and 3, Member States may take other appropriate enforcement measures, in accordance with Union and national law and practice, which provide for, in a subcontracting relationship, effective and proportionate penalties against the contractor, to tackle fraud and abuse in situations when workers have difficulties in obtaining their rights.

RemovedArticle 13 – paragraph 1: 1. Without prejudice to Articles 79 and 82 of Regulation (EU) 2016/679 and Article 13 of Directive 2009/52/EC, Member States shall ensure that persons performing platform work, including those whose employment or other contractual relationship has ended, have access to appropriate, timely, , effective and impartial dispute resolution and a right to redress, including adequate compensation, in the case of infringements of their rights arising from this Directive. Access to such dispute resolution and right to redress shall be free of charge, at least for workers who do not have sufficient means.

RemovedArticle 13 – paragraph 1a (new): 1a. Member States shall ensure that persons performing platform work have the right to lodge a complaint with the competent supervisory authority.

RemovedArticle 14 – paragraph 1: 1. Without prejudice to Article 80 of Regulation (EU) 2016/679 and Article 13 of Directive 2009/52/EC, and in accordance with Directive 2002/14/EC, Member States shall ensure that representatives of persons performing platform work or other legal entities which have, in accordance with the criteria laid down by national law or practice, a legitimate interest in defending the rights of persons performing platform work, may engage in any judicial or administrative procedure to enforce any of the rights or obligations arising from this Directive. They may act on behalf or in support of a person performing platform work in the case of an infringement of any right or obligation arising from this Directive, with that person’s approval where relevant and in accordance with national law or practice.

RemovedArticle 14 – paragraph 2: 2. Representatives of persons performing platform work shall also have the right to act on behalf or in support of several persons performing platform work, in accordance with national law or practice.

RemovedArticle 14 – paragraph 2 a (new): 2a. Paragraphs 1 and 2 shall apply without prejudice to the competences of trade unions as set out in national law or practice.

RemovedArticle 14 – paragraph 2 b (new): 2b. Paragraphs 1 and 2 shall apply without prejudice to national rules of procedure concerning representation and defence in court proceedings.

RemovedArticle 15 – title: Communication and reporting channels for persons performing platform work

RemovedArticle 15 – paragraph 1: 1. Member States shall take the necessary measures to ensure that digital labour platforms create the possibility for persons performing platform work to contact and communicate privately and securely with each other, and to be contacted by trade unions and representatives of persons performing platform work, through the digital labour platforms’ digital infrastructure or similarly effective means in visible and immediately accessible way, while complying with the obligations under Regulation (EU) 2016/679. Member States shall require digital labour platforms to refrain from accessing such channels other than for their functional maintenance or from accessing or monitoring those contacts and communications.

RemovedArticle 15 – paragraph 1 a (new): 1a. In order to safeguard persons performing platform work from violence, including gender-based violence and harassment, Member States shall take the necessary measures to ensure that digital labour platforms develop policies against violence and harassment and take preventative measures, in particular by creating, with the involvement of representatives of persons performing platform work, effective reporting channels through the digital labour platforms, digital infrastructure or similarly effective means, while complying with the obligations under Regulation (EU) 2016/679. Digital labour platforms shall ensure that the privacy of those individuals and the confidentiality of the reports are duly protected. Member States shall require digital labour platforms to have effective and timely preventative and protective measures and investigation mechanisms to address such reports.

RemovedArticle 16 – paragraph 1: 1. Member States shall ensure that in proceedings concerning the provisions of this Directive, national courts or competent authorities are able to order the digital labour platform to disclose any relevant evidence which lies in their control, irrespective of where the digital labour platform is established and of whether the automated monitoring and decision-making systems is managed by the digital labour platform or a service provider which sells its management services to the platform.

RemovedArticle 17: 1. Member States shall introduce the measures necessary to protect persons performing platform work, including those who are their representatives, from any adverse treatment by the digital labour platform and from any adverse consequences resulting from a complaint lodged with the digital labour platform resulting from any proceedings initiated with the aim of enforcing compliance with the rights provided for in this Directive. / 1a. Digital labour platforms shall refrain from any act or omission that could directly or indirectly undermine the right of association or to join a trade union or the right of collective bargaining and action, or which discriminates against workers and trade union representatives who participate or wish to participate in collective bargaining.

RemovedArticle 18 – paragraph 1: 1. Member States shall take the necessary measures to prohibit the dismissal or its equivalent, and all preparations for dismissal or its equivalent, including a suspension of the account, of persons performing platform work, on the grounds that they have exercised the rights provided for in this Directive.

RemovedArticle 19 – paragraph 1: 1. The supervisory authority or authorities responsible for monitoring the application of Regulation (EU) 2016/679 shall also be responsible for monitoring the application of Article 6, Article 7(1) and (3) and Articles 8, 10 and 15 of this Directive, in accordance with the relevant provisions in Chapters VI, VII and VIII of Regulation (EU) 2016/679, together with national labour authorities. The supervisory authority or authorities responsible for monitoring the application of Regulation (EU) 2016/679 shall be competent to impose administrative fines up to the amount referred to in Article 83 (4), (5) and (6) of that Regulation.

RemovedArticle 19 – paragraph 2: 2. The authorities referred to in paragraph 1 and national social protection authorities shall, where relevant, cooperate in the enforcement of this Directive, within the remit of their respective competences, in particular where questions on the impact of automated monitoring and decision-making systems on working conditions or on rights of persons performing platform work arise. For that purpose, those authorities shall exchange relevant information with each other, including in cross-border situations and including information obtained in the context of inspections or investigations, either upon request or at their own initiative.

RemovedArticle 19 – paragraph 3: 3. Member States shall lay down the rules on penalties, including financial penalties, applicable to infringements of national provisions adopted pursuant to provisions of this Directive other than those referred to in paragraph 1 or of the relevant provisions already in force concerning the rights which are within the scope of this Directive. The penalties provided for shall be effective, proportionate and dissuasive.

RemovedArticle 19 – paragraph 3 a (new): 3a. The penalties referred to in paragraph 3 shall include financial penalties that are proportionate to the nature, gravity and duration of the undertaking’s infringement and which shall increase in amount according to the number of affected employees. / In the case of infringements related to digital labour platforms’ refusal to comply with a legal ruling determining the employment status of persons performing platform work, Member States shall provide for significant financial penalties, equivalent to those related to infringements of Regulation (EU) 2016/679, which may include setting a percentage of the digital labour platform’s total annual turnover in the preceding financial year.

RemovedArticle 19 – paragraph 3 b (new): 3b. The penalties referred to in paragraph 3 may, where appropriate, include: / (a) orders excluding the undertaking from an entitlement to some or all public benefits, aids or subsidies, including Union funds managed by the relevant Member States, for a period of up to three years; / (b) orders excluding the undertaking from participating in a public contract as defined in Directive 2014/24/EU of the European Parliament and of the Council1a. / 1a Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ L 94, 28.3.2014, p. 65).

RemovedArticle 20 – paragraph 2: 2. This Directive shall not affect the Member States’ prerogative to apply or to introduce laws, regulations or administrative provisions which are more favourable to platform workers, or to encourage or permit the application of collective agreements which are more favourable to platform workers, in line with the objectives of this Directive.

RemovedArticle 20 a (new): Article 20a / Dissemination of information / Member States shall ensure that the national measures transposing this Directive, together with the relevant provisions already in force relating to the subject matter as set out in Article 1, are brought to the attention of persons performing platform work and digital labour platforms, including SMEs as well as to the general public. That information shall be provided in a comprehensive and easily accessible way, including to persons with disabilities and where necessary in the most relevant language(s), as determined by the Member State concerned.

RemovedPlatform work is one of the key transformations that digital technologies are bringing to labour markets across the world. Several sectors are shifting to the labour platform economy, from transportation to proximity services to creative industries. The Covid-19 pandemic accelerated this trend, promoting sectors that were already moving towards platform work such as food delivery. Data reflects such a trend: according to the Commission estimates, over 28 million people in the EU are involved in platform work, and by 2025 this number will rise to 43 million.

RemovedThe flexibility and exponential growth of platform work however risk, without proper regulation of the phenomenon, to bring about precarious working conditions, at the expenses of the people performing that work. Evidence across the EU shows that people performing platform work often do not enjoy the same rights as workers in the traditional economy, as they are even not recognised as such, even if facts would prove it and, because of the conditions raising for platform work organisation, involving algorithmic management, are particularly subject to exploitation. Therefore, this Directive aims at ensuring that developments brought about by new technologies do not hamper the rights that workers in the EU rightly obtained over the past decades.

RemovedEmployment status

RemovedFirst of all, the employment status of people performing platform work too often does not match their working conditions. The misclassification of the employment relationship has been a major driver of Court cases across the EU, trying to determine the appropriate employment status of workers on the basis of their tasks and the degree of control and supervision that the platform exercises on them. Most Courts found that the workers under trial were bogus self-employed, meaning that they signed a self-employment contract with the labour platform, but they - as a matter of fact - were proven to have the working conditions of an employment relationship. Facts were therefore telling a different story from the formal relationship between them and the platform. Bogus self-employment combines the worst of both worlds, as those people do not enjoy the independence of self-employment in determining their clients, pay and work organisation, but still carry the business risk of the labour platform while not enjoying the rights and protection assigned to workers in an employment relation. The issue of misclassification is a concern as well for the level-playing field in the Single Market, as platforms making use of bogus self-employment incur in lower labour costs than their competitors, using a legal vacuum in the regulation of platform work. It is important to note that platform work is a complex phenomenon, and many people performing platform work, especially among the high skilled ones, are correctly classified as self-employed. The purpose of the first part of this directive and draft report is therefore to avoid misclassification of the employment status of people performing platform work. In light of that risk, introducing a rebuttable legal presumption of the employment relation is the best way to address the issue in order to protect workers’ rights and provide them with the appropriate employment status, while not touching at the genuine self-employed. At the same time, this will ensure the respect on behalf of the platforms of fiscal duties and social security schemes in case they are recognized as employers, while providing for fair competition in the Union. In order not to introduce discrimination among comparable businesses and to ensure that the Directive reaches its objectives and is properly enforced, it is essential that the definition of digital labour platform mirrors the effective reality and variety of platforms.

RemovedBogus self-employment in the platform economy leads to precariousness, low pay, security risks, and the denial of all the rights stemming from the employment status, social protection included. Often workers taking up these jobs come from vulnerable backgrounds and absolutely need the extra income because their first job does not pay enough, and they do not even dare questioning their employment status.

RemovedAuthorities applying the legal presumption will receive appropriate guidance and Member States will establish procedures in order to identify swift and smooth processes, reduce litigation while avoiding capturing the genuine self-employed. Labour inspectorates or organisations enforcing labour law will receive adequate trainings in the relevant technological field, allowing them to effectively fulfil their duties. The possibility to rebut the legal presumption will always be assured to platforms challenging it and the burden of the proof will consequently be on them. The final judgement will be based on facts and not on formalities. This procedure is the most effective and fair because the worker is the weakest side in the litigation, and the full knowledge of the business model and the functioning of the algorithm is in the hands of the platforms.

RemovedAlgorithmic management

RemovedWhile across the EU collective bargaining or labour regulations set the labour standards in the traditional economy, people performing platform work accept working conditions unilaterally set by platforms through automated and semi-automated monitoring and decision-making systems, and are sometimes not even in the situation to recognise an abuse. Indeed, they are not aware of the functioning of the algorithm and the decisions it takes regarding their working time, the clients they are assigned, the evaluation of their performance, their health and security guarantees and even access to work. As of today, the majority of platforms employ little human oversight of the decisions taken by their algorithm and there are no uniform and clear provisions determining control on compliance of those systems neither with data protection regulations, nor with respect to their impact on health and safety. Moreover, algorithmic management is not an issue regarding exclusively digital labour platforms, as more and more employers today adopt algorithmic tools to supervise, monitor and control workers. That is the reason why a rich chapter of the Report is dedicated to establish a set of rules protecting all workers from abusive algorithmic management practices throughout the Union.

RemovedIt appears immediately clear how this chapter is highly relevant not only for people performing platform work (independently of their employment status) but for every worker whose working conditions are affected by those systems. Indeed, the pandemic has even accelerated the so called phenomenon of “platformisation” of the economy, which refers to the increasing use of those systems in order to organise and control work also far beyond platform business. The provisions introduced in this section applies therefore to all workers affected by automated or semi-automated monitoring and decision-making systems information. Workers dealing with algorithmic management and their representatives have to be informed in advance of all elements affecting working conditions and health and security at work, so as to give them the opportunity to understand the functioning of the algorithm and to collectively bargain on it. All decisions impacting on those terms are to be taken by human beings, and, in parallel, human oversights on decisions taken by the algorithm has to be granted. At the same time, platforms have to guarantee that the protection of data of people performing platform is fully respected and that the algorithm does not access or collect data which are not primarily linked to the performance of work.

RemovedTransparency and remedies concerning platform work

RemovedThe sparse nature of platform work makes it difficult for platform workers to come together and act collectively to improve their situation. Unionising has been actively discouraged by some labour platforms who depend on bogus self-employment for their business model.

RemovedPlatform work is then a very difficult phenomenon to capture as there is no evident workplace and very often persons working for the same platform are not aware of each other. This constitutes an issue not only for those people but also for national authorities, especially tax and social protection public institutions. Once the employment relationship is recognised as subordinate employment, the platform will be recognised as undertaking and therefore all applicable legislation and provisions stemming from collective agreements linked to the sector of activity will apply. Indeed, the last part of the draft Report is focused on transparency in platform work and remedies, which are needed in light of the above-mentioned nature of platform work.

Removed5.10.2022