[This article was updated at 18:25, following information provided to Euractiv that 12 member states had expressed discontent, as opposed to only seven, as stated in the original piece]
Member states’ ambassadors failed to find a majority over a platform work directive deal struck last week, dealing a heavy blow to the Spanish Presidency of the Council of the EU and raising concerns the file may not get through before the end of the mandate.
A provisional deal found last week at the outset of negotiations between the European Commission, the Spanish Presidency and MEPs – known as ‘trilogues’ – failed to secure a qualified majority in a Committee of Permanent Representatives (Coreper) on Friday (22 December).
No formal vote was even held on the text, as it became clear there would be no majority. According to information obtained by Euractiv, 12 member states, including the Baltics, Bulgaria, Czech Republic, Finland, France, Greece, Hungary, Ireland, Italy, Sweden formally said no to a deal they believed was too far gone from the Council’s version of the directive.
Under a qualified majority voting (QMV) system, a file is adopted in Council when at least 55% of member states vote in favour and the proposal is supported by member states representing at least 65% of the total EU population.
Under current circumstances, member states in favour only represented approximately 38% of the EU’s population. As Euractiv understands, Germany, which historically abstained from taking an official stance on the file due to coalition in-fighting, did not take the floor.
This deals a heavy blow to the Spanish Presidency, which had made the bold decision to go into final trilogue negotiations without Coreper’s a priori approval and red lines, as is customary.
This means Friday’s vote was critical – but the Spanish deal was just not good enough, member states ruled.
Several people involved in the negotiations confirmed trilogue negotiations would continue under the Belgian Presidency, as of 1 January 2024.
Thorny legal presumption
The platform work directive seeks to ensure workers of digital platforms such as Deliveroo and Uber have the correct contractual status based on their treatment and working conditions. The legislation also sets new ambitious provisions on algorithmic management in the workplace.
The directive faced significant backlash and stalemates ever since it was first introduced in December 2021. The Council of the EU and the European Parliament could never quite see eye to eye, especially on the architecture and functioning of a new legal mechanism known as the legal presumption of employment.
Under this new system, self-employed platform workers could be reclassified as full-time employees based on their working relationship with digital platforms.
However, how the presumption is triggered, who can trigger it and the modalities of the presumption’s rebuttal have been the source of heavy disagreements – and it is ultimately what led to the demise of the provisional agreement in Coreper.
The Commission’s initial proposal stipulated that the presumption could be triggered if two out of five criteria which hint at subordination were met. The Council increased the threshold to three criteria out of seven, while the Parliament’s original stance was to remove the criteria to focus on the actual working conditions.
The agreement that came out of the trilogues envisaged the maintenance of criteria – dubbed ‘indicators’ by the Parliament rapporteur social-democrat Elisabetta Gualmini (S&D). If two out of five indicators are met, relevant national authorities and judiciary bodies are entitled to trigger the presumption.
France leads the ‘nay’ charge
But that just didn’t make the cut.
France, a long-time critic of the directive as it was drafted, was the first country to oppose the trilogue deal publicly, saying that the wording of those new indicators, and the lowering of the threshold to trigger the presumption, stood too far from the Council’s own version.
On Wednesday (20 December), French Labour Minister Olivier Dussopt told French senators he could not agree to the provisional deal.
France, unlike other EU countries, has a unique approach to platform work. It favours self-employment, but with extra labour rights and enhanced ‘social dialogue’.
The Czech Republic, Baltic states and Hungary had also made clear last week, behind closed doors, that they had concerns regarding the provisional agreement, according to a read-out of an ambassadors’ meeting obtained by Euractiv.
Where to from here
The clock is ticking to find a working deal before the legislature comes to a close and EU election campaigning kicks off.
Today’s outcome shows the Council’s wiggle room to agree on something substantively different to its own version is close to impossible. Member states could go back to the drawing board and agree a new joint position on the directive in early 2024, though it is unlikely to differ greatly from what’s already on the table.
From the Parliament’s perspective, rapporteur Elisabetta Gualmini is in a tough spot. She’s already distanced herself significantly from the Parliament’s official position in the past few weeks – and has ruffled some of her closest allies’ feathers doing so, namely The Left and the Greens political groups.
However, should she take extra steps towards the Council’s version, it’s likely she will still secure a majority of the votes with other centrist and right-wing political forces.
Whether this fits with her own personal politics is a separate question. However, such moves may very well determine whether a platform work directive ever gets adopted.
[Edited by Nathalie Weatherald]
