Sweden’s third attempt to reconcile EU Council on platform workers rules

The Swedish presidency of the EU Council is making its third – and probably last – attempt to square the circle on the rules for gig economy workers with some light-touch changes.

The Platform Workers Directive has caused animosity in the EU Council of Ministers, as member states are divided on a fundamental part of the proposal – the rebuttable presumption that would automatically classify platform workers as employees under certain conditions.

Sweden, currently at the helm of the negotiations, has already made two attempts to bridge the difference between the camp that wants stricter classification criteria, which includes the likes of Spain and the Netherlands, and those who want a more flexible approach, including France and the Nordics.

A third, and likely last, text was circulated on 17 May to be discussed at the Committee of Permanent Representatives on Wednesday (24 May). The intent is to reach a general approach at Employment, Social Policy, Health and Consumer Affairs Council meeting on 12 June.

“While the requests of member states could not be accommodated in all instances, the presidency is persuaded that the text in the Annex presents a good compromise between the diverging views of delegations,” reads the document obtained by EURACTIV.

If Sweden falls short of supporting a qualified majority, the baton will be passed to Spain, which will take over the rotating presidency in July.

Legal presumption

On the legal presumption, “the presidency left the number of criteria and the threshold untouched as to its conviction this represents the right balance between the diverging requests of delegations.”

At the same time, the text clarifies that even when these conditions listed in the criteria are not part of the platform’s terms and conditions, they are to be considered fulfilled if they are met in practice.

Remarkably, a specification that the criteria are not to be fulfilled if that results from compliance with requirements under EU or national law, or collective agreements, especially in terms of health and safety, was kept in the Directive’s preamble.

In November, the Czech presidency tried to bring this specification into the body of the text, where it would be more legally binding, but faced vehement opposition from the more ‘ambitious’ camp. Despite pressure from France, the Swedes seem to have dropped the idea of returning it.

Moreover, the presidency has strengthened a reference to the fact that the national governments should consider the European Commission’s guidelines on competition law regarding collective agreements for genuine solo self-employed workers.

Reclassification effects

Another critical point regards the functioning of the legal presumption.

According to the presidency, the picture is particularly complex as the effects of reclassifying a bogus self-employed worker may vary across the EU as national frameworks vary in how the situation is handled and sometimes even differ in the definition of a ‘worker’.

A consensus was reached that the reclassified worker should be able to enjoy the rights related to employment status, with wording added that these rights must be “deriving from relevant Union law, national law and collective agreements”.

Applying the presumption in court

In previous compromises, Sweden introduced the principle that the legal presumption should be applicable in tax, criminal and social security proceedings. This provision is tough to swallow for the Spain-led camp that considers it would result in a half-baked presumption.

The presidency did not modify this part but felt the need to stress that the EU countries who wish to use the rebuttable presumption in these kinds of legal proceedings can do so by introducing national legislation.

“Alternative ways of drafting this provision, i.e. as an opt-out clause, have been explored but were not considered to be legally sound,” the document adds.

Discretion for national authorities

The EU Council has also introduced the idea that national administrative authorities should have the discretion not to apply the legal presumption in some instances.

This provision has been redrafted to clarify that it is a possibility, not an obligation, for EU countries to give the authorities such discretionary power.

In addition, two cumulative conditions must be respected: if the authorities are verifying compliance and if the person performing a platform work is manifestly not a platform worker.


Another part of the text where the presidency intervened is on intermediaries. Here a principle was introduced mandating member states to avoid the platforms’ use of intermediaries could lower the workers’ protections provided under the Directive.

“Since intermediaries are constructed and operate in different ways in different member states, it is the understanding of the presidency that a provision that constitutes a clear but general obligation on the member states, is the most suitable and futureproof way forward,” continues the text.

At the same time, since some EU countries raised concerns around this point and the Commission did not cover it in its original proposal, intermediaries have been added to the list of elements the EU executive will have to consider when assessing the Directive’s impact.

Theo Bourgery-Gonse contributed to the reporting.

[Edited by Nathalie Weatherald]


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