Description
Digital labour platforms have gained prominence due to increased digitalisation and the emergence of new business practices. In 2021, over 28.3 million people in the EU were estimated to source work through digital labour platforms. Of the 28.3 million, 5.5 million were estimated to be subject to a certain degree of control from the platform they work through. In that sense, the European Commission stated that ‘given that around 90% of people working through platforms are estimated to be formally self-employed, it is likely that most of those 5.5 million people are misclassified’ (European Commission, 2021b).
Recognising these challenges, in 2024 the EU adopted Directive (EU) 2024/2831 on improving working conditions in platform work (hereinafter ‘Platform Work Directive’)1 to facilitate the correct determination of the employment status, improve transparency in platform work, and promote transparency, fairness, oversight, safety and accountability in algorithm management. The Directive specifically targets bogus self-employment, aiming to mitigate its prevalence by introducing new legal provisions. The Directive establishes a rebuttable legal presumption of an employment relationship, shifting the burden of proof onto platforms to demonstrate that a person performing platform work is not in an employment relationship. This study reviews the provisions in the Platform Work Directive addressing bogus self-employment, and, particularly, the legal presumption of employment. It examines the concept of ‘worker’ in national case-law and in the case-law of Court of Justice of the European Union. Additionally, the study explores how legal presumptions are applied across different Member States, the role of labour inspectorates and courts, and the practical consequences of misclassification for workers and platforms. Finally, the study identifies tools and good practices that are currently applied to support effective enforcement and improve the implementation of legal presumptions.
The study is based on desk research and a questionnaire completed by the members of the European platform tackling undeclared work (the Platform). To get insights into the existing legal presumptions of employment, an in-depth questionnaire was sent to Belgium, Italy, the Netherlands Portugal, and Spain. To identify the tools and strategies that can support enforcement authorities assessing the worker or self-employed status for the enforcement authorities, a questionnaire was distributed to all EU Member States.
The Platform Work Directive: The new provisions addressing bogus self-employment
To address bogus self-employment, the Platform Work Directive requires Member States to implement appropriate and effective procedures to verify and ensure the determination of the correct employment status of persons performing platform work (Article 4(1)). The Platform Work Directive also introduces a legal presumption of an employment relationship ‘where facts indicating direction and control, in accordance with national law, collective agreements or practice in force in the Member States and with consideration to the case-law of the Court of Justice are found. Where the digital labour platform seeks to rebut the legal presumption, it is for the digital labour platform to prove that the contractual relationship in question is not an employment relationship as defined by the law, collective agreements or practice in force in the Member States, with consideration to the case-law of the Court of Justice (Article 5(1)).
The formulation chosen by the Platform Work Directive in its Article 4(1) and Article 5(1) requires that the
employment contract is defined by Member States or social partners ‘with consideration to the case-law of the Court of Justice’.2 This suggests that the Court of Justice may apply the legal presumption of employment in cases where Member States have a too narrow definition of an employment relationship. Indeed, the most recent case-law of the Court of Justice points towards a broad interpretation of the concept of ‘direction and ‘control’.
The concept of ‘direction and control’ and ‘organisation’ in national case law
When addressing persons performing platform work cases, court rulings in the different Member States remain tied to each country’s legal concept of ‘worker’. However, given that the platforms are multinational and operate similarly across countries, courts in different Member States are inspiring each other towards a form of harmonisation. Additionally, there has been a significant shift in the approach to the ‘test’ of employment. The focus has shifted from explicit instructions, specific timetables, the formal possibility of substituting or rejecting tasks to indicators showing integration in the platform such as i) the standardisation of services provided by the platform; (ii) the platform selecting specific workers for tasks; (iii) the use of ratings or performance scores; (iv) the platform managing client payments; (v) workers appearing as part of the company (e.g., wearing logos or being featured on the website); (vi) workers performing services central to the platform’s core business; and (vii) the platform itself being the main means of production, minimising the relevance of workers providing tools or accessories such as bicycles, motorcycles, or cars.
Current regulatory frameworks applicable to platform workers
Belgium, Portugal, and Spain have established legal presumptions of employment for platform work, each with varying scopes and mechanisms. While Belgium and Portugal apply broad presumptions across sectors, Spain’s
approach is narrower but reinforced through criminal sanctions and specialised inspections. Meanwhile, the Netherlands has not established a specific legal presumption of employment for platform workers. However, a general presumption exists in the Dutch Civil Code, and applies where a service provider has performed work for another party for at least three consecutive months, weekly or for at least twenty hours per month. Italy does not explicitly have a presumption of employment in platform work. However, its legislation allows for the application of the ‘discipline of the employment relationship’ to self-employed collaborators if their work is organised by a platform, a concept known as ‘hetero-organisation’. This provision creates a pathway for extending employment protections to platform workers when platforms exert significant control over the organisation and execution of tasks without reclassification. This approach reflects Italy’s acknowledgment of the potential for worker exploitation using the self-employed contract, aligning with broader efforts to enhance labour protections.
Tools and strategies supporting effective enforcement
To effectively support enforcement authorities in assessing whether a person performing platform work is an employee or a self-employed person, various tools and good practices have been identified across different European countries. These include information-sharing between agencies and jurisdictions, non-binding guidelines, awareness-raising campaigns, and training tailored to the complexities of platform work. Measures to encourage voluntary compliance by companies are also proposed, such as self-assessment mechanisms and awareness campaigns to foster clarity and adherence. A particularly effective tool could be a user-friendly, digital self-assessment tool accessible via a web portal, providing workers with clear guidance on correct classification while exerting pressure on employers to comply.