Gabriël van Rosmalen — PhD candidate in European law and political philosophy (Utrecht University), researching the position of platform workers. This blog is produced as a part of the Reshaping Work Fellowship Programme. The opinions and views expressed in this publication are those of the author. They do not purport to reflect the opinions or views of Reshaping Work or organisations that have supported the programme.
Over two years of negotiations seemed to be leading nowhere. At the beginning of this year, the European directive for platform workers was declared dead. Member States were obstructive, a previous proposal had already been voted down, and the European elections were drawing ever closer. And then suddenly, the topic reappeared on the agenda and the law was resurrected. In March this year, some Member States made a U-turn, leading to an agreement.
This was widely celebrated, just before the elections, from MEPs to the European Commission. This agreement indeed contributes to the success of the social pillar of the European Union. At the same time, the adopted directive highlights a weak spot in the EU and the process has revealed how Member States are able to frustrate a harmonised European framework for platform labour.
Efforts of the European Commission
The issue of platform workers should be well-known by now. Platforms hire workers as self-employed contractors, meaning they are not entitled to social benefits such as pension accrual and holiday pay. Over the past few years, the question in many court cases has been: is there not actually an employment relationship? Because each national court adopts its own approach, confusion has arisen and the desired protection is lacking.
The European Commission aimed to address this ambiguity and therefore proposed a clear framework in 2021 to harmonise the platform economy among member states. This proposal included five criteria that could indicate whether there is an employment relationship between the platform and the worker, such as when the platform determines the remuneration or sets specific clothing requirements. If at least two of these criteria are met, the platform worker would be considered an employee rather than self-employed. The objective is clear: all member states are required to apply the same criteria when assessing employment relationships. This means there is no room for different national approaches, resulting in uniform European protection.
The power struggle between the EU and its member states
However, this harmonisation did not sit well with several Member States, that wish to retain control over their national labour laws. As a result, the negotiations experienced significant delays. The directive that has now been finalised is a watered-down version of the Commission’s original proposal. Notably, the criteria have been completely scrapped, meaning there is no longer a uniform framework for harmonisation. Instead, each Member State is now required to establish its own criteria for classifying platform workers. The EU mandates action but leaves it up to each member state to determine how that action should be implemented. It remains entirely unclear how countries will approach this.
This situation presents a two-faced picture. On one hand, the adopted directive is a step towards protecting platform workers. For a long time, the European integration process prioritised market thinking and competition over welfare policies and the protection of social rights. In contrast, the directive seeks a balance between a digital economy that allows for innovation and the social protection of workers. This is a positive development, and it is high time for member states to get to work.
On the other hand, this weakened directive shows that the EU struggles to gain sufficient control over national labour laws concerning the status of platform workers. The European Parliament and the European Commission favour harmonisation, but some Member States (with France being the most outspoken government) have pushed back. This dilutes the overall interest of the EU by prioritising national interests. It exposes a weak spot in the EU: successful in promoting a European free market, but the protection of welfare policies remains at the national level. This creates a disconnection between the economic (at the European level) and the social (at the national level). It is problematic that the EU fails to reconcile these two levels within the platform economy, particularly for platform workers. There is a risk that a national framework will offer insufficient protection, and the different criteria may vary widely. It is also problematic for the EU itself, which strives for a robust social dimension within the European project but only partially succeeds in enforcing this dimension.
The adopted directive is a good first step, but to truly make the platform economy social, a coordinated European approach is necessary. Therefore, the EU must not only have control over the European market but also over the labour laws for those working within that European market.
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Reshaping Work Fellowship is supported by Zurich Insurance.
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