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SubscribeWork on digital platforms is an increasingly widespread reality in the European Union (“EU”), where over 28 million people provide services on one of the 500 existing digital platforms, according to data from the European Council.?
However, until now, there has been no specific harmonized standards to guarantee certain working conditions, enhanced protection of personal data or certain homogeneity in the provision of services through this business model.
To address these challenges, Directive (EU) 2024/2831 of the European Parliament and of the Council, of October 23 (“the Directive”) has been approved and published. It will come into force on December 2, 2024, and the deadline for transposition by the Member States is on December 2, 2026.
Objective and subjective scope of application
The Directive extends application to all workers providing services through systems defined by the Directive as digital platforms, regardless of the sector, the contractual nature, and whether the service provision is carried out directly or through an intermediary.
It applies to all digital platforms (web and mobile application), as long as the platform work organized through them is carried out in the EU, regardless of the place of establishment and of the applicable law, as defined by article 2 of the Directive.
New developments and obligations introduced by the Directive
The Directive introduces new rights and obligations, including:
- Legal presumption of employment when there are facts indicating control and direction by the platform, considering the possible labor, social security, administrative and tax consequences arising from a potential reclassification.
Until now, in Spain, this presumption was exclusive to work on digital delivery or distribution platforms for all consumer products or goods (23rd additional provision of the Act Consolidating and Approving the Worker Statute (“TRLET”), introduced by Act 12/2021, of September 28).
Since May 2023, in Portugal, there has been a presumption applicable to all digital platforms (article 12-A of the Labor Code (“CT”).)
- Systems of joint liability of the platforms and the intermediaries in the case of breach of the employment or social security obligations.
- Minimum rights and improvement of working conditions:
- Right to occupational safety and health for platform workers, requiring the assessment of specific risks, including psychosocial and ergonomic risks, and the adoption of appropriate preventive and protective measure.
- Right of workers to protection against unfair or unfavorable treatment for exercising their rights, including protection against dismissal or disciplinary measures (in employment relationships) or contract termination (in commercial relationships), with this protection extending to the “person in charge of supervising automated decisions."
- Obligations relating to transparency, fairness, human oversight, safety and accountability in algorithmic management:
- Double duty of information consisting in informing and consulting the workers’ representatives (or, in their absence, the workers directly) about the introduction of automated monitoring and decision-making systems or substantial changes in their use, as well as providing detailed information on the use of the systems that affect the working conditions, the organization of work or the supervision of its execution.
In Spain, the duties in Article 64.4.d) TRLET must be observed regarding informing workers' representatives about the parameters, rules and instructions on which algorithms and AI systems are based when they affect decision-making and may impact working conditions, and access to and maintenance of employment, including profiling.
In Portugal, platforms must also meet the obligations under articles 106.3.s), 424.1.j) and 466.1.d) CT, in relation to the information to be provided to the workers, the workers committee and labor union representatives regarding the parameters, criteria, rules and instructions on which the algorithms and artificial intelligence systems are based that affect decision-making related to working conditions, as well as access to and maintenance of employment, including profiling and the control of workers' professional activity.
- Limitation of personal data processing, prohibiting the processing of sensitive personal data through automated tracking or decision-making systems, such as data on emotional state, private conversations, or biometric data for multiple identification.
- Human oversight and periodic evaluations of the effects of each decision made or backed by monitoring and decision-making systems, as well as the right for human participation in the review of the mentioned decisions.
- Requirement to carry out an impact assessment when the processing involves a high risk for the workers’ rights and freedoms.
- Cooperation and exchange of information between the Member States to ensure effective enforcement of the Directive, particularly in crossborder situations, through a declaration of the work performed.
- Promotion of collective bargaining: encouragement of social dialog and effective participation of the workers’ representatives.
To conclude, the Directive marks an important step in the adaptation of the regulatory framework to the reality of platform work, but also raises new questions and challenges that Member States must address in their national context, at the latest within two years. To do so, they will also have to consider the obligations arising from the domestic labor law (TRLET in Spain and CT in Portugal), and the European regulations on data protection (GDPR) and on artificial intelligence (AI Act).
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