EU: Directive 2024/2831 of 23 October 2024 on improving working conditions in platform work

On 11 March 2024, the European Union has passed a directive that first establishes a presumption of employment for digital platform workers when “facts indicating control and direction are found” (Article 5.1). Secondly, it grants platform workers – whether self-employed or recognised as employees – a number of new “digital rights” with regard to algorithmic management. The text also invites Member States to take “adequate measures to promote the role of the social partners and encourage the exercise of the right to collective bargaining in platform work”. 
To achieve this outcome, Parliament’s negotiators had to agree to the removal of a key provision of this proposal for a directive: that of a presumption of employment harmonised at European level, triggered as soon as an employment relationship ticks a number of boxes indicating a link of subordination between worker and platform, thereby turning the worker into an employee. France completely ruled out this provision, which had been fiercely debated over a period of months, and had already been substantially amended by the Council. As a result, each of the 27 EU Member States is now free to define this presumption in their own domestic law, thus creating a heresy at odds with the very purpose of a directive, which is to harmonise the governing law within the EU. This “back of an envelope” provision, which was finalised between late 2023 and 8 February this year, will lead to different interpretations and to disputes. It does however have the merit of allowing the passing of a much-needed and important law, whose scope extends beyond the simple matter of determining a worker’s status.
This directive is actually the first-ever piece of EU legislation to regulate algorithmic management in the workplace. Chapter 3, which extends to ten or so pages, will firstly be used as the basis for preparing a future directive applicable to all employees (this one only applies to platform work) and, secondly, as a source of inspiration for all social dialogue actors planning to regulate the use of algorithmic management. The directive includes a list of prohibited practices, such as processing of biometric data or personal data in a number of cases; it requires an impact assessment to be carried out in situations where authorised processing of personal data is undertaken; and it demands transparency on automated monitoring or decision-making systems and on human oversight of automated systems.
Lastly, the directive repeatedly calls for workers’ representatives to be involved, and its provisions covering information and consultation rights extend further than current European legislation in this area. It requires platforms to seek the views of these representatives regarding assessment of the impact of personal data processing systems, and to present the results to them. Moreover, “given the technical complexity of algorithmic management systems, information should be given in due time”, to enable representatives to “prepare for consultation, with the assistance of an expert chosen by the platform workers or their representatives”. According to the Commission, this text applies to 28 million workers at the present time and will apply to 43 million by 2025.