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15/09/2020

Digital Services Act: New Forms of Work

Economy

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Charles de Froment

Founder of Pergamon

The European Digital Services Act aims at empowering digital intermediaries in all areas, including labor. The new forms of work on these platforms have generated numerous debates in France and abroad. What balance should be struck between the need for social protection for platform workers and their desire for freedom? How can we benefit from the employment generated by the platforms without making jobs more precarious? This article explores these questions, based on the report Travailleurs des plateformes : liberté oui, protection aussi, published by Institut Montaigne in April 2019 (available only in French).

In its April 2019 report Travailleurs des plateformes : liberté oui, protection aussi, Institut Montaigne had described the legal, economic and social challenges of the development of work on digital platforms. With the exception of the decision of the Court of Justice of the European Union (CJEU) on Uber (see below and in the report, pp. 124-128), little mention was made of European legislation and case law, which, in the specific field of on-demand work platforms, does not play a particularly decisive role today.

European texts and regulations have indeed aged and lost their relevance for all platforms: the challenge is now less about exempting these digital platforms from their responsibility, and more about precisely defining the right liability regime associated with their activities.

This is what the legislative framework currently being prepared in the Digital Services Act should address. Let us hope that this DSA will make it possible to harmonize European regulations on new forms of labor, of which today there are almost as many as there are member states in the Union.

The current legal framework is obsolete

The European texts governing digital services (European Parliament Directive 98/34/EC, Directive 2000/31 on electronic commerce, Directive 2006/123 on services in the internal market, Article 56 of the TFEU), some of which are more than twenty years old, had the primary objective of encouraging the development of e-commerce and preventing the implementation of systems for a preliminary legality control of content and services offered online. They therefore give platforms the possibility of invoking the principle of the freedom to provide services in the face of attempts at state regulation and to benefit from an exemption from liability for content and offers put online by third parties.

What are the issues at stake?

But this regulatory framework has become obsolete. It was undoubtedly better fitting when the first e-commerce and social networking sites resembled classified ads or online directories: eBay or Craigslist were indeed simple content hosts. It would have seemed excessive to hold them accountable for the legality or otherwise of the content and activities they hosted at the time.

What online platforms offer has since considerably evolved qualitatively, especially on the so-called working platforms. Websites such as Le Bon Coin, Indeed or LinkedIn continue to act as "simple" intermediaries. But mobility and delivery platforms such as Uber, Deliveroo, Stuart or Glovo and, to a lesser extent, freelance or jobbing platforms ( Comet, StaffMe, JobbyPepper, etc.) are much more "interventionist". They sometimes set or suggest a price, allow users to rate each other, set strict rules in their terms and conditions. Whether they wished for it or not, for some workers they have become an essential, sometimes the only, means of accessing income.

The stakes of the "interventionism" of platforms

This "interventionism" raises at least three problems.

Problem 1, the status of ride-hailing platforms

The first is that of the status of the platforms: neither totally "digital information services", in the sense of Directive 98/34/EC, nor traditional players, their regulation is not self-evident. Indeed, the European Commission noted in a communication from 2016, A European agenda for the collaborative economy, "whether or not a collaborative platform is considered to also provide the underlying service will normally have to be established on an individual basis. Several factual criteria and legal issues may play a role in this regard. The level of control or influence that the collaborative platform exerted on the provider of these services will generally have a large importance."

Considering themselves protected by Directive 98/34/EC, Directive 2000/31 on electronic commerce, Directive 2006/123 on services in the internal market and Article 56 of the TFEU, the first ride-hailing platforms initially pleaded to be exempt from national legislations specific to public passenger transport Where necessary, compliance with these rules was the business of the self-employed drivers themselves.

The first ride-hailing platforms initially pleaded to be exempt from national legislations specific to public passenger transport Where necessary, compliance with these rules was the business of the self-employed drivers themselves.

In Asociación Profesional Elite Taxi v. Uber Systems SpainSL, Uber concluded that "the charges against it were null and void" for failure to comply with national rules governing passenger transport. However, given Uber's position in the transportation market and the growing sophistication of its service offering, the position of technological neutrality did not hold up in front of European judges. Taking up the conclusions of Advocate General Szpunar, the CJEU, for its part, considered in its decisive judgment of 20 December 2017 that the activities of the UberPop platform were indeed digital intermediation... but in the transport sector, thereby undermining the idea that the platform acted solely as a digital platform for a neutral meeting point between supply and demand.

The Court concluded: "This intermediation service must therefore be regarded as an integral part of a global service whose main element is a transport service and, therefore, as meeting the qualification not of 'information society service'... but of 'service in the field of transport'". Since transportation is a national responsibility, each EU country can therefore regulate the transportation activities of hubs, such as Uber, as it sees fit.

Problem 2, the status of workers

The second problem is that of the status of the workers. The higher the degree of interventionism, the more the worker is dependent on the platform and the more likely it is that the contractual relations between the worker and the platform will be reclassified as wage-earning. For freelance or jobbing platforms, the problem is slightly out of place: the risk of re-qualification concerns the company giving the order and, indirectly, the connecting platform that could be accused of the crime of bargaining, lending illicit labor or illegally exercising the profession of a temporary work company.

Problem 3, the social responsibility of platforms

Finally, the third problem concerns the social responsibility of platforms and the social protection of self-employed worker: as the French Labor Law of August 8, 2016 states, "When the platform determines the characteristics of the service provided or the good sold and sets its price, it has a social responsibility towards the workers concerned" (Art. L. 7342-1 Labor Code). To what extent do platforms (or even the principals using the platform) have to ensure, for example, compliance with the European Working Time Directive (2003/88/EC), or participate in the financing of the social protection of the self-employed who use them?

It is therefore urgent, for these platforms as well as for their users, that the rules of the game be clarified and evolve within the framework of the Digital Services Act.

Towards greater responsibility

In the Institut Montaigne report of 2019, Travailleurs des plateformes : liberté oui, protection aussi (available in French only), we made a set of proposals to improve the situation of the workers and to increase the responsibility of the platforms.

Some of them are specific to France, especially in the field of social protection: it would seem illusory for the European Union to adopt social rules that are more favorable than those of France, whose social spending is the highest in Europe.

On the other hand, the European Union could take advantage of the Digital Services Act to clarify European legal doctrine on the specific rights of platform workers:

Europe could first impose the principle of universal coverage against the risks of occupational accidents and diseases, applicable to all platform workers, regardless of their status. In its 2016 communication "European Agenda for the Collaborative Economy", the Commission continued to link "the application of general principles concerning the prevention of occupational risks and the protection of safety and health at work" with the status of employee (status of subordinate worker). Now, at a time when a growing part of the working population, out of necessity or by choice, is deciding to opt for a self-employed status, it seems necessary to create a universal European set of rights for any type of worker, whether self-employed or employee.

At a time when a growing part of the working population, out of necessity or by choice, is deciding to opt for a self-employed status, it seems necessary to create a universal European set of rights for any type of worker, whether self-employed or employee.

Above all, Europe will have to clarify its doctrine regarding the existing distinction between "self-employed" and "employees". In the same communication of 2016, the Commission noted: "The boundaries between self-employed and employees are becoming increasingly blurred and there is an increase in temporary and part-time work as well as in job overlapping" (p.13). But rather than regretting the "blurred" nature of the limits in light of our old criteria, should we not rather redefine its boundaries, so as to secure the development of the platforms, while more clearly affirming the rights and duties of all parties? In the survey we conducted in 2019, we found that the vast majority of workers using platforms wanted to remain independent. Where judges have difficulty seeing the difference between an employee and a self-employed worker, notably because of the similarities between the sociological profiles of the workers, the tasks required and the frequent existence of economic dependence on the employer/contractor, platform workers are well aware of what is at stake: freedom to choose their working hours and days, compliance with a set of specifications versus employer directives, non-exclusivity of the employment relationship.

Following the clarifications made by the CJEU in the Yodel Delivery case, the European Union could thus take advantage of the DSA to define the self-employed worker in the European Union in a positive way: this would be an opportunity to protect the latter against the temptation of algorithmic management, untimely changes in conditions of use, or indirect control of the organization of working time.

Copyright : Oli SCARFF / AFP

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