Changes from report parliamentary committee draft to plenary report

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

▸5 unchanged paragraphs

on the proposal for a directive of the European Parliament and of the Council improving working conditions in platform work

(COM(2021)0762 – C90454/2021 – 2021/0414(COD))

(Ordinary legislative procedure: first reading)

The European Parliament,

– having regard to the Commission proposal to Parliament and the Council (COM(2021)0762),

Changed– having regard to Article 294(2) and Article 153(2), point (b), in conjunction with Article 153(1), point (b), and Article 16(2) of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C9C9-0454/2021),(C9-0454/2021),

– having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

– having regard to Rule 59 of its Rules of Procedure,

Changed– having regard to the reportopinion of the Committee on EmploymentTransport and Social Affairs (A90000/2022),Tourism,

Added– having regard to the report of the Committee on Employment and Social Affairs (A9-0301/2022),

Added– having regard to the Commission Staff Working Document Impact Assessment Report (SWD(2021)0396);

1. Adopts its position at first reading hereinafter set out;

2. Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Change 1

RemovedTitle 1: on improving working conditions in platform work and work subject to automated or semi-automated monitoring and decision-making systems

AddedRecital 1: (1) Pursuant to Article 3 of the Treaty on European Union, the objectives of the Union are, amongst others, to promote the well-being of its peoples and to work for the sustainable development of Europe based on a balanced economic growth and a highly competitive social market economy, aiming at full employment and social progress.

Change 2

ChangedRecital 2: (2) This Directive respects fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union (‘the Charter’). In particular, Article 31 of the Charter provides for the right of every worker to fair and just working conditions which respect his or her health, safety and dignity. Article 27 of the Charter protects the workers’ right to information and consultation within the undertaking. Article 8 of the Charter provides that everyone has the right to the protection of personal data as well as access to data which has been collected concerning him or her.her and the right to have it rectified. Article 12 of the Charter provides that everyone has the right to freedom of assembly and of association at all levels. Article 15 of the Charter recognises that everyone has the right to engage in work and to pursue a freely chosen or accepted occupation as well as to provide services. Article 16 of the Charter recognises the freedom to conduct a business. Article 21 of the Charter provides for the right to non-discrimination.

Change 3

ChangedRecital 3: (3) Principle No 5 of the European Pillar of Social Rights (Pillar),(the ‘Pillar’), proclaimed at Gothenburg on 17 November 201753 ,201753, provides that, regardless of the type and duration of the employment relationship, workers have the right to fair and equal treatment regarding working conditions, access to social protection and training; that, in accordance with legislation and collective agreements, the necessary flexibility for employers to adapt swiftly to changes in the economic context is to be ensured; and that innovative forms of work that ensure quality working conditions are to be fostered, that entrepreneurship and self-employment are to be encouraged;encouraged and that occupational mobility is to be facilitatedfacilitated, thus reaffirming the right under Article 15 of the Charter, and that employment relationships that lead to precarious working conditions are to be prevented, including by prohibiting the abuse of atypical contracts. The Porto Social Summit of May 2021 welcomed the Action Plan accompanying the Social Pillar54 as guidance for its implementation.

Change 4

ChangedRecital 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, including workers subject to a probation period, that prior to any dismissaldismissal, theyworkers have the right to be informed of the reasons and be granted a reasonable period of notice,notice and that they have the right to access to effective and impartial dispute resolution and, in thecasethe 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.

Change 5

ChangedRecital 4: (4) Digitalisation is changing the world of work, improving productivity and enhancing flexibility,flexibility. whileInnovation 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 carryingposes 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 privacyprivacy, as well as for the effective applicationimplementation of applicable national labour and tax law.law thereby also putting the solidarity based social protection system for current and future generations under pressure. Algorithm-based technologies, including automated and semi-automated monitoring and decision-making systems, have enabled the emergence and growth of digital labour platforms.platforms However,but thecan architecture,produce orpower theimbalances businessand modelopacity design,about ofdecision-making, digitalas labourwell platformsas hastechnology-enabled significantsurveillance consequenceswhich forcould workersexacerbate anddiscriminatory certainpractices choicesand implementedentail byrisks digitalfor labourprivacy, platformsworkers´ tohealth createand asafety successfuland businesshuman modeldignity mayand inadvertentlymay lead to adverse consequences for working conditions and workerthe exploitation.exploitation ofworkers.

Change 6

ChangedRecital 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 control,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 workerspersons themselves while performing work and, in some cases, also outside their working time. Platformtime, workin isbreach usuallyof performedRegulation exclusively(EU) online2016/679 throughof electronicthe toolsEuropean (‘onlineParliament platformand work’)of orthe inCouncil1a aand hybridnational waydata combiningprotection anlaw. onlineTraditional communicationregulated processliberal withprofessions aare subsequentin activityprinciple infree thefrom physicalsupervision, worlddirection (‘on-locationand platformcontrol work’).from Manyany ofother theundertaking. existingPlatform digitalwork labouris platformsmostly areperformed internationalexclusively businessonline actorsthrough deployingelectronic theirtools activities(‘online andplatform businesswork’) modelsor in severala Memberhybrid Statesway orcombining acrossan borders.online communication process with a subsequent activ…

Change 7

ChangedRecital 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 likely to restrict access to existing labour and social rights. It can also leadslead to labour exploitation, unfair competition, socialin dumpingparticular 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…

Change 8

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 control or supervision 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 or supervision 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.

AddedRecital 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 8: (8) Automated or semi-automated monitoring and decision-making systems powered by algorithms increasingly replace functions that managers usually perform in businesses, such as allocating tasks, giving instructions, evaluating the work performed, providing incentives or imposing sanctions. Digital labour platforms in particular use such algorithmic systems as a standard way of organising and managing platform work through their infrastructure. However, automated or semi-automated monitoring and decision-making systems powered by algorithms are also used by other types of undertakings in many different sectors. Persons performing work subject to such algorithmic management often lack information on how the algorithms work, which personal data are being used and how their behaviour affects decisions taken by automated or semi-automated systems. Workers’ representatives and labour inspectorates do not have access to this information either. Moreover, persons performing platform work and workers whose organisation of work or working conditions are subject to automated or semi-automated monitoring and decision-making systems often do not know the reasons for decisions taken or supported by automated or semi-automated systems and lack the possibility to discuss those decisions with a contact person or to contest them.

AddedRecital 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 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. Also, national authorities do not have easy access to data on digital labour platforms, including the number of persons performing platform work, their employment status, and their working conditions. This complicates the enforcement of applicable rules, including in respect of labour and tax law and social protection.

AddedRecital 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 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 are complemented by particularly relevant case-law of the Court of Justice of the European Union finding that ‘stand-by’ time, during which the worker's opportunities to carry out other activities are significantly restricted, are to be regarded as working time57aa(. While those instruments provide a level of protection to workers, they do not apply to the genuine self-employed. / 57a Judgment of the Court of 21 February 2018 in Ville de Nivelles v Rudy Matzak, C-518/15, ECLI: EU:C:2018:82; confirmed and elaborated in the judgments of 9 March 2021 in RJ v Stadt Offenbach am Main, C-580/19, ECLI:EU:C:2021:183; and 9 March 2021 in -D.J. v Radiotelevizija Slovenija, C-344/19, ECLI:EU:C:2021:182.

AddedRecital 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 12: (12) Regulation (EU) 2016/679 of the European Parliament and of the Council59 (‘General Data Protection Regulation’) ensures 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 or semi-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 .

AddedRecital 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 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 workers’ fundamental rights. Persons performing platform work in the Union should be provided with a number of minimum rights aiming at ensuring correct determination of their employment status as well as fair and just working conditions, at promoting transparency, fairness, accountability, and preventing health and safety risks in algorithmic management, and at improving transparency in platform work, including in cross-border situations. This should be done with a view to improving legal certainty, creating a level playing field between digital labour platforms and offline providers of services and supporting the sustainable growth of digital labour platforms in the Union.

AddedRecital 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 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 or semi-automated monitoring and decision-making systems.

AddedRecital 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 15: deleted

AddedRecital 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 16 a (new): (16a) This Directive should apply, for the provisions on algorithmic management, to all workers subject to automated or semi-automated monitoring and decision-making systems in relation to their working conditions or the organisation of their work.

AddedRecital 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 17: (17) This Directive should apply to all digital labour platforms, irrespective of their place of establishment and irrespective of the law otherwise applicable, provided that the platform work organised through that digital labour platform is performed in the Union. A targeted set of mandatory rules should be established at Union level to ensure minimum rights and working conditions in platform work.

AddedRecital 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 18: (18) Digital labour platforms differ from other online platforms in that they organise work or intermediate in the organisation of work performed by individuals at request, one-off or repeated, involving computer programs and procedures. 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 and who is available to perform a specific task, and can include other activities such as processing payments. Online platforms which do not organise the work performed by individuals but merely provide the means by which service providers can reach the end-user, for instance by advertising offers or requests for services or aggregating and displaying available service providers in a specific area, without any further involvement, should not be considered a digital labour platform. The definition of digital labour platforms should not include providers of a service whose purpose is to exploit or share assets, such as short-term rental of accommodation.

AddedRecital 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 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 the employer itself in the interests of the employer rather than those of the workers, particularly serious in platform work. Such company trade unions or workers’ representatves are contrary to Article 2 of International Labour Organization (ILO) Convention No 98 and and to Directive 2002/14/EC of the European Parliament and of the Council1a. 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 will ensure, together with the most representative trade unions, that elections for workers’ representatives comply with fundamental rights and freedoms and are in line with applicable national law and practices. / 1a Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community (OJ L 80, 23.3.200…

AddedRecital 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 18 b (new): (18b) 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 inline with the ILO Conventions (in particular Convention 87 on Freedom of Association and Protection of the Right to Organise, ILO Convention 98 on the Right to Organise and Collective Bargaining, and having due regard to ILO Convention 135 on Workers’ Representatives, ILO Convention 151 on Labour Relations (Public Service), ILO Convention 154 on Collective Bargaining and the related ILO Recommendations, as well as the Council of Europe’s European Social Charter.

AddedRecital 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 19: (19) A person performing platform work is either a platform worker or a self-employed. To combat false self-employment in platform work and to facilitate the correct determination of the employment status, Member States should have appropriate procedures in place to prevent and address misclassification of the employment status of persons performing platform work, including proper compensation and the payment of any outstanding remuneration, taxes and social security contributions due to the misclassification. The aim of those procedures should be to ascertain the existence of an employment relationship as defined by national law, collective agreements or practice with consideration to the case-law of the Court of 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 is the correct employment status, rights and obligations pursuant to that status should apply.

AddedRecital 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 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. Such persons should fall within the scope of this Directive.

AddedRecital 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 22: (22) Where the existence of an employment relationship is established based on facts, the party acting as employer should be clearly identified and that party should fulfil all the obligations resulting from its role as employer and comply with national law and collective agreements linked to the relevant sector of activity.

AddedRecital 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 22 a (new): (22a) Experience has shown that the existing Member States’ sanctions have not been sufficient to achieve full compliance with prohibitions against the use of false self-employment employment. One of the reasons is that administrative sanctions alone are likely not to be enough to deter certain unscrupulous employers. Compliance can and should be strengthened by the application of effective and dissuasive sanctions, which could imply the suspension of the operating licence in cases of persistent infringements or particularly exploitative working conditions. Particularly exploitative working conditions means working conditions, including those resulting from gender-based or other discriminations, where there is a striking disproportion compared with the terms of employment of legally employed workers which, for example, affects workers’ health and safety, fundamental rights and which offends against human dignity.

AddedRecital 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 22 c (new): (22c) Member States should be encouraged to 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 determine the correct classification of workers.

AddedRecital 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 22 d (new): (22d) 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.

AddedRecital 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.