On 11 March 2024, the European Union’s employment and social affairs ministers voted to adopt the Platform Work Directive (‘PWD’). First proposed by the Commission in December 2021, the Directive had been the subject of intense negotiations for months, not least given significant opposition from the French government.

The instrument’s overarching goal is to ‘improve working conditions in platform work’. To this end, it seeks to combat false self-employment in platform work, but also to create a comprehensive set of rules for algorithmic management applicable to all workers, irrespective of the nature of their employment status. New rights regulate the use of sophisticated technologies, including Artificial Intelligence (‘AI’), to augment and replace traditional management functions: from hiring and managing workers to firing them.

A (Rebuttable) Presumption of Employment

The Directive’s provisions concerning employment status – a hotly contested issue – nearly scuppered the entire instrument. What is left of the ‘legal presumption’ of employment (Article 5) is no longer as central and prominent as in the original proposal. Instead of setting out criteria in the Directive itself, it is now up to each Member State to ‘establish an effective rebuttable legal presumption of employment that constitutes a procedural facilitation to the benefit of persons performing platform work’ (Article 5(2)). The Directive offers some guidance to that effect in Article 5(1), but this important task is now primarily delegated to Member States.

In performing this obligation, national legislators will need to pay due regard both to existing national (case) law and collective agreements, as well as to CJEU precedents. For the majority of Member States this will in effect require introducing a presumption aligned with the dominant jurisprudential tendency to recognise large swathes of ‘gig-workers’ as employed by, or at least as workers of, the platform. A strict observance of the non-regression principle set out in Article 26 will be key in this regard – not least as it is phrased more broadly than analogous provisions in other directives.

Different Rights, Different Scope?

As a result of the Directive, national legislators and national and supranational courts are left with the invidious task of juggling and coordinating a number of different personal scopes for the attribution of rights to platform workers. The PWD adopts the traditional notion of employment for the attribution of the presumption (based on control and direction), whereas a much broader personal work status is granted to the generality of ‘algorithmic management’ provisions, as well as provisions such as Article 23, which protects against dismissal and equivalent sanctions. These rights apply to all ‘persons performing platform work.’

Towards Rights for All?

A similarly broad scope would apply to collective bargaining rights and to equality legislation, courtesy of the Commission Guidelines on solo self-employment and the CJEU’s decision in Case C-356/21, JK v T. The scope for rights stemming from the General Data Protection Regulation is even broader, and has already begun to underpin ‘strategic litigation’ against gig economy platforms. We feel relatively confident in suggesting that, as the concept of ‘person performing platform work’ is – in reality – the central organising concept for this Directive, it is likely to generate a sufficient centripetal influence in respect of other rights that currently only apply to employees or workers with a more traditional employment contract or relationship. As algorithmic management rights, but also collective bargaining, the right to organise, the equality and health and safety acquis, and even dismissal protection rights apply to all persons performing work, it will become increasingly difficult to justify narrower scopes for other more ‘traditional’ rights, from the right to predictable hours and working time limits to annual holidays.

The International Dimension

The recitals to the Directive repeatedly link key provisions to relevant International Labour Organisation (ILO) instruments (see, for example, Article 4 and recital 28, explicitly referring to the ILO’s Employment Relationship Recommendation 198 (2006) on primacy of facts). The consensus emerging in Brussels is a good omen for current efforts taking place at the ILO to deliver a similar international instrument.

Overall, then, the message is one of cautious optimism, but also of heightened vigilance for a period and process of implementation that will be extremely important for the regulation of platform work in particular, but also for the future(s) of work regulation more generally.

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