EU Directive: presumed subordination in digital platforms

Prepared by Francesca Tironi, Luca Saglione and Geljarda Domi

On November 11, 2024, the Directive (EU) 2024/2831 of the European Parliament and the Council of October 23, 2024, concerning the improvement of working conditions in work through digital platforms was published in the Official Journal of the European Union.

The Directive, that will come into force on December 1st, 2024, and must be transposed by the Member States by December 2nd, 2026, aims to improve the working conditions of digital platform employees and to protect the personal data of people who work through digital platforms.

A legal presumption of employment relationship is introduced when facts indicating direction and control are found, in accordance with national law, collective agreements, or practices in force in the Member States, taking into account the case law of the Court of Justice.

This presumption implies that it is up to the platform to prove that there is no subordinate relationship in case of disputes. This aspect is fundamental in the process of protecting employees from exploitation risks and job instability, usual situations in digital platform work.

Another important element concerns data processing as it is stipulated that digital labour platforms, through automated monitoring systems or automated decision-making systems, must not process:

personal data related to the emotional or psychological state of the person performing work through digital platforms;
personal data related to private conversations, including exchanges with other people performing work through digital platforms and representatives of people performing work through digital platforms;
personal data of a person performing work through digital platforms when they are not performing work through the same or not proposing to do so;
personal data to predict the exercise of fundamental rights, including freedom of association, the right to negotiate and take collective action, or the right to information and consultation established in the Charter;
personal data to infer racial or ethnic origin, migrant status, political opinions, religious or philosophical beliefs, disability, health status, including chronic diseases or HIV status, emotional or psychological state, union membership, sexual life or sexual orientation of a person;
biometric data to establish identity by comparing them with biometric data of individuals stored in a database.

Digital platforms must conduct a data protection impact assessment as the processing of personal data through automated monitoring systems or automated decision-making systems can pose a high risk to the rights and freedoms of individuals.

The regulation extends regarding the use of algorithms by platforms and data management, ensuring that there is adequate human oversight on automated decisions.

Finally, Member States will need to take necessary measures to prohibit the dismissal or termination of the contract in other forms of people who perform work through digital platforms; more in details, these people can request to receive duly justified reasons for such termination.

Although the directive has not yet been implemented in Italy, it is clear that the possible organizational and regulatory impacts on various aspects of compliance in the employment relationship require a comprehensive assessment of the operators in the sector from now on.