Platform Work Revisited – The New EU Directive

Responding to the rapid expansion of the digital labour economy, EU Directive 2024/2831 on Improving Working Conditions in Platform Work was adopted on the 23^{rd of} October 2024. Member States are obliged to transpose it into national law by the 2^{nd of} December 2026.

This Platform Work Directive aims to improve working conditions for inpiduals performing platform work and to strengthen the protection of their personal data. The Directive seeks to ensure fair treatment, transparency, and legal certainty across all EU Member States. Specifically, it addresses challenges such as misclassification of employment, algorithmic management, and opaque data practices.

The three core objectives of the new Directive are the following:

1. Ensuring the correct employment status of persons working through digital labour platforms;
2. Promoting transparency and fairness requirements in relation to Algorithmic Management and Data Protection; and
3. Guaranteeing worker protection to platform workers.

Scope of the Platform Work Directive

The Platform Work Directive lays down minimum rights for every person performing platform work in the EU who has or who is deemed to have an employment contract or employment relationship. In addition, the Directive lays down specific rules on the protection of personal data and algorithmic management for all natural persons performing platform work, including those who do not have an employment contract or relationship.

'Digital labour platform' means a natural or legal person providing a service which meets all of the following requirements: (i) it is provided, at least in part, at a distance by electronic means, such as by means of a website or a mobile application; (ii) it is provided at the request of a recipient of the service; (iii) its necessary and essential component is the organisation of work performed by inpiduals in return for payment, irrespective of whether that work is performed online or in a certain location; and (iv) it involves the use of automated monitoring systems or automated decision-making systems.

Naturally, the Directive applies to all digital labour platforms which organise platform work performed in the EU, regardless of their place of establishment. It covers both exclusively online and on-location platform work. The latter is a hybrid way combining an online communication process with a subsequent activity in the physical world.

Employment Status under the Platform Work Directive

The Platform Work Directive's recital 8 highlights that platforms, through their algorithms, often organise and manage work in a manner typical of an employer, notwithstanding the designation of platform workers as "self-employed". The Directive introduces a rebuttable legal presumption that a contractual relationship between a digital labour platform and a person performing platform work is an employment relationship where facts indicate direction and control by the platform. The ascertainment of the existence of an employment relationship shall be guided primarily by the facts relating to the actual performance of work, including the use of automated monitoring systems or automated decision-making systems in the organisation of platform work. Really and truly, the source of this pillar of the Directive is the CJEU's interpretation that the decisive factor lies in the factual circumstances not in the contractual terminology.

The concept of 'direction and control' is interpreted broadly. A platform may exercise direction and control not only through explicit instructions or supervision, but also indirectly. As an example, a platform may apply punitive measures, adverse treatment, or pressure on the platform worker or may set conditions for how work must be performed or priced. The usage of automated systems to allocate tasks and evaluate performance also serves as an indication of direction and control.

In recent years, the Court of Justice of the European Union (CJEU) has delivered key judgments on determination of a relationship based on 'direction and control' and this in the light of its stance that there is a European, autonomous interpretation of the concept of "worker" under EU law, irrespective of the formal classification given to the relationship by the parties involved or by national laws themselves. In the judgments of the Court of Justice of 10 September 2015, C-47/14, Holterman Ferho Exploitatie and Others, and of the 20 November 2018, C-147/17, Sindicatul Familia Constanța and Others, it was stated that the essential criterion for an employment relationship is performing work for a certain period for and under the direction of another person in return for remuneration. Hence, the employment relationship is based on hierarchical control and subordination.

In the context of platform work, a notorious case is the Order of the Court (Eighth Chamber) of the 22^nd of April 2020, C-692/19, B v. Yodel Delivery Network Ltd. This case involved the status of a courier delivering parcels for Yodel under a contract that defined him as a self-employed contractor. According to the Order, if an inpidual genuinely has the freedom to utilize subcontractors to perform the work, to freely refuse work or determine their number, to provide similar services to third parties (example, the platform's competitors) and to set his own work schedule, such a person should not be considered a "worker" in terms of EU Law. Actual subordination and economic dependence would be missing.

Although not a labour law case, the case Asociación Profesional Elite Taxi v. Uber Systems Spain SL (C-434/15, judgement of 20 December 2017) gives food for thought. Here, the Court recognised in its reasoning the existence of actual economic and functional dependence between drivers and Uber. Uber created a new urban transport service by selecting drivers, setting fares, organising the entire process through the application. Consequently, drivers did not act independently but operated within Uber's organisational framework. They were described as "false self-employed" workers in the 2014 FNV Kunsten Informatie en Media v. Staat der Nederlanden (C-413/13, judgement of 4 December 2014).

The issue as to whether there is a self-employment arrangement rather than an employment one creates a shift in the burden of proof in that it is the platform which is obliged to demonstrate genuine self-employment. In the absence of such proof, in determined administrative or judicial proceedings where the correct employment status of person performing platform work is a pertinent issue, the platform worker shall be deemed to be an employee for all intents and purposes of law.

Data protection and algorithmic transparency obligations

The Platform Work Directive introduces new data protection requirements which go well beyond the requirements of the GDPR. Article 7 introduces an absolute ban on the processing of certain sensitive personal data of platform workers by means of automated monitoring systems or automated decision-making systems, which cannot be circumvented even with the consent of the platform workers. This prohibited data includes:

• Data that allows conclusions to be drawn about the emotional or psychological state of the platform worker;
• Personal data of a person performing platform work while that person is not offering or performing platform work;
• Private conversations;
• Personal data to predict the exercise of fundamental rights, including the freedom of association, the right of collective bargaining and action or the right to information and consultation as laid down in the Charter;
• Data inferring sensitive information such as on race, ethnic origin, political opinion, religious beliefs, trade union membership and sexual orientation; and
• Biometric data to establish the identity of the platform worker by comparing it with multiple entries stored in a biometric database. However, biometric verification to confirm the identity of a platform worker by comparing their data with their own previously provided biometric data is permitted, provided it complies with applicable data protection laws.

Transparency requirements and algorithmic monitoring

In line with the ban on the processing of certain types of data, the Directive provides for strict transparency obligations. Digital labour platforms must disclose specified information about all automated systems that have an impact on the working conditions of platform workers in a transparent and clear manner. Platform workers have the right to detailed information about how the algorithms work and the decision-making criteria. Moreover, digital labour platforms must inform workers about changes that affect the automation systems. Both platform workers and self-employed persons who are 'persons performing platform work' must be informed. Workers' representatives must be informed of all relevant systems and their characteristics prior to the use of an automated monitoring or decision-making system. The Directive specifies that if there are no workers' representatives, the digital labour platforms must inform the workers directly.

In addition to the transparency obligations, the Directive requires regular human monitoring of all automated systems that affect platform workers. Automated and autonomous monitoring and decision-making systems should be and remain human-centred. A review must take place at least every two years and be specifically focused on discrimination risks and other negative effects. For digital labour platforms, this means that they must provide qualified staff with the ability to scrutinise automated decisions and the authority to adjust or revoke them if necessary.

Data protection impact assessment

Digital labour platforms must carry out a data protection impact assessment to comprehensively assess the impact of their automated systems on the rights and freedoms of platform workers. This means they must evaluate all systems used without exception and make appropriate adjustments in order to meet the high protection standards provided for in the Directive.

Right to human review and explanation of automated decisions

Article 11 gives platform workers the right to human review and explanation of automated decisions that significantly affect their employment relationship, such as dismissals or contract terminations. Digital labour platforms are obliged to provide a written explanation of such decisions and give those affected the opportunity to challenge and rectify them. However, Article 11(5) of the Directive states that this does not apply to platform workers who are "business users" within the meaning of Article 2(1) of Regulation (EU) 2019/1150. "Business users" is defined as any private inpidual acting in a commercial or professional capacity who, or any legal person which, through online intermediation services offers goods or services to consumers for purposes relating to its trade, business, craft or profession.

Worker Representation in EU Platform Work Regulation

As with the majority of EU Labour Law Directives, platform workers' representatives have the right to be informed and consulted in the same way as other workers. The Directive also states that these right covers decisions likely to lead to the introduction of or to substantial changes in the use of automated monitoring systems or automated decision-making systems.

In order to substantiate the right to be represented, the platform workers shall be provided with digital communication channels for interaction and representation. Platforms must refrain from accessing or monitoring those communications.

Health, Safety and Well-being

Platforms must evaluate and mitigate risks arising from automated monitoring or decision-making systems, including psychosocial and ergonomic risks. They must introduce preventive and protective measures appropriate to those risks.

Transparency and Oversight by Authorities

On a national level, Member States must require platforms to declare platform work to competent authorities and to make information available to representatives of persons performing platform work, as updated at least every six months or where substantially modified. In case of SMEs, Member States have discretion to space this timeframe Information includes:

• The number of persons performing platform work, disaggregated by level of activity and by contractual or employment status;
• The general terms and conditions governing those contractual relationships;
• The average duration of activity, average weekly hours worked, and average income for persons performing platform work on a regular basis; and
• The intermediaries with which the platform has contractual relationships.

Competent authorities and worker representatives have the right to request additional clarifications and details, including about the employment contracts in place, and platforms must provide substantiated responses without undue delay.

Maltese Employment Law on Platform Work – Beyond the Directive

The Digital Platform Delivery Wages Council Wage Regulation Order (S.L.452.127) (the "Order") has been promulgated in 2022, that is, more than a year before the new Directive on Platform Work. Maltese Law implemented measures beyond the specific ones address in the Directive. The following constitute the main national-driven measures of the Order:

1. When adopting the prominent principle of the then EU proposal, whereby all persons performing digital platform work will be presumed to be in an employment relationship with the digital labour platform for whom the platform work is carried out or, the work agency, as the case may be, the Maltese take on the Directive, the Digital Platform Delivery Wages Council Wage Regulation Order (S.L.452.127) (the "Order") sought to follow the steps of an 'older' version of the Commission Proposal of the Directive whereby control is presumed upon the satisfaction of a number of criteria. Indeed, according to the Order, the platform or agency has to prove that it does not control the platform work because it does not fulfil at least four of the following five criteria in relation to the person performing platform work:

1. the effective determination of, or stipulating the maximum limits for the level of remuneration;
2. the requirement that the person performing digital platform work respects specific binding rules with regard to appearance and conduct towards the recipient of the service or performance of the work;
3. the supervision of the performance of the work or the verification of the quality of the results of the work, including by electronic means;
4. the effective restriction of the freedom, including through sanctions, to organise one's work, in particular the discretion to choose one's working hours or periods of absence, to accept or to refuse tasks or to use sub-contractors or substitutes; and
5. the effective restriction of the possibility to build a client base or to perform work for any third party.

Upon the satisfaction of four of the above, the digital labour platform is considered as the employer of the platform worker.

2. Once an employment relationship is established, the Maltese Employment Law regime applies in full. The Order in fact determines the effective date of employment, probation, the employment's duration and the normal working week in the same way as the Employment Status National Standard Order (S.L.452.108).

3. As a proper Wages Council Wage Regulation Order, the Order lays down set of labour law rights particular to the platform worker. Platform workers shall be granted the same wages and, the same employment conditions as comparable employees employed by the same employer. In case there are no comparable employees, the national minimum wage should apply. Overtime, sick leave, other special leaves.

4. The Order requires the employer to provide platform workers at its expense, appropriate vehicles that are properly equipped and maintained in good running order for use. Use of electric or kick scooters is prohibited. The employer shall also provide all equipment, material and tools, including the uniform and safety apparel, a mobile phone and internet services.

Concluding Remarks

According to the European Commission's Impact Assessment report, it was estimated that between 1.7 million and 4.1 million out of the 5.5 million people were to be be reclassified as workers by virtue of the new Directive, and consequently, gain the protection afforded by employment law, including rights to a minimum wage, rest, paid leaves,health and safety protection to name a few. Although, today, one cannot readily say whether the numbers represent the true state of affairs or otherwise, we can say that the Directive has elevated the issue of vulnerability of the platform worker to the top of the agenda. That said, the Directive does not totally dismiss the idea that platforms can indeed engage genuine self-employed people thereby raising the compliance degree between contractual provisions and effective work organization. In turn, the Directive does not hinder the development of non-traditional business and novel practices. Companies could reform their business models ensuring the autonomy and entrepreneurialism which genuine self-employment actually entails. Furthermore, the Directive has brought about a degree of legal certainty regarding the status of people engaged in platform work, allowing them, and not just the platforms, to make conscious and voluntary choices in the light of the protection afforded by the new law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.