What’s Happened So Far?

Last December, French left-wing member of the European Parliament Leila Chaibi was interviewed for Jacobin about her role in supporting EU-wide regulation over such firms. These moves to create a directive, proceeding through different EU institutions, came against the backdrop of both struggles by platform workers and sentences passed by labor courts in individual member states, which have often upheld workers’ claims.

In December 2021, the European Commission published its proposals to improve working conditions within the gig economy. After over a year, the European Parliament approved its position for the negotiations, significantly improving the initial text from the European Commission.

The commission had indicated five criteria for what counts as employment. To trigger the presumption of employment (thus handing the digital platform the responsibility to prove that the worker is not a real employee, rather than vice versa) two of five criteria would need to be met. These were: a) the employer effectively setting upper limits for remuneration; b) requirements for the worker to respect specific binding rules (e.g. appearance, conduct toward clients, work performance); c) supervision of the work performance by electronic means; d) the effective restriction of freedom in work organization, absences, and choice of shifts, e.g. by imposing sanctions; and e) the effective restriction on the worker’s possibility of building their own client base. According to a test by the European Trade Union Institute, workers at all the main platforms would have fulfilled most of these criteria: those at food delivery firms Glovo and Deliveroo would have met all of them.

Nevertheless, the European Parliament chose another route, making recognition of workers’ employment status easier. As the EU-wide trade unions had proposed, it set a general and less rigid presumption of employment, more effectively curbing bogus self-employment. Moreover, it amended an important passage of the European Commission’s proposal: the freedom to refuse tasks, choose one’s own working hours or absence periods, and use subcontractors or substitutes, although characteristic of self-employment, does not prove that one is not an employee, per se. This thus meant strengthening the initial text in the direction of greater recognition for workers. This also happened thanks to a split within the largest EU-level party (the center-right European People’s Party), divided into a more market-oriented wing and more socially embedded positions (as in the case of Dennis Radtke, a member of the German Christian-Democrats and an ex–trade unionist).

The major digital platforms fiercely attacked the European Parliament’s position, focusing on lobbying the Council of the EU (the other institution involved in the legislative process), as highlighted by the abovementioned letter in the Financial Times.

Yet, there is also a divergence among national governments, including those that take over the EU’s presidency, which rotates between member states each six months. During the Czech presidency of the EU in the second half of 2022, an attempt to water down the directive was rejected. Among member states, there has generally been a group of countries supporting a prolabor position, led by Spain, and a front pushing in the other direction, led by French president Emmanuel Macron. Progressive forces within the European institutions thus looked forward to Spain taking over the EU presidency, this July 1. Spain’s broad-left government has, after all, already approved a national bill based on the presumption of employment, thanks to the reforming impetus of its labor minister, Yolanda Díaz. However, one recent development radically changed this picture.

Hopes Riding on Spain

Spain is due to take over the EU presidency from Sweden later this week. Yet the Spanish political situation was shaken by the results of the local elections held on May 28. Center-left prime minister Pedro Sánchez took note of the defeat and called for early general elections, which will be held on July 23. The specter of a right-wing victory represents a serious threat. Although not a foregone conclusion, there is a very concrete possibility of a coalition between the conservative Partido Popular and the far-right Vox.

What consequences would this change of government have for issues related to platform work? Sadly they are not hard to imagine. The Partido Popular and Vox opposed the national bill (known as the “Ley Rider,” or “Rider Law”) that recognized the employment status of food delivery platforms’ couriers. Both parties have even evoked the alleged unconstitutionality of this law. The Partido Popular would like to cancel all labor-related reforms of Sánchez’s government, including both the “Rider Law” and the “Labor Reform” that placed constraints on temporary contracts, limited precariousness, and strengthened the centralized collective bargaining system. Is a new climate of deregulation approaching? Moreover, Vox is directly connected to the yellow union Solidaridad, which openly opposed the “Rider Law,” and defended bogus self-employment within the food delivery sector.

This electoral uncertainty makes it difficult to know which government will in fact lead Spain’s presidency of the EU. There is the risk that Spain will go from being the most favorable country for the presumption of employment for platform workers to the least favorable. This would drastically change the balance of power within the EU institutions. As argued by one local commentator, the Spanish left — starting with Sumar (the coalition led by Díaz herself) — must defend the achievements in the field of labor rights that have been made during this government. The difficult pathway of the EU Platform Work Directive illustrates how this is not only a national issue, but a European struggle. Consciously or not, Spanish citizens are also voting on the rights of all European platform workers.

The Council Decision

The weakness of the Spanish coalition after Sánchez’s call for fresh elections was immediately felt within the Council of the EU. With the last act of the Swedish presidency, the council approved its position on the directive. The text undermines the position of the European Parliament and the starting proposal from the European Commission. In particular, the European trade unions complain about two mechanisms: a) the criteria that need to be met for the presumption of the employment have gone up to three out of seven, making the recognition of workers’ rights more difficult; and b) the national derogations requested by member states, offering a possible loophole for the digital platforms.

The Left and Green parliamentary groups labeled this new text ineffective for defending platform workers. Yet, some governments that had obstructed the previous attempts at watering down the directive within the European Council did approve the new document, especially out of fear of what might happen after Spain’s elections. The existing Spanish government itself abstained. However, member states with a prolabor orientation on this question (Belgium, the Netherlands, Romania, Slovenia, Luxembourg, Malta, Spain, and Portugal) wrote a joint statement. They insisted that

establishing a rebuttable presumption of employment is an important step for the protection of platform workers. Nevertheless, in its current design the rebuttable legal presumption of the employment relationship in today’s General Approach is less ambitious and effective than the one proposed by the Commission. The rebuttable legal presumption should be activated under clear and transparent norms and mechanisms. . . . Moreover, it is necessary to establish a legal presumption without restrictions or derogations.

These governments’ position thus remains critical in defending the substance of the directive. On the other side, the French government approved the position of the European Council, albeit with reservations: Macron’s neoliberal extremism wanted an even weaker position.

The game is now shifting to three-way negotiations. Will the European Parliament be able to defend its ambitious proposal? Which Spanish government will manage the negotiations? Will corporate or union lobbying be more prominent? These questions remain to be answered.

Workplace Pressures

While the complicated European legislative process rolls on, the situation within platform workplaces themselves continues to be problematic. This is happening, it must be said, also within the digital platforms that have already recognized their couriers as employees, given the race to the bottom fueled by the absence of a guaranteed framework of labor rights. In Germany, unlike in Italy, Takeaway’s subsidiary is refusing to sign a collective agreement with the Food, Beverages and Catering Union (NGG), despite widespread strikes and struggles. Where the self-employment model is continuing to rule, things are obviously even worse. UberEats announced that it will leave the Italian food delivery market as of July 15. In September 2020, the company signed a collective agreement with a right-wing yellow union in order to keep bogus self-employment and a piece-wage system. Had Uber recognized its workers as employees, this industrial crisis could have been managed through social dialogue and state-supported social shock absorbers, as also stressed by the Italian General Confederation of Labor, the country’s biggest union.

The gig economy model shows all its limits in terms of social protection precisely when it becomes apparent that all the corporate risks are offloaded onto the bogus independent contractors. Strengthened labor laws are increasingly necessary even to recognize workers as full employees and guarantee rights they were meant to have already. Unions, workers’ collectives, social movements, civil society organizations, and progressive political forces must not lose sight of the need for the EU Platform Work Directive — and pressure European institutions accordingly.