Considerations on COM(2021)762 - Improving working conditions in platform work - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2021)762 - Improving working conditions in platform work. |
|---|---|
| document | COM(2021)762  |
| date | October 23, 2024 |
| (2) | Article 31 of the Charter of Fundamental Rights of the European Union (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 concerning him or her. Article 12 of the Charter provides that everyone has the right to freedom of assembly and of association at all levels. Article 16 of the Charter recognises the freedom to conduct a business. Article 21 of the Charter prohibits discrimination. |
| (3) | Principle No 5 of the European Pillar of Social Rights (the ‘Pillar’), proclaimed at Gothenburg on 17 November 2017, 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; that innovative forms of work that ensure quality working conditions are to be fostered; that entrepreneurship and self-employment are to be encouraged; that occupational mobility is to be facilitated; and that employment relationships that lead to precarious working conditions are to be prevented, including by prohibiting the abuse of atypical contracts. 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 and that, prior to any dismissal, workers have the right to be informed of the reasons and be granted a reasonable period of notice and the right to access to effective and impartial dispute resolution and, in the case of unjustified dismissal, a right to redress, including adequate compensation. Principle No 10 of the Pillar provides that workers have, inter alia, 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. The Porto Social Summit of 7 May 2021 welcomed the Action Plan accompanying the Pillar. |
| (4) | Digitalisation is changing the world of work, improving productivity and enhancing flexibility, while also carrying some risks for employment and working conditions. Algorithm-based technologies, including automated monitoring systems and automated decision-making systems, have enabled the emergence and growth of digital labour platforms. New forms of digital interaction and new technologies in the world of work, if regulated and implemented properly, can create opportunities for access to decent and quality jobs for people who traditionally lacked such access. However, if unregulated, they can also result in technology-enabled surveillance, increase power imbalances and opacity about decision-making, and entail risks for decent working conditions, for the health and safety at work, for equal treatment and for the right to privacy. |
| (5) | Platform work is performed by individuals through the digital infrastructure of digital labour platforms that provide a service to their customers. Platform work is performed 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 the activities carried out, as well as in the profiles of persons performing platform work. By means of the algorithms, the digital labour platforms organise, to a lesser or greater extent depending on their business model, the performance of the work, the remuneration for the work and the relationship between their customers and the persons performing the work. Platform work can be performed exclusively online by means of electronic tools (online platform work) or in a hybrid way combining an online communication process with a subsequent activity in the physical world (on-location platform work). Many of the existing digital labour platforms are international business actors that carry out activities and deploy business models in several Member States or across borders. |
| (6) | Platform work can provide opportunities for accessing the labour market more easily, gaining additional income through a secondary activity or enjoying some flexibility in the organisation of working time. At the same time, most persons performing platform work have another job or another source of income and tend to be low paid. Moreover, platform work is rapidly evolving, resulting in new business models and forms of employment that are sometimes not covered by the existing systems of protection. Therefore, it is important to accompany that process with adequate safeguards for persons performing platform work, irrespective of the nature of the contractual relationship. In particular, platform work can result in the unpredictability of working hours and can blur the boundaries between an employment relationship and a self-employed activity and the responsibilities of employers and workers. The 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 also leads to 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. |
| (7) | Court cases in several Member States have shown the persistence of the 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 and control. 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 into their main business activities. Those courts have therefore reclassified purportedly self-employed persons as workers employed by the platforms. |
| (8) | Automated monitoring systems and automated decision-making systems powered by algorithms increasingly replace functions that managers usually perform in businesses, such as allocating tasks, pricing individual assignments, determining working schedules, giving instructions, evaluating the work performed, providing incentives or applying adverse treatment. 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 used or how the behaviour of those persons affects decisions taken by automated systems. Furthermore, workers’ representatives, other representatives of persons performing platform work, labour inspectorates and other competent authorities do not have access to such information. Moreover, persons performing platform work often do not know the reasons for decisions taken or supported by automated systems and are not able to obtain an explanation for those decisions, to discuss those decisions with a human contact person, to contest those decisions or to seek rectification or, where relevant, redress. |
| (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 as regards online platform work. Furthermore, national competent 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. |
| (10) | A body of legal instruments provides for minimum standards in working conditions and labour rights across the Union. This includes, in particular, Directives 2003/88/EC (4), 2008/104/EC (5) and (EU) 2019/1152 (6), of the European Parliament and of the Council, and other specific instruments on aspects such as health and safety at work, pregnant workers, work-life balance, fixed-term work, part-time work, and the posting of workers. In addition, the Court of Justice of the European Union (the ‘Court of Justice’) has ruled (7) that ‘stand-by’ time, during which the worker’s opportunities to carry out other activities are significantly restricted, is to be regarded as working time. Directive 2002/14/EC of the European Parliament and of the Council (8) establishes a general framework setting out minimum requirements for the right to information and consultation of employees in undertakings or establishments within the Union. |
| (11) | The Council Recommendation of 8 November 2019 (9) recommends Member States to take measures ensuring the formal and effective coverage, and the adequacy and transparency, of social protection schemes for all workers and self-employed persons. |
| (12) | Regulation (EU) 2016/679 of the European Parliament and of the Council (10) 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 the lawful, fair and transparent processing of personal data, including with regard to automated individual decision-making. |
| (13) | Regulation (EU) 2019/1150 of the European Parliament and of the Council (11) promotes fairness and transparency for business users using online intermediation services provided by operators of online platforms. |
| (14) | While existing 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 minimum rights for platform workers and rules to improve the protection of the personal data of persons performing platform work to address those challenges. Measures facilitating the determination of the correct employment status of persons performing platform work in the Union should be introduced, and the transparency with regard to platform work should be improved, including in cross-border situations. In addition, persons performing platform work should be provided with rights, with a view to promoting transparency, fairness, human oversight, safety and accountability. Those rights should also be provided with a view to protecting workers and improving working conditions in algorithmic management, including the exercise of collective bargaining. This should be done with a view to improving legal certainty and aiming to achieve 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. |
| (15) | 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 (TFEU), on the improvement of working conditions in platform work. This did not result in an agreement among the social partners to enter into negotiations with regard to those matters. It is, however, important to take action in this area at Union level by adapting the current legal framework to the emergence of platform work, including as regards the use of automated monitoring systems and automated decision-making systems. In addition, the Commission has held extensive exchanges with relevant stakeholders, including digital labour platforms, associations of persons performing platform work, experts from academia, Member States and international organisations, and representatives of civil society. |
| (16) | This Directive aims to improve the working conditions of platform workers and to protect the personal data of persons performing platform work. Both objectives are pursued simultaneously and, while mutually reinforcing and inseparably linked, one is not secondary to the other. As regards Article 153(1), point (b), TFEU, this Directive sets out rules aiming to support the determination of the correct employment status of persons performing platform work and to improve working conditions and transparency with regard to platform work, including in cross-border situations, as well as to protect workers in the context of algorithmic management. As regards Article 16 TFEU, this Directive establishes rules to improve the protection of persons performing platform work with regard to the processing of their personal data by increasing the transparency, fairness, human oversight, safety and accountability of relevant algorithmic management procedures in platform work. |
| (17) | This Directive should apply to persons performing platform work in the Union who have or who, on the basis of an assessment of the facts, are deemed to have an employment contract or employment relationship as defined by the law, collective agreements or practice in force in the Member States, with consideration to the case-law of the Court of Justice. The provisions on algorithmic management which are related to the processing of personal data should also apply to persons performing platform work who do not have an employment contract or employment relationship. |
| (18) | This Directive should establish mandatory rules that apply to all digital labour platforms, irrespective of their place of establishment or of the law otherwise applicable, provided that the platform work organised through that digital labour platform is performed in the Union. |
| (19) | Digital labour platforms differ from other online platforms in that they use automated monitoring systems or automated decision-making systems to organise work performed by individuals at the request, one-off or repeated, of the recipient of a service provided by the platform. Automated monitoring systems and automated decision-making systems process personal data of persons performing platform work and take or support decisions that affect, inter alia, working conditions. Those features make digital labour platforms a distinct form of organising the service provision by professionals compared to more traditional forms of organising service provision, such as traditional forms of ride hailing or transport service dispatch. Furthermore, the increased complexity in the structural organisation of digital labour platforms goes hand in hand with their fast-paced evolution, often creating systems with a variable geometry in the organisation of work. For instance, there could be cases where digital labour platforms provide a service whose recipient is the digital labour platform itself or a distinct business entity within the same group of undertakings, or organise work in such a way that it blurs the traditional patterns which are typically recognisable in the systems of provision of services. This might also be the case for microwork or crowdwork platforms, which are a type of online digital labour platform that provide businesses and other clients with access to a large and flexible workforce for the completion of small tasks that can be performed remotely using a computer and internet connection, such as tagging. Tasks are split up and distributed to a large number of individuals (the crowd) who can complete them asynchronously. |
| (20) | Organising work performed by individuals should involve at a minimum a significant role in matching the demand for the service with the supply of work by an individual who has a contractual relationship with the digital labour platform or an intermediary, regardless of its formal designation by the parties or of its nature, and who is available to perform a specific task. Organising such work 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, without any further involvement of the platform, for instance by advertising offers or requests for services or aggregating and displaying available service providers in a specific area, should not be considered to be digital labour platforms. The definition of digital labour platforms should not include providers of a service whose primary purpose is to exploit or share assets, such as short-term rental of accommodation, or by means of which individuals who are not professionals can resell goods, nor those who organise the activities of volunteers. The definition should be limited to providers of a service for which the organisation of work performed by the individual, such as transport of persons or goods or cleaning, constitutes a necessary and essential component, and not merely a minor and purely ancillary component. |
| (21) | Arrangements and processes of workers’ representation vary between Member States, reflecting their respective histories, institutions, and economic and political situations. Among the enabling conditions for a well-functioning social dialogue are the existence of strong, independent trade unions and employers’ organisations, with access to relevant information necessary to participate in social dialogue, and respect for the fundamental rights of the freedom of association and of collective bargaining. |
| (22) | According to the International Labour Organization (ILO) Workers’ Representatives Convention No 135 (1971), currently ratified by 24 Member States, worker representatives can be persons who are recognised as such under national law or practice, whether they are trade union representatives, namely representatives designated or elected by trade unions or by members of such unions, or elected representatives, namely, representatives who are freely elected by the workers of the undertaking in accordance with provisions of national laws or regulations or of collective agreements and whose functions do not include activities which are recognised as the exclusive prerogative of trade unions in the country concerned. That Convention states that, where both trade union representatives and elected representatives exist in the same undertaking, such representation is not to be used to undermine the positions of the trade unions concerned or of their representatives, and that cooperation between the elected representatives and the trade unions concerned or their representatives is to be encouraged. |
| (23) | The Member States have ratified the ILO Right to Organise and Collective Bargaining Convention No 98 (1949), which provides that acts which are designed to promote the establishment of workers’ organisations under the domination of employers or employers’ organisations, or to support workers’ organisations by financial or other means, with the object of placing such organisations under the control of employers or employers’ organisations, are to be deemed to constitute acts of interference, against which ILO Member States need to protect workers’ organisations. It is important for such acts to be addressed in order to ensure that, when defining or implementing practical arrangements for information and consultation pursuant to this Directive, employers and the workers’ representatives work in a spirit of cooperation with due regard to their reciprocal rights and obligations, taking into account the interests both of the undertaking or establishment and of the workers. |
| (24) | In some cases, persons performing platform work do not have a direct contractual relationship with the digital labour platform, but are in a relationship with an intermediary through which they perform platform work. This way of organising platform work often results in a vast array of different and complex multi-party relationships, including subcontracting chains, as well as in blurred responsibilities between the digital labour platform and the intermediaries. Persons performing platform work through intermediaries are exposed to the same risks related to the misclassification of their employment status and the use of automated monitoring systems or automated decision-making systems as persons performing platform work directly for the digital labour platform. Member States should therefore establish appropriate measures in order to ensure that, under this Directive, persons performing platform work working through intermediaries enjoy the same level of protection as persons performing platform work who have a direct contractual relationship with the digital labour platform. Member States should establish appropriate mechanisms, including, where appropriate, through joint and several liability systems. |
| (25) | To combat false self-employment in platform work and to facilitate the determination of the correct employment status of persons performing platform work, Member States should have appropriate procedures in place to prevent and address the misclassification of the employment status of persons performing platform work. 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 thereby to ensure that platform workers fully enjoy the same employment rights as other workers in accordance with relevant Union law, national law and collective agreements. When the existence of an employment relationship is established on the basis of the facts, the party or parties responsible for the execution of the obligations of the employer should be clearly identified and should comply with the corresponding employers’ obligations under Union law, national law and collective agreements applicable in the sector of activity. |
| (26) | Where a party is found to be an employer and fulfils the conditions of being a temporary-work agency in accordance with Directive 2008/104/EC, the obligations under that Directive apply. |
| (27) | The principle of primacy of facts, meaning that the ascertainment of the existence of an employment relationship should be guided primarily by the facts relating to the actual performance of work, including the remuneration for the work, and not by the parties’ description of the relationship, in accordance with the ILO Employment Relationship Recommendation No 198 (2006), is particularly relevant in the case of platform work where contractual conditions are often unilaterally determined by one party. |
| (28) | The abuse of the status of self-employed persons, 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. A false declaration of self-employment is often made to avoid certain legal or fiscal obligations or to create a competitive advantage compared to law-abiding undertakings. In a number of judgments (12), the Court of Justice has ruled that the classification of a self-employed person under national law does not prevent that person from being classified as a worker within the meaning of Union law if that person’s independence is merely notional, thereby disguising an employment relationship. |
| (29) | Ensuring the determination of the correct employment status of persons performing platform work should not prevent the improvement of conditions of genuine self-employed persons performing platform work. The Commission communication of 30 September 2022, which contains ‘Guidelines on the application of Union competition law to collective agreements regarding the working conditions of solo self-employed persons’ and indicates that, according to the Commission, collective agreements between solo self-employed persons and digital labour platforms relating to working conditions fall outside the scope of Article 101 TFEU, can, to that end, serve as useful guidance. It is crucial, however, that the introduction of those collective agreements does not undermine the objectives pursued by this Directive, in particular the correct classification of persons performing platform work with regard to their employment status. |
| (30) | Direction and control can take different forms in concrete cases, considering that the platform economy model is constantly evolving. For instance, the digital labour platform might exert direction and control not only by direct means, but also by applying punitive measures or other forms of adverse treatment or pressure. In the context of platform work, it is often difficult for the persons performing platform work to have appropriate access to the tools and information required to assert before a competent authority the actual nature of their contractual relationship and the rights derived therefrom. In addition, the management of persons performing platform work through automated monitoring systems or automated decision-making systems is characterised by a lack of transparency on the part of the digital labour platform. Those features of platform work perpetuate the phenomenon of misclassification as false self-employment, thus hindering the determination of the correct employment status of persons performing platform work and the access to decent living and working conditions by platform workers. Member States should therefore lay down measures providing for effective procedural facilitation for persons performing platform work when determining their correct employment status. In that context, a legal presumption of an employment relationship in favour of persons performing platform work is an effective instrument which greatly contributes to the improvement of living and working conditions of platform workers. Therefore, a contractual relationship should be legally presumed to be an employment relationship as defined by the law, collective agreements or practice in force in the Member States with consideration to the case-law of the Court of Justice, where facts indicating direction and control are found. |
| (31) | An effective legal presumption requires that national law effectively make it easy for the persons performing platform work to benefit from the presumption. The requirements under the legal presumption should not be burdensome and should ease the difficulties of persons performing platform work in providing evidence indicating the existence of an employment relationship in a situation in which there is a power imbalance vis-à-vis the digital labour platform. The purpose of the legal presumption is to effectively address and correct the power imbalance between the persons performing platform work and the digital labour platform. The modalities of the legal presumption should be laid down by the Member States, provided that those modalities ensure the establishment of an effective rebuttable legal presumption of employment that constitutes a procedural facilitation for the benefit of persons performing platform work, and that they do not have the effect of increasing the burden of requirements on persons performing platform work or their representatives in proceedings to determine the correct employment status of such persons. The application of the legal presumption should not automatically lead to the reclassification of persons performing platform work. Where the digital labour platform seeks to rebut the legal presumption, it should be for the digital labour platform to prove that the contractual relationship in question is not an employment relationship as defined by the law, collective agreements or practice in force in the Member States, with consideration to the case-law of the Court of Justice. |
| (32) | In line with the objective of this Directive of improving the working conditions of platform workers by facilitating the determination of their correct employment status and thereby ensuring that they enjoy the relevant rights deriving from Union law, national law and collective agreements, the legal presumption should apply in all relevant administrative or judicial proceedings in which the employment status of the person performing platform work is at issue. While this Directive does not impose any obligation on Member States to apply the legal presumption to tax, criminal or social security proceedings, it is crucial that the legal presumption is effectively applied in all Member States, pursuant to this Directive. In particular, nothing in this Directive should prevent Member States, as a matter of national law, from applying the legal presumption in tax, criminal or social security proceedings or other administrative or judicial proceedings or from recognising the results of proceedings in which the legal presumption has been applied for the purposes of providing rights to reclassified workers under other areas of law. |
| (33) | In the interests of legal certainty, the legal presumption should not have any retroactive legal effects and should therefore apply only to the period starting from 2 December 2026, 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 Union and national law applicable before that date, including Directive (EU) 2019/1152. |
| (34) | 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 by the law, collective agreements or practice in force of the relevant Member State, with consideration to the case-law of the Court of Justice. Member States should ensure that it is possible to rebut the legal presumption by proving, on the basis of that definition, that the relationship in question is not an employment relationship. Digital labour platforms have a complete overview of all factual elements determining the legal nature of the relationship, in particular the algorithms through which they manage their operations. Digital labour platforms should therefore have the burden of proof where they argue that the contractual relationship in question is not an employment relationship. A successful rebuttal of the legal presumption in judicial or administrative proceedings should not preclude the application of the legal presumption in subsequent judicial proceedings or appeals, in accordance with national procedural law. |
| (35) | The effective implementation of the legal presumption through a framework of supporting measures is essential to ensure legal certainty and transparency for all parties involved. Such measures should include disseminating comprehensive information to the public, developing guidance in the form of concrete and practical recommendations for digital labour platforms, persons performing platform work, the social partners and for national competent authorities and providing effective controls and inspections, in accordance with national law and practice, including, as appropriate, by establishing targets for such controls and inspections. |
| (36) | Such measures should support the ascertainment of the existence of an employment relationship as defined by the law, collective agreements or practice in force in the Member State in question, with consideration to the case-law of the Court of Justice, including, if appropriate, the confirmation of a classification of a person performing platform work as genuinely self-employed. To enable those authorities to carry out their tasks in enforcing the provisions of this Directive, with particular regard to the competence of Member States to decide on the staffing of national authorities, they need to be adequately staffed. This requires national competent authorities to be provided with adequate human resources that have the required skills and access to appropriate training, and with the availability of technical expertise in the field of algorithmic management. ILO Labour Inspection Convention No 81 (1947) provides indications on how to determine a sufficient number of labour inspectors for the effective discharge of their duties. A decision of a national competent authority resulting in a change of the employment status of a person performing platform work should be taken into account by national competent authorities when deciding on controls and inspections that they intend to carry out. |
| (37) | Member States’ competent authorities should cooperate with each other, including through the exchange of information, as provided for under national law and practice, for the purpose of ensuring the determination of the correct employment status of persons performing platform work. |
| (38) | 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 specific rules addressing the concerns that are related to the processing of personal data by means of automated monitoring systems or automated decision-making systems in the context of platform work. Article 88 of Regulation (EU) 2016/679 already provides that Member States may, by law or by means of collective agreements, provide 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. This Directive provides for more specific safeguards concerning the processing of personal data by means of automated systems in the context of platform work, thereby providing for a higher level of protection of the personal data of persons performing platform work. In particular, this Directive establishes more specific rules in relation to Regulation (EU) 2016/679 concerning the use of and transparency with regard to automated decision-making. This Directive also establishes additional measures in relation to Regulation (EU) 2016/679 in the context of platform work to safeguard the protection of the personal data of persons performing platform work, in particular where decisions are taken or supported by the automated processing of personal data. 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. |
| (39) | Articles 5, 6 and 9 of Regulation (EU) 2016/679 require that personal data be processed in a lawful, fair and transparent manner. This implies certain restrictions on the manner in which digital labour platforms are able to process personal data by means of automated monitoring systems or automated decision-making systems. Nonetheless, in the particular case of platform work, the consent of persons performing platform work to the processing of their personal data cannot be assumed to be freely given. Persons performing platform work often do not have a genuine free choice or are not able to refuse or withdraw consent without detriment to their contractual relationship, given the power imbalance between the person performing platform work and the digital labour platform. Therefore, digital labour platforms should not process the personal data of persons performing platform work on the basis that a person performing platform work has given consent to the processing of his or her personal data. |
| (40) | Digital labour platforms should not, by means of automated monitoring systems or any automated system used to take or support decisions affecting persons performing platform work, process any personal data on the emotional or psychological state of persons performing platform work, process any personal data in relation to their private conversations, collect any personal data while persons performing platform work are not offering or performing platform work, process any personal data to predict the exercise of fundamental rights, including the freedom of association, the right of collective bargaining and action or the right to information and consultation, as defined in the Charter, or process personal data to infer the person’s racial or ethnic origin, migration status, political opinions, religious or philosophical beliefs, disability, state of health, including chronic disease or HIV status, emotional or psychological state, trade union membership, sex life or sexual orientation. |
| (41) | Digital labour platforms should not process biometric data of persons performing platform work for the purpose of identification, namely establishing a person’s identity by comparing his or her biometric data to stored biometric data of a number of individuals in a database (one-to-many identification). This does not affect the possibility for digital labour platforms to conduct biometric verification, namely verifying a person’s identity by comparing his or her biometric data to data previously provided by that same person (one-to-one verification or authentication) where such processing of personal data is lawful under Regulation (EU) 2016/679 or other relevant Union and national law. |
| (42) | Biometrics-based data are personal data which result from specific technical processing relating to the physical, physiological or behavioural features, signals or characteristics of a natural person, such as facial expressions, movements, pulse frequency, voice, keystrokes or gait, which may or may not allow or confirm the identification of a natural person. |
| (43) | The processing of personal data by automated monitoring systems or automated decision-making systems used by digital labour platforms is likely to result in a high risk to the rights and freedoms of persons performing platform work. Therefore, digital labour platforms should always carry out a data-protection impact assessment in accordance with the requirements laid down in Article 35 of Regulation (EU) 2016/679. Taking into account the effects that decisions taken by automated decision-making systems have on persons performing platform work, in particular platform workers, this Directive establishes more specific rules regarding the consultation of persons performing platform work and their representatives in the context of data-protection impact assessments. |
| (44) | In addition to the requirements laid down in Regulation (EU) 2016/679, digital labour platforms should be subject to transparency and information obligations in relation to automated monitoring systems and automated systems which are used to take or support decisions that affect persons performing platform work, including the working conditions of platform workers, such as their recruitment, their access to and the organisation of work assignments, their earnings, their safety and health, their working time, their access to training, their promotion or its equivalent, and their contractual status, including the restriction, suspension or termination of their account. The type and form of information that is to be provided to persons performing platform work regarding such automated systems, as well as the timing of its provision, should be specified. Individual platform workers should receive that information in a concise, simple and understandable form, in so far as the systems and their features directly affect them and, where applicable, their working conditions, so that they are effectively informed. They should also have the right to request comprehensive and detailed information about all relevant systems. Comprehensive and detailed information regarding such automated systems should also be provided to representatives of persons performing platform work, as well as to national competent authorities upon their request, in order to enable them to exercise their functions. |
| (45) | In addition to the right to the portability of personal data which the data subject has provided to a controller in accordance with Article 20 of Regulation (EU) 2016/679, persons performing platform work should have the right to receive, without hindrance and in a structured, commonly used and machine-readable format, any personal data generated through their performance of work in the context of a digital labour platform’s automated monitoring systems or automated decision-making systems, including ratings and reviews, to transmit them or have them transmitted to a third party, including another digital labour platform. Digital labour platforms should provide persons performing platform work with tools to facilitate effective data portability that is free of charge in order to exercise their rights under this Directive and under Regulation (EU) 2016/679. |
| (46) | In some cases, digital labour platforms do not formally terminate their relationship with a person performing platform work but restrict the account of the person performing platform work. Restricting the account is to be understood as any limitation imposed on that person’s ability to perform platform work through the account, including restricting the access to the account or to work assignments. |
| (47) | Digital labour platforms make extensive use of automated monitoring systems and automated decision-making systems in managing persons performing platform work. Monitoring by electronic means can be intrusive and decisions taken or supported by such systems, such as those related to the offer or assignment of tasks, the earnings, their safety and health, their working time, their access to training, their promotion or status within the organisation and contractual status, 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 regularly, in any event every two years, carry out an evaluation of the impact of individual decisions taken or supported by automated monitoring systems or automated decision-making systems on persons performing platform work including, where applicable, their working conditions and equal treatment at work. Workers’ representatives should be involved in the evaluation process. Digital labour platforms should ensure sufficient human resources for the purpose of such oversight and evaluation. The persons charged by the digital labour platform with the function of oversight should have the competence, training and authority necessary to exercise that function and in particular the right to override automated decisions. They should be protected from dismissal, disciplinary measures or other adverse treatment for exercising their functions. In addition, it is important that digital labour platforms tackle systematic shortcomings in the use of automated monitoring systems and automated decision-making systems. Therefore, where the oversight activities identify a high risk of discrimination at work, or the infringement of rights of persons performing platform work, digital labour platforms should take appropriate measures to address them, including the possibility to discontinue such systems. |
| (48) | Regulation (EU) 2016/679 requires data controllers to implement suitable measures to safeguard the data subject’s rights and freedoms and legitimate interests in cases where the latter is subject to decisions based solely on 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. In addition to the requirements laid down in Regulation (EU) 2016/679, in the context of algorithmic management and considering the serious impact on persons performing platform work of decisions of restricting, suspending or terminating their contractual relationship or their account, or any decision of equivalent detriment, such decisions should always be taken by a human being. |
| (49) | In addition to the requirements of Regulation (EU) 2016/679 in the context of algorithmic management in platform work, persons performing platform work should have the right to obtain, without undue delay, an explanation from the digital labour platform for a decision, the lack of a decision or a set of decisions taken or supported by automated decision-making systems. For that purpose, the digital labour platform should provide persons performing platform work with the possibility to discuss and clarify the facts, circumstances and reasons for such decisions with a human contact person at the digital labour platform. In addition, certain decisions are likely to have particularly significant negative effects on persons performing platform work, in particular on their potential earnings. For decisions to restrict, suspend or terminate the account of a person performing platform work, to refuse the payment for work performed by that person, or affecting the essential aspects of the contractual relationship, the digital labour platform should provide the person performing platform work, at the earliest opportunity and at the latest on the date on which such decisions take effect, with a written statement of reasons for such decisions. Where the explanation or the reasons provided are not satisfactory or where persons performing platform work consider their rights to be infringed by a decision, they should also have the right to request the digital labour platform to review the decision and to obtain a substantiated reply without undue delay, and in any event within two weeks of receipt of the request. Where such decisions infringe those persons’ rights, such as their labour rights, their right to non-discrimination or the right to protection of their personal data, the digital labour platform should rectify such decisions without undue delay or, where that is not possible, should provide adequate compensation for the damage sustained and take the steps necessary to avoid similar decisions in the future, including, if appropriate, the modification or the discontinuation of the use of the relevant automated decision-making system. With regard to human review of decisions, the specific provisions of Regulation (EU) 2019/1150 should prevail in respect of business users. |
| (50) | Council Directive 89/391/EEC (13) 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 and lays down general principles of prevention that employers are to implement. Automated monitoring systems and automated decision-making systems potentially have significant impact on the safety and on the physical and mental health of platform workers. 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 limited learning at work and the limited influence over tasks due to the use of non-transparent algorithms, work intensification and insecurity derived from the use of automated monitoring systems or automated decision-making systems are likely to increase workforce’s stress and anxiety. Therefore, digital labour platforms should evaluate those risks, assess whether the safeguards of the systems are appropriate to address those risks and take appropriate preventive and protective measures. They should avoid that the use of such systems results in undue pressure on workers or puts their health at risk. In order to strengthen the effectiveness of those provisions, the digital labour platform should make their risk evaluation and the assessment of the mitigating measures available to platform workers, their representatives and the competent authorities. |
| (51) | Persons performing platform work are exposed, in particular in on-location platform work, to a risk of violence and harassment, without having a physical workplace where they are able to address complaints. Harassment and sexual harassment are liable to have a negative impact on the health and safety of platform workers. Member States should therefore provide for preventive measures, including the setting up of effective reporting channels. Member States are also encouraged to support effective measures to combat violence and harassment in platform work and, in particular, include appropriate reporting channels for persons performing platform work who do not have an employment relationship. |
| (52) | Information and consultation of workers’ representatives, which are regulated at Union level pursuant to Directive 2002/14/EC, are key to fostering effective social dialogue. As the introduction of or substantial changes in the use of automated monitoring systems and automated 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 platform workers’ representatives before such decisions are taken, at the appropriate level. Given the technical complexity of algorithmic management systems, information should be given in due time to enable platform workers’ representatives to prepare for consultation, with the assistance of an expert chosen by the platform workers or their representatives in a concerted manner where needed. The information and consultation measures provided for in Directive 2002/14/EC remain unaffected by this Directive. |
| (53) | In the absence of workers’ representatives, it should be possible for the workers to be directly informed by the digital labour platform of the introduction of or substantial changes in the use of automated monitoring systems and automated decision-making systems. |
| (54) | A number of persons performing platform work are self-employed persons. The impact of automated monitoring systems and automated decision-making systems used by digital labour platforms on the protection of the personal data of self-employed persons and their earning opportunities is similar to that of platform workers. Therefore, the rights laid down in this Directive that pertain to the protection of natural persons in relation to the processing of personal data in the context of algorithmic management, namely those regarding transparency with regard to automated monitoring systems and automated decision-making systems, restrictions to process or collect personal data, human monitoring and review of significant decisions, should also apply to persons performing platform work who do not have an employment relationship. The rights pertaining to health and safety at work, information and consultation of platform workers or their representatives, which are specific to workers pursuant to Union law, should not apply to persons performing platform work who do not have an employment relationship. Regulation (EU) 2019/1150 provides safeguards regarding fairness and transparency for self-employed persons performing platform work, provided that they are considered to be business users within the meaning of that Regulation. With regard to the human review of significant decisions, the specific provisions of Regulation (EU) 2019/1150 should prevail in respect of business users. |
| (55) | The obligations of digital labour platforms, including with regard to information and consultation in respect of automated monitoring systems and automated decision-making systems, apply irrespective of whether such systems are managed by the digital labour platform itself or by an external service provider which carries out data processing on behalf of the digital labour platform. |
| (56) | In order to enable national competent authorities to ensure that digital labour platforms comply with labour legislation and regulations, in particular if they are established in a Member State other than the Member State in which the platform worker is performing work or in a third country, digital labour platforms should declare work performed by platform workers to the competent authorities of the Member State in which the work is performed. A systematic and transparent system for the provision of information, including at cross-border level, is also pivotal to preventing unfair competition among digital labour platforms. The obligation to declare work performed by platform workers pursuant to this Directive should not replace obligations relating to declarations or notifications established by other Union legal acts. |
| (57) | The European Labour Authority established by Regulation (EU) 2019/1149 of the European Parliament and of the Council (14) contributes to ensuring fair labour mobility across the Union, in particular by facilitating the cooperation and the exchange of information between Member States with a view to the consistent, efficient and effective application and enforcement of relevant Union law, by coordinating and supporting concerted and joint inspections, by carrying out analyses and risk assessment on issues of cross-border labour mobility and by supporting Member States in tackling undeclared work. It therefore has an important role to play in addressing the challenges linked to the cross-border activities of many digital labour platforms as well as those linked to undeclared work in platform work. |
| (58) | Information on platform work performed by persons performing platform work through digital labour platforms, on the number of those persons, on their contractual or employment status and on the general terms and conditions applicable to those contractual relationships, is essential to supporting relevant authorities in determining the correct employment status of persons performing platform work and in ensuring compliance with legal obligations as well as representatives of persons performing platform work in the exercise of their representative functions. Those authorities and representatives should also have the right to ask digital labour platforms for additional clarifications and details regarding the information provided. |
| (59) | There is evidence of the use of undeclared work in delivery platforms in several Member States. That practice is carried out through rented identities, where persons performing platform work who have the right to work register with the digital labour platform and rent their accounts to undocumented migrants or to minors. This entails a lack of protection of those persons, including illegally staying third-country nationals, whose situation often results in a limitation to access to justice for fear of retaliation or risk of deportation. Directive 2009/52/EC of the European Parliament and of the Council (15) provides for minimum standards on sanctions and measures against employers of illegally staying third-country nationals. The transparency obligations and the rules on intermediaries laid down in this Directive strongly contribute, together with Directive 2009/52/EC, to address the issue of undeclared work in platform work. Furthermore, it is key that digital labour platforms ensure reliable verification of the identity of persons performing platform work. |
| (60) | An extensive system of enforcement provisions for the social acquis in the Union has been developed, elements of which should be applied to this Directive in order to ensure that persons performing platform work have access to timely, effective and impartial dispute resolution and a right to redress, including adequate compensation for the damage sustained. Specifically, having regard to the fundamental nature of the right to effective legal protection, persons performing platform work should continue to enjoy such protection even after the end of the employment or other contractual relationship giving rise to an alleged breach of rights under this Directive. |
| (61) | Representatives of persons performing platform work should be able, in accordance with national law and practice, to represent one or several persons performing platform work in any judicial or administrative proceedings 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. |
| (62) | Platform work is characterised by the lack of a common workplace where persons performing platform work can get to know and communicate with each other and with their representatives, also with a view of defending their interests with regard to the digital labour platform. 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 privately and securely with each other and can 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. |
| (63) | In administrative or judicial proceedings regarding the rights and obligations laid down in this Directive, the elements regarding the organisation of work that make it possible to determine the correct employment status, and in particular whether the digital labour platform directs or controls certain elements of the performance of work, as well as other elements regarding the use of automated monitoring systems and automated decision-making systems, could 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. |
| (64) | Given that this Directive provides for more specific rules and additional rules in relation to Regulation (EU) 2016/679 in the context of platform work to ensure the protection of personal data of persons performing platform work, the supervisory authorities provided for pursuant to Article 51 of Regulation (EU) 2016/679 should be competent to monitor the application of those safeguards. The procedural framework of Regulation (EU) 2016/679, in particular Chapters VI, VII and VIII thereof, should apply for the enforcement of the more specific and additional rules of this Directive, in particular as regards supervision, cooperation and consistency mechanisms, remedies, liability and penalties, including the competence to impose administrative fines up to the amounts referred to in Article 83(5) of that Regulation. |
| (65) | Automated monitoring systems and automated decision-making systems used in the context of platform work involve the processing of personal data of persons performing platform work and affect the working conditions and rights of platform workers, which raises issues of data-protection law as well as of other fields of law, such as labour law. Data-protection supervisory authorities and other competent authorities should therefore cooperate, including at cross-border level, in the enforcement of this Directive, including by exchanging relevant information with each other, without affecting the independence of data-protection supervisory authorities. |
| (66) | In order to ensure the effectiveness of the protection provided for in this Directive, it is essential to protect persons performing platform work who exercise their respective rights provided for by this Directive from dismissal or from the termination of their contract, and from any action with equivalent effect, including the suspension of their account. |
| (67) | Since the twofold objective of this Directive, namely the improvement of working conditions in platform work and the protection of personal data, cannot be sufficiently achieved by the Member States but can rather, by reason of the need to establish common minimum requirements, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 TEU. In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective. |
| (68) | This Directive lays down minimum requirements, thus leaving untouched the Member States’ prerogative to introduce and maintain provisions which are more favourable to persons performing platform work Rights acquired under the existing legal framework should continue to apply, including as regards mechanisms to ascertain the existence of an employment relationship, unless more favourable provisions are introduced by this Directive. The implementation of this Directive cannot be used to reduce existing rights set out in existing Union or national law in this field, nor can it constitute valid grounds for reducing the general level of protection in the field covered by this Directive or existing prerogatives conferred on workers’ representatives. |
| (69) | The autonomy of the social partners is to be respected. Member States should be able to allow the social partners, under specific conditions, to maintain, negotiate, conclude and enforce collective agreements which differ from certain provisions of this Directive, while respecting the overall protection of platform workers. |
| (70) | In implementing this Directive Member States should avoid imposing unnecessary administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium-sized enterprises (SMEs). Member States are therefore invited to assess the impact of their transposition measures on SMEs in order to ensure that they are not disproportionately affected, paying particular attention to microenterprises and the administrative burden. |
| (71) | The Member States should be able to entrust the social partners with the implementation of this Directive, where the social partners jointly request to do so and provided that the Member States take all the steps necessary to ensure that they can at all times guarantee the results sought under this Directive. They should also, in accordance with national law and practice, take adequate measures to ensure that the social partners are effectively involved and to promote and enhance social dialogue with a view to implementing this Directive. |
| (72) | In accordance with the Joint Political Declaration of 28 September 2011 of Member States and the Commission on explanatory documents (16), Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a directive and the corresponding parts of national transposition instruments. With regard to this Directive, the legislator considers the transmission of such documents to be justified. |
| (73) | The European Data Protection Supervisor was consulted in accordance with Article 42(1) of Regulation (EU) 2018/1725 of the European Parliament and of the Council (17) and published formal comments on 2 February 2022, |