France heavily lobbied the European Commission over the rights of platform workers, favouring the position of platforms and raising more concerns of collusion between French decision makers and industry lobbyists, according to documents obtained by EURACTIV.
The documents reveal how France pushed the European Commission to ditch the presumption of employment in the platform workers directive before the proposal was even published, something the platforms, such as Uber, are adamantly against.
“French authorities are not in favour of a rebuttable presumption of an employment relationship”, a letter from the French Permanent Representation to the EU addressed to the Commission reads.
The presumption would run against “a [French] legal model that preserves self-employed workers’ autonomy and flexibility, and chimes with the economic model of platforms.”
The letter, drafted by French Permanent Representation’s social affairs advisor, Emilie Marquis-Samari, was sent on 16 September 2021.
On that same day, the European Parliament adopted a resolution calling for creating a rebuttable presumption of an employment relationship, which would “facilitate the correct classification of platform workers” and reverse the burden of proof.
Simply put, the presumption between a platform and a worker would be that of an employee-employer relationship unless proven otherwise by the platform – something France opposes.
Marquis-Samari also raised concerns over the reversal of the burden of the proof, which would bring a “multiplication of cases brought before the courts”, as an expected 5.5 million workers’ contractual relationships are currently misclassified, according to Commission estimates.
Instead, the letter claims that “social dialogue is key to preserving platforms’ economic activity with an improvement in social rights and working conditions.”
In addition, it encourages the Commission to “acknowledge the heterogeneous nature of platform workers” and outlines “shared criteria to distinguish workers who own most of their revenues through platforms, and thus require further social protections” and those who benefit from greater revenue autonomy.
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France’s fight against EU-wide criteria to trigger the presumption
The Commission’s Directive proposal, published in December 2021, did not take France’s concerns on board. Instead, it went a step further than the Parliament: Article 4 of the proposal, which creates a “legal presumption”, defines a set of five criteria “that indicate that the digital labour platform controls the performance of work. The fulfilment of at least two indicators should trigger the application of the presumption.”
The criteria include the setting of remuneration, binding rules for appearance such as a uniform, supervising performance by electronic means, restricting the freedom to organise one’s working hours or the possibility to work for another client.
Reclassified workers “will enjoy improved working conditions”. At the same time, the genuinely self-employed will benefit from more autonomy and independence “as a result of digital labour platforms adapting their practices to avoid any risk of reclassification”, the Commission stated.
A confidential note from the French Secretariat General for European Affairs, circulated in July 2022, seen by EURACTIV, shows how far the Commission’s proposal is from French interests.
“Changes to the content, number and applicability of the suggested criteria is necessary to limit the presumption of employment to real cases of subordination and avoid risks to our legislation and platforms’ economic model”, the note claims.
According to the document, France is hoping for negotiations to slow down under the Swedish Presidency of the Council of the EU starting January 2023, which oppose the directive.
However, “the Spanish presidency [from July 2023], who are already very advanced on the issue nationally, may choose to sway the directive considerably far from French legislation,” the note adds.
The Permanent Representation declined EURACTIV’s request for comment.
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Uber Files lurking in the background
In a note made public in February 2022, the industry association Business Europe wrote that “the rebuttable presumption of employment and the five EU-level criteria […] is not a balanced and acceptable approach” as it would lead to a “de-factor employee status for platform workers”.
This position raises concerns over France’s closeness with platform lobbies after the Uber Files scandal revealed in July 2022 that French President Emmanuel Macron had been a partner of choice in actively supporting ride-hailing US company Uber’s implementation in France when he was minister of the Economy, between 2014 and 2016 – against decisions made by his own government.
An official investigation committee will be created at the French National Assembly later this month and a hearing on the matter is expected to be organised at the European Parliament in October.
Parallel negotiations within the EU Council and the European Parliament are starting again this week, with the rebuttable presumption taking centre stage in the discussions.
In July, the Czech President circulated a note, seen by EURACTIV, asking the member states to agree on a common approach to how the Commission criteria would trigger the presumption of employment.
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[Edited by Alice Taylor/Luca Bertuzzi/Nathalie Weatherald]