Changes from report parliamentary committee draft to plenary report

RemovedRecital 22 e (new): (22e) 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 workers. In order to prevent the misuse of subcontracting by the digital labour platforms to circumvent this Directive, it is necessary to ensure that at least the contractors of which the employer is a subcontractor may be considered to be the true employer and therefore held liable to pay wages, social security contributions and financial sanctions 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 Council1a. / 1a Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals (OJ L 168, 30.6.2009, p. 24).

AddedRecital 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 22 f (new): (22f) It is necessary to introduce enforcement provisions which ensure the use of favourable presumptions in cases of misclassification of workers when reclassifying them, including a presumption that the worker has an open-ended employment relationship, that there is no probationary period and that the worker has a full-time position in the undertaking.

AddedRecital 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 g (new): (22g) The use of undeclared work in delivery platforms has been evidenced in several Member States. This practice is carried out through rented identities: platform workers or people with the right to work who registers in the platform rent their accounts mainly to undocumented migrants and to minors. In order to prevent this illegal practice and protect the potential victims from labour exploitation, provisions on subcontracting chains in platform work are needed, so that all those in the chain can be held accountable as well as ensuring the right to redress also for undocumented migrants. Member States should provide that undocumented migrants can have access to justice without fearing any retaliation or risk of deportation, also in accordance with Directive 2009/52/EC. This might require the establishment of a division between enforcement of labour legislation and mechanisms of migration control.

AddedRecital 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.

Change 9

ChangedRecital 23: (23) Ensuring correct determination of the employment status should not prevent the improvement of working conditions of genuinegenuinely self-employed persons performing platform work. MemberCollective Statesbargaining shouldis takea particularkey caretool inby theirwhich nationalto policiesimprove tothe ensureworking effectiveconditions protectionof topersons workersperforming especiallyplatform affectedwork, irrespective of the contractual designation of the relationship and should be encouraged by the uncertaintyCommission 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 existencescope and form of ancollective employmentrepresentation relationship,and includingprovided 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.

Change 10

ChangedRecital 24: (24) When digital labour platforms supervise or exert some sort of control onover 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. ThereforeTherefore, the contractual relationships between workerspersons performing platform work and athe digital labour platform should be deemed, by virtue of a legal presumption, to be an employment relationship between the platform and the personrelationship. performingNational platformauthorities workare throughto it,apply unlessthe itpresumption canwhen bethey provenconsider that thethere platformmight doesbe notincorrect superviseclassification of exertpersons anyperforming sortplatform ofwork. controlThe overpresumption anyshould elementsalso linkedbe toapplied thewhen performancea ofperson work.performing Theplatform presumptionwork shouldor bea legallytrade basedunion onacting theon platformbehalf supervisingor thein performancesupport of work, whereseveral supervisionpersons shouldperforming beplatform meantwork indispute antheir extensiveclassification andin evolutionaryadministrative way,or alsolegal inproceedings. relationThe tolegal thepresumption evolvingshould featuresapply ofin automatedall orrelevant semi-automatedadministrative monitoringprocedures and decision-making systemsadministrative and encompassing sanctioning systems (also throughlegal ranking).proceedings Asand ashould result,benefit thatthe person shouldperforming beplatform classifiedwork. asAuthorities ain workercharge havingof allverifying the rights andcompliance obligationswith inor accordanceenforcing withrelevant thatlegislation, status,such as laidlabour downinspectorates, insocial nationalprotection andbodies Unionor law,tax collectiveauthorities, agreementsshould andapply practice.the Thepresumption. legalMember presumptionStates should applyput in all relevant administrativeplace proceduresa andnational administrativeframework andto legalreduce proceedingslitigation and shouldincrease benefitlegal thecertainty personthat performingensures platformthe work.correct Authoritiesclassification inof chargepersons ofperforming verifyingplatform thework compl…f…

Change 11

ChangedRecital 25: (25) The authorities and competent institutions applyingdetermining, based on an objective assessment, the legalcorrect presumptionclassification shouldof bepersons guidedperforming byplatform factualwork elementsregarding indicatingthe thatexistence of an employment relationship as defined by the digitalapplicable labourlaw, platformcollective supervisesagreements or exertpractice somein controlforce overin the performance ofMember workState in orderquestion, with consideration to facilitatethe case-law of the enforcementCourt of workers’Justice, rights.should be guided by factual elements indicating that the digital labour platform exerts control and direction over the performance of work. Those elements areshould 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 are therefore inits constant evolution, also following the evolution of automated or semi-automated monitoring and decision-making systems. Among the concrete elements that can indicate that the digital labour platform supervises orexerts exertcontrol someand controldirection 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, orboth; issues periodic paymentpayments to the worker; requires the respect of remunerationrules with regard to theappearance worker;or conduct; gives instructions on how the work is to be performed orperformed; prevents the person performing platform work from developing business contacts with potential clients; supervises the performance of work or verifies the quality of the work,clients, including by electronic means,via thatcontrolling leadsor torestricting the final result; tracks orcommunication monitorbetween the person performing platform work; enforces the performance through penalties, including restricting access to work, or uses customer rating systems as a tool of control and basis for penalties; relies onwork meas…a…

Change 12

RemovedRecital 25 a (new): (25a) The existence of a collective agreement signed by one or several digital labour platforms and representatives of self-employed workers does not preclude the existence of an employment relationship. This will not in any way prevent the application of the legal presumption of employment relationship in line with this Directive.

AddedRecital 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.

Change 13

ChangedRecital 26:26 (26)a Effective(new): implementation(26a) ofIn theorder legalto presumptionensure throughthat appropriatelabour measures,inspections suchare ascarried disseminatingout informationeffectively, toMember theStates public,should developinghave guidancesufficient labour inspectors, in accordance with ILO Convention No 81 on Labour Inspection and strengtheningILO controls,Report cooperationIII betweenon differentthe 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 authoritiestarget andfor fieldthe inspectionsnumber isof essentialinspections to ensurebe legalcarried certaintyout andin transparencyrespect forof allthe partiessectors involved.of Nextactivity in which digital labour platforms operate in order to that,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 correctverify the misclassification that possiblystatus concernof the other persons performing platform work for the same digital labour platform.

Change 14

RemovedRecital 27: (27) In the interest of legal certainty, the legal presumption should not have any retroactive legal effects before the transposition date of this Directive and should therefore only apply to the period starting from that date, 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.

AddedRecital 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 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 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. Legal proceedings and administrative proceedings initiated by the digital labour platforms in order to rebut the legal presumption should not have a suspensive effect on the application of the legal presumption. 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 relevant information held by the platform in respect of that person.…

AddedRecital 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 29: (29) While Regulation (EU) 2016/679 establishes the general framework for the protection of natural persons with regard to the processing of personal data, it is necessary to lay down rules addressing the concerns that are specific in the processing of personal data in the context of platform work and work subject to automated or semi-automated monitoring and decision-making systems. This Directive provides for more specific rules in the context of platform work and work subject to those systems, 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. In this context, terms relating to the protection of personal data in this Directive should be understood in light of the definitions set out in Regulation (EU) 2016/679.

AddedRecital 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 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 prohibits the processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person's sex life or sexual orientation and allows Member States to maintain or introduce further conditions, including limitations, with regard to the processing of genetic data, biometric data or data concerning health. 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 the rights to rectification, to erasure, to restriction of processing of data, to data portability and to object 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 or semi-automated processing, including profiling, which produces legal effects concerning him or her or similarly significantly affects him or her, subject to the exceptions provided for in paragraph 2 of that art…

AddedRecital 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 a (new): (30a) The use of algorithmic scheduling systems heightens the use of precarious, short shifts and unstable and unpredictable schedules. 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.

AddedRecital 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 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 for 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 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 also establishes that those rules are to include suitable and specific measures to safeguard the data subject's human dignity, legitimate interests and fundamental rights, with particular regard to the transparency of processing, the transfer of personal data within a group of unde…

AddedRecital 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 32: (32) Digital labour platforms and any other undertaking should be subject to transparency obligations in relation to automated or semi-automated monitoring and decision-making systems that are used to monitor, supervise or evaluate the work performance through electronic means or to monitor the workers themselves; and automated or semi-automated decision-making systems which are used to take or support decisions that affect working conditions, including access of persons performing platform work or subject to these systems when performing their work to work assignments, their earnings, their occupational safety and health, their working time, their promotion, their 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 concerning such systems should also be provided where decisions are not solely based on automated or semi-automated processing, provided that they are supported by automated or semi-automated systems. It should also be specified which kind of information should be provided to persons performing platform work or subject to these systems when performing their work regarding such automated or semi-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 pro…

AddedRecital 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 a (new): (32a) The type of processing of data in digital labour platforms and other undertakings using automated or semi-automated monitoring and decision-making systems is likely to 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 is to seek the views of data subjects or their representatives on the intended processing, without prejudice to the protection of commercial or public interests or the security of processing operations. That consultation should be carried out in an appropriatemanner and with appropriate content to enable, in particular, workers' representatives to conduct an adequate study and, where necessary, prepare for the consultation.

AddedRecital 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 33: (33) Digital labour platforms and any other undertaking should be required to disclose the detailed functioning of their automated or semi-automated monitoring and decision-making systems, including algorithms, fundamental rights and freedoms of the workers or affecting working conditions or work organisation.

AddedRecital 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 34: (34) Articles 5 and 6 of Regulation (EU) 2016/679 require that personal data are accessed, collected and processed in a lawful, fair and transparent manner. Digital labour platforms and any other undertaking using automated or semi-automated monitoring and decision-making systems should therefore not be allowed to access, collect and process any personal data concerning persons performing platform work that are not intrinsically connected to and strictly necessary for the performance of the contract between those persons and the digital labour platform or the undertaking. Article 6(5) 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. Workers and workers’ representatives have the right to access the data collection of workers, to obtain the rectification or erasure of the data, to restrict the processing and to be notified about any rectification or erasure of personal data or restriction of processing carried out in accordance with Article 16, Article 17(1) and Article 18 of Regulation (EU) 2016/679. Workers and workers’representatives have the right to object at any time to processing of personal data concerning them, which is based on Article 6(1), point (e) or (f), including profiling based on those provisions. In those cases, the undertaking should no longer pr…

AddedRecital 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 35: (35) Digital labour platforms and an increasing number of other undertakings make extensive use of automated or semi-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 or subject to these systems when performing their work, who might not have a direct contact with a human manager or supervisor. Digital labour platforms and any other undertaking making use of those systems should therefore regularly oversight and evaluate the impact of individual decisions taken or supported by automated or semi-automated monitoring and decision-making systems on working conditions and on fundamental rights and freedoms of workers, including their human dignity. Undertakings should ensure sufficient human resources for this purpose. The persons charged by the undertaking with the function of supervising 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 or semi-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 and undertakings using those systems in relation to human monitoring of the impact of …

AddedRecital 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 36: (36) Article 22(3) of Regulation (EU) 2016/679 requires data controllers to implement suitable measures to safeguard data subjects’ rights and freedoms and legitimate interests in cases where the latter are subject to decisions based solely on automated or semi-automated processing. That provision requires, as a minimum, the data subject’s right to obtain human intervention on the part of the controller, to express his or her point of view and to contest the decision. Those requirements apply also to digital labour platforms and other undertakings using those systems. Article 8 of this Directive provides for more specific rules in the context of platform work and work subject to automated or semi-automated monitoring and decision-making systems, 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. Article 22 of Regulation (EU) 2016/679 provides that the data subject have the right not to be subject to a decision based solely on automated processing, including profiling, which produces legal effects concerning him or her or similarly significantly affects him or her.Therefore, algorithmic management that entails fully automated decision-making that has significant effects on individuals without input from human managers is unlawful under Union law.

AddedRecital 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 36 a (new): (36a) Human reviewers should be involved in checking the system’s recommendation and should not “routinely” apply the automated recommendation to an individual; reviewers’ involvement should be active and not just a token gesture. They should have actual concrete influence on the decision, including the “authority and competence” to go against the recommendation; 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 workers’ rights as well as their health and safety.

AddedRecital 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 37: (37) In that context, persons performing platform work and any other worker subject to automated or semi-automated systems should have the right to obtain an explanation from the digital labour platform for a decision, the lack of decision or a set of decisions taken or supported by automated or semi-automated systems that 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 and any other undertaking using automated or semi-automated monitoring and decision- making systems 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 and any other undertaking using those systems should provide the person performing platform work and any other worker subject to automated or semi-automated systems with a written statement of reasons for any decision 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 they are likely to have significant negative effects on persons performing platform work, in particular their potential earnings. Such decisions should be taken in line with applicable provis…

AddedRecital 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 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 or semi-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 or subject to those systems when performing work, digital labour platforms and undertakings using those systems should avoid those risks, evaluate 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 and protective measures. Especially 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 provides for employers to consult workers and workers’ representatives and 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 …

AddedRecital 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 …

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Change 16

RemovedRecital 40: (40) Persons who do not have an employment relationship constitute a significant part of the persons performing platform work. The impact of automated or semi-automated monitoring and decision-making systems used by digital labour platforms on their working conditions and their earning opportunities is similar to that on platform workers. Therefore, 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 or semi-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, and workers’ 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…

AddedRecital 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 40 a (new): (40a) While automated and semi-automated monitoring and decision-making systems are present on all digital labour platforms and are part of their business model, such technologies are increasingly used in all workplaces, affecting therefore all workers. According to the 2020 Commission s "European enterprise survey on the use of technologies based on artificial intelligence : final report"1a,, 42% of enterprises in the Union had used at least one of the artificial intelligence-related technologies included in the survey. According to the 2019 EU-OSHA’s European Survey of Enterprises on New and Emerging Risks (ESENER), machines are used for workers management or surveillance in 12% of Union undertakings. For these reasons, the provisions of this Directive pertaining to algorithmic management should apply to all workers subject to those systems. / 1a https://data.europa.eu/doi/10.2759/759368

AddedRecital 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 41: (41) In order to ensure that digital labour platforms comply with labour legislation and regulations, social security contribution obligations, social security coordination and other relevant rules, and with a view to prevent 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 to such cross-border cases, the European Labour Authority was established to facilitate and support cooperation between the competent national authorities in the provision of information to employers and workers, to foster the exchange of information, including through promoting where relevant the use of electronic exchange mechanisms between national authorities such as the Commission’s Internal Market Information System, and the enforcement of legislation through concerted and joint inspections.

AddedRecital 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 42: (42) Information on the number of persons performing platform work through digital labour platforms on a regular basis, their contractual or employment status and the general terms and conditions applicable to those contractual relationships 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 workers’ representatives of persons performing platform work in the exercise of their representative functions and should therefore be made accessible to them. Those authorities and workers’ 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 Labour Authority should support the collection and sharing of those data for the purpose of developing appropriate risk assessment tools.

AddedRecital 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 44: (44) Representatives of persons performing platform work or subject to automated and semi-automated monitoring and decision-making systems 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.

AddedRecital 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 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. It is therefore necessary to create digital communication 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. Digital labour platforms should create such communication 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 that trade unions are able to effectively exercise their role.

AddedRecital 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 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 supervise certain elements of the performance or the quality 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.

AddedRecital 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 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 and work subject to automated and semi-automated monitoring and decision-making systems 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 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, 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.

AddedRecital 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 48: (48) Automated or semi-automated monitoring and decision-making systems used in the context of platform work and work subject to those systems involve the processing of personal data and affect the working conditions and rights of persons performing platform work or subject to those systems when performing 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.