‘Not the usual gig’: The personal scope(s) of application of Directive 2024/2831 on improving working conditions in platform work

Abstract

This article examines the complex and innovative personal scope of the EU Platform Work Directive 2024/2831, highlighting its dual framing around the concepts of ‘platform workers’ and the broader category of ‘persons performing platform work’. The authors explore how the Directive partially departs from traditional binary distinctions between employees and self-employed persons by introducing a more nuanced regulatory approach anchored in both labour law and data protection law. The article analyses the scope of key provisions of the Directive, showing how it confers many protections beyond the confines of the employment relationship. It critically evaluates the potential interpretive tensions between Articles 4 and 5 and underscores the Directive's expansive redefinition of platform work. In doing so, the article positions the Directive as a paradigm shift in EU social regulation – one that embraces a universalistic vision of labour rights grounded in the reality of personal work rather than contractual form and employment status. The authors also reflect on the implications for future EU regulation and international standard-setting processes, particularly those led by the ILO.

1. Introduction

Ever since, a decade ago in one of the earlier judicial decisions on the so called ‘gig-economy’, the London Employment Tribunal pointed out that ‘The notion that Uber in London is a mosaic of 30,000 small businesses linked by a common “platform” is to our minds faintly ridiculous’, ¹ it was clear that the correct classification of the employment status of platform workers would take centre stage in any attempt – domestic or supranational - to regulate their working conditions.

The adoption by the EU of a Directive on improving working conditions in platform work, Directive 2024/2831, did not disappoint. The core definition of the scope contained in Article 1(2) as well as the various provisions in the Directive rely on not just one, but at least two, different personal scope-framing concepts, that we cursorily identify in these introductory paragraphs before analysing them in greater detail in the following sections of this article. These two personal scope-framing concepts are substantially different from each other in a number of ways, and most obviously they differ in terms of their breadth, that is to say in terms of the range and types of work relations that they seek to cover.

The broader concept is the concept of ‘person performing platform work’, specifically defined in Article 2(1)(c) as ‘an individual performing platform work, irrespective of the nature of the contractual relationship or the designation of that relationship by the parties involved’. This formula is new and has been coined specifically for the Platform Work Directive (PlWD). It is broader and more comprehensive and inclusive than the concepts of ‘employment contract or relationship’ or ‘worker’ that typically shape the scope of the bulk of the ‘working conditions’ Directives. This breadth is, of course, to a large extent a reflection of the dual legal basis of the Directive, premised as it is on both Article 153 TFEU, as far as its ‘working conditions’ dimension is concerned, but also on Article 16 TFEU, the ‘personal data’ legal base that the Directive shares with, for example, the GDPR Regulation 2016/679. As discussed at greater length in section 2, below, a significant number of provisions and rights contained in the Platform Work Directive are attributed to this broad definition of ‘persons performing platform work’. Most importantly, the bulk of the rights falling under ‘Chapter III – Algorithmic Management’ are ascribable to all ‘persons performing platform work’.

The narrower concept is the concept of ‘platform worker’, defined in Article 2(1)(d) as ‘any person performing platform work who has or is deemed to have an employment contract or 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’. On its own, this provision – somewhat replicating the formula that was first introduced with the adoption of the Transparent and predictable working conditions Directive 2019/1152 (TPWCD) and has been deployed ever since to other ‘working conditions’ Directives – could lend itself to some serious monographic work. ² We explore various elements and implications of this personal scope in section 3 below, but we can already anticipate that this personal scope of application applies to a comparatively smaller number of the Directive's provisions.

These two framing concepts – the concept of ‘person performing platform work’ and that of ‘platform worker’ – essentially define the personal scope of application of the near totality of the provisions contained in the PlWD. They are deployed in, and define, Article 1(2) of the Directive the opening provision of the instrument that sets out the ‘personal scope’ of the instrument. The Directive is quite explicit about both concepts being essential and mutually reinforcing, paragraph (16) of its Preamble expressly stating that its purpose is ‘to improve the working conditions of platform workers and to protect the personal data of persons performing platform work. Both objectives are pursued simultaneously and, while mutually reinforcing and inseparably linked, one is not secondary to the other’.

But – as will become apparent in the following pages of this article – the Directive also contains provisions that depart from this relatively neat binary taxonomy and introduce additional layers of complexity. Three of them are certainly worth of further consideration and will be explored in the following paragraphs.

First and foremost, some of the Articles of the PlWD are affected by a very peculiar elision between the two aforementioned personal scope-framing concepts. This is not exclusively the result of the ‘inseparability’ of the two purposes of the instrument, noted above by reference to paragraph 16 of the Preamble. A good example is the first indent of Article 1(2) setting out the general scope of the Directive itself. It refers to ‘every person performing platform work’ (the broader definition), but in reality qualifies this by adding the words ‘who has or who, on the basis of an assessment of the facts, is deemed to have an employment contract or employment relationship …’ (a formula drawn from the narrower definition). Importantly, even the basic definition of ‘platform worker’ contained in Article 2(1)(d), and quoted above, is not immune from this elision either, which many will read as somewhat contradictory. This will inevitably raise a number of complex interpretative questions, some of which we try to anticipate and engage with in section 3 below.

Secondly, the Directive contains a series of provisions that seek to assist Member States in determining the ‘correct employment status’ of persons performing platform work (in Article 4), including by means of a legal presumption whose broad parameters are sketched out in Article 5. Both Articles 4 and 5 have a broad personal scope definition, as they apply to ‘persons performing platform work’. But crucially, in both cases, the ultimate goal of these two provisions is to ascertain (or presume, under Article 5) ‘the existence of 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’, a formula echoing the narrower concept of ‘platform worker’ mentioned in the previous paragraph. Building on the analysis carried out in section 3, section 4 elaborates further on this somewhat peculiar ‘funnelling down’ process whereby the Directive addresses the ‘Chapter II - Employment Status’ key Articles to all ‘persons performing platform work’, but does so for the purposes of ascertaining the existence of a more narrowly defined ‘employment relationship’. A concern with this approach is that it could be interpreted as suggesting that the determination of the ‘correct employment status’ of ‘persons performing platform work’ is, in essence, a matter for national legal systems. It is clear to us that this is not, and should evidently not be, the case, and we have strong views that Article 4 in particular cannot be read down in such a way, lest to make this and all the provisions of the Directive that only apply to ‘platform workers’ an empty shell.

Thirdly, and possibly in an attempt to mitigate at least some of the consequences of the narrower of the two scopes of application, some Articles of the Directive essentially ‘clone’ the rights attributed to ‘platform workers’ and confer them (sometimes in a somewhat diminished form, but other times by creating functionally equivalent entitlements) to ‘persons performing platform work’. Section 5 will offer some illustrations of this approach. By way of example, we can refer here to Article 13, granting certain information and consultation rights (namely, those contained in Directives 89/391/EEC, 2002/14/EC and 2009/38/EC) to ‘platform workers’ representatives’, the narrower of the two definitions. However, this provision should be read in conjunction with Article 15, establishing ‘specific arrangements for representatives of persons performing platform work other than platform workers’, the broader of the two definitions. This is not, technically speaking, a separate scope of application of the PlWD, as the scoping concepts of both sets of provisions can be traced back to the notions of ‘platform worker’ and ‘person performing platform work’. But it will be interesting to explore, in the years to come, the extent to which these ‘cloned’ rights with broader scopes of application could eventually lead to a generalised extension of certain rights (for instance, information and consultation) beyond employment, alluding to Supiot's ideas published in his 1999 work Au dela de l’emploi. ³

The article will conclude by claiming that the PlWD displays a new and groundbreaking approach to shaping the personal scope of applications of EU Directives in the social field. The most salient feature of this approach is the introduction of the new concept of ‘persons performing platform work’, a very broad concept of working person that is applied to a large number of rights introduced by the Directive and, as discussed below, echoes the notion of predominantly personal work, which we have long advocated in our writings. ⁴ This is no doubt, to a large extent, an effect of the ‘personal data’ legal basis of the Directive, running in parallel with its more obvious ‘working conditions’ basis. But it would be remiss to ignore the innovative traits of the personal scope-framing concept used in the ‘working conditions’ provisions contained in the Directive – the concept of ‘platform worker’. This concept undoubtedly relies on the ‘contract and employment relationship’ formula that shapes the bulk of the social acquis Directives. But the novel emphasis on broad ‘re-classification’ criteria, such as primacy of facts and the strategic importance of the presumption of status, are genuinely game changers. The Directive also combines and deploys these two main personal scopes in highly innovative ways, sometimes eliding and sometimes juxtaposing the two. This, we believe, will inevitably produce interpretative questions that only the Court of Justice of the EU can ultimately answer. What is clear to us is that the days where EU Directives could demarcate their personal scope simply by reference to the national concepts and definitions of ‘employment contract’ or ‘employment relationship’ ⁵ are long gone and, as we have extensively argued in many of our writings, should not be missed.

2. The broader ‘person performing platform work’ definition

As noted above, the majority of the Articles in the Directive introduce rights that are addressed to persons performing platform work. For example, the majority of the very novel ‘Algorithmic Management’ Articles contained in Chapter III (and certainly Articles 7, 8, 9, 10, 11, and 15) contain provisions and rights that are attributable to ‘persons performing platform work’. So do some of the Chapter IV (Transparency) and Chapter V (Remedies and Enforcement) provisions, and specifically Articles 17, 18, 19, 20, 22, 23, and 24. Finally, in this Directive, the non-regression clause, and some of the other Chapter VI – Final provisions, also apply to this wider concept of working persons.

The term ‘person performing platform work’ is defined by Article 2(1)(c) as ‘an individual performing platform work, irrespective of the nature of the contractual relationship or the designation of that relationship by the parties involved’. Paragraph 6 of the Preamble clarifies that this wording is ‘in particular’ concerned with the fact that ‘platform work can … blur the boundaries between an employment relationship and a self-employed activity’ and with questions of ‘misclassification of the employment status’. So, it is clear that this formula seeks to obviate to the problems arising from the misclassification of workers as (bogus) self-employed independent contractors (see also paragraph 7 of the Preamble).

But arguably, the broad concept of ‘person performing platform work’ does not exclusively seek to address issues of ‘misclassification’. Instead, it also seeks to grant certain rights to working people that are correctly classified as not being employees or workers, but instead as being ‘genuine self-employed’. Paragraph 17 of the Preamble is clear in that respect, noting that ‘The provisions on algorithmic management which are related to the processing of personal data should also apply to persons performing platform work who do not have an employment contract or employment relationship’ (emphasis added). Paragraph 29 is even more explicit, noting that ‘the determination of the correct employment status of persons performing platform work should not prevent the improvement of conditions of genuine self-employed persons performing platform work’. This is an important expansion of the scope of the PlWD, and while these provisions are sufficiently connected with the processing of personal data (certainly enough to justify this much broader personal scope), it should not be forgotten that they are also important and novel workplace rights.

This is not the only example of an EU law instrument that grants workplace rights to workers regardless of their employment status. The Framework Equality Directive 2000/78 expressly applies some of its provisions to self-employment (see Article 3) and has been interpreted by the Court of Justice as including within its scope any ‘genuine and effective occupational activity, pursued on a personal and regular basis for the same recipient, enabling the applicant to earn his livelihood, in whole or in part’ independently of ‘the classification of that activity as “employment” or “self-employment”’. ⁶ As noted by Paragraph 29 of the Preamble of the Platform Work Directive itself, the ‘Commission communication of 30 September 2022, which contains “Guidelines on the application of Union competition law to collective agreements regarding the working conditions of solo self-employed persons”’ also ‘indicates that […] collective agreements between solo self-employed persons and digital labour platforms relating to working conditions fall outside the scope of Article 101 TFEU’.

As already mentioned in the introduction, the concept of ‘person performing platform work’ is a novel concept, introduced specifically by the PlWD, and as such it has yet to be interpreted by the Court. It is clear that the concept applies and includes employees and workers with a standard employment contract or relationship. But beyond that, who should be classified as a ‘person performing platform work’? We venture to suggest that the extension beyond the more established worker concept should apply, at the very least, along two axes.

Firstly, it should apply along the employment v self-employment axis, by including in the protections conferred a number of self-employed persons that are typically excluded by the binary divide. In engaging with this question, the Court will want to cast its eye, and possibly rely, on the definition of ‘solo self-employed’ contained in paragraph 1(2)(a) of the 2022 Communication referred above, and expressly mentioned by the PlDW. ⁷ The Communication provides that ‘“solo self-employed person” means a person who does not have an employment contract or who is not in an employment relationship, and who relies primarily on his or her own personal labour for the provision of the services concerned’. The words ‘primarily on his or her own personal labour’ should be understood as not requiring ‘exclusively’ personal labour, thus allowing a modicum of substitution by a delegate and a modicum of use of capital assets, as long as, overall, the relationship remains one that is shaped primarily – that is to say predominantly or mainly - by the provision of personal labour. As mentioned above, the two authors of this article, along with – famously and eminently – Professor Mark Freedland (including jointly with us), have elaborated at length on the idea of ‘personal work’ ⁸ as a concept suitable to underpin a broader personal scope for labour rights, and which can lay a claim as one of the concepts inspiring the definition of solo self-employed. ⁹

Secondly, it should also apply along a different axis, the ‘stable relationship’ v ‘casual work’ axis, by including in the protections conferred a number of persons that perform work, but not on a sufficiently regular and continuous basis for the same recipient, thus not meeting the stability requirements on which the Court of Justice jurisprudence remains unnecessarily insistent. In Preston, the Court found that, even in the absence of a single continuous contract, it was possible to establish a ‘stable employment relationship resulting from a succession of short-term contracts concluded at regular intervals in respect of the same employment’. ¹⁰ Since Allonby, the Court has regularly asserted that ‘the essential feature of an employment relationship…is that for a certain period of time a person performs services for and under the direction of another’. ¹¹ To note, this requirement for stability and regularity does not exclusively arise in respect of subordinate employment relationships, but also in respect of self-employment. For example, in the more recent Case C-356/21 JK v TP, the CJEU found that a self-employed contractor on a succession of contracts for services was covered by Directive 2000/78, because ‘the activity pursued by the applicant constitutes a genuine and effective occupational activity, pursued on a personal and regular basis for the same recipient, enabling the applicant to earn his livelihood, in whole or in part’. ¹² We are of the view that the concept of ‘person performing platform work’ should invite the Court to dispense with any such requirement of work performed for a certain period of time, with a certain regularity, for the same recipient. It would be counterintuitive to apply this requirement to a time of work that, by its very definition, is ‘on demand’ and therefore irregular. It would also run against the data protection legal base of the instrument, whereby data subjects are protected even on a ‘one-off’ basis. The only, exceptional, provision of the Directive referring to ‘persons performing platform work on a regular basis’ is Article 17(1)(c), dealing with the information that platform employer must make available to public authorities and to worker representatives. But this exception is easily explainable by reference to the specific obligations to which it applies, i.e., informing these bodies about ‘the average duration of activity, the average weekly number of hours worked per person and the average income from activity’. Obviously, if these activities are not regular and they are not performed for the same employer, it will be impossible to report on any of the required averages.

More broadly, we are inclined to suggest that the definition of ‘person performing platform work’ could benefit from some of the conceptual underpinning provided by the idea of ‘personal work’. The concept of personal work r includes all those persons that ‘earn their living through personal work’, to quote AG Capeta's Opinion in Case C-356/21, JK v TP, ¹³ an opinion that was explicitly inspired by the idea of the ‘personal work’. In our writings we have been explicit in suggesting that it would be important to understand personal work as work performed in a ‘predominantly personal capacity’ so as to allow some degree of occasional ‘substitution’ and ensure a broad scope. ¹⁴ Broad and encompassing as it is, the concept does exclude those who are genuinely operating a business on their own account. That is to say it excludes, firstly, those persons who provide a service through the labour of others, for example, through the labour of those they employ or whose personal work they coordinate as part of a managerial activity (including a managerial activity that may require a modicum of their own managerial labour, which is however marginal and ancillary to the labour provided by their employees). Secondly, it excludes those persons providing services to a plurality of clients or customers by means of substantial tangible or intangible assets, when, once more, any provision of their labour is merely marginal or ancillary. We have already observed that ‘the app’, ‘the bike’ or ‘the mobile device’ do not reach the threshold of ‘substantial’ assets for the majority of persons performing platform work. ¹⁵ We stand by that observation. Beyond these two exclusions of what, in our view, are genuine entrepreneurial activities that should not be afforded any labour law protections, we are of the view that, in future interpretative work, the Court may want to consider that the concept of ‘person performing platform work’ should indeed cover every person, whether employed or self-employed, that relies primarily on his or her own personal labour for the provision of the services concerned.

The broad scope of application of the Platform Work Directive has already been noted and commented on positively by legal scholars such as Perulli, who has stressed that ‘the universalistic approach to protection is one of the real novelties of the […] Directive, which […] intends to protect all workers, or, better, all working persons, from the arbitrariness of algorithmic management’. ¹⁶ The breadth and range of rights that the PlWD attributes to all ‘persons performing platform work’ make this Directive a groundbreaking instrument in terms of the personal scope of application of labour and social rights. And it is clear that we are talking about what most labour lawyers would understand as basic labour rights, including – to quote Article 11(1) (Human review) - ‘any decision taken or supported by an automated decision-making system to restrict, suspend or terminate the account of the person performing platform work, … or any other decision affecting the essential aspects of the employment or other contractual relationships’. But also, to quote Article 23 (Protection from dismissal),‘Member States shall take the measures necessary to prohibit the dismissal or termination of the contract of persons performing platform work, or equivalent action, and all preparations therefor, on the grounds that they have exercised the rights provided for in this Directive’ (our emphasis).

It seems clear that the Directive, through these provisions, intended to acknowledge that all workers may suffer serious harm from algorithmic decisions, regardless of their employment status. This approach is further reinforced and justified by the legal basis of the Directive, which allows for the extension of protections beyond the scope of subordinate employment – Article 16 TFEU, concerning the protection of personal data – is particularly relevant in this regard, as it is immediately evident that the collection and processing of personal data are intimately connected to the kind of algorithm-supported decisions targeted by these provisions.

3. The narrower ‘platform worker’ definition

Having elaborated the groundbreaking impact of the ‘person performing platform work’ category, it must also be observed that a number of provisions of the Directive are addressed to the narrower concept of ‘platform workers’. For example, Article 12 of the Directive (Safety and health) provides that ‘with regard to platform workers, digital labour platforms shall … a) evaluate the risks of automated monitoring systems and automated decision-making systems to their safety and health, in particular as regards possible risks of work-related accidents, psychosocial and ergonomic risks’. Other provisions that attribute rights to ‘platform workers’ are Article 13 (Information and consultation), Article 14 (Provision of information to workers), Article 16 (Declaration of platform work), Article 25 (Promotion of collective bargaining in platform work), and Article 28 (Collective agreements and specific rules on the processing of personal data).

The definition of ‘platform worker’ is set out in Article 2(1)(d) of the Directive, and ‘means any person performing platform work who has or is deemed to have an employment contract or 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’. This is a novel definition, and in effect the amalgam of at least three different conceptual components.

The first component of the definition – i.e., the phrase ‘an employment contract or 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’ – is a verbatim reproduction of the personal scope definition contained in Article1(2) of Directive (EU) 2019/1152, the TPWCD. Georgiou has already pointed out that the TPWCD definition ‘reserves the scope-defining exercise for domestic jurisdictions’, but also that ‘An important caveat, however, is introduced: when assessing “worker” status, national judges and legislators have to take into account the case law of the ECJ’. ¹⁷ This provision has yet to be tested in the CJEU, but it is clear, as Georgiou suggests, that its drafters sought to secure a wording reflecting the expansive effect that Court rulings such as C-393/10, O’Brien have had on the scope of application of EU labour law Directives that, nominally, explicitly defer to domestic definitions. ¹⁸

The second component of the definition can be ascribed to the phrase ‘who has or is deemed to have’ (emphasis added). The phrase ‘deemed to have’ is entirely new and does not appear in any previous EU social acquis Directive. It clearly suggests that the provisions depending on this definition of ‘platform worker’ do not just apply to those who have a contract or employment relationship but also to those who do not, but that – in spite of that - should be understood as having one. Whether they should be ‘deemed to have’ a contract or employment relationship because of existing national judicial doctrines on ‘sham contracts’, or because of the introduction under the Directive itself of certain new criteria in respect of the presumption of an employment relationship, it is clear that this phrase has been inserted to expand the personal scope of the Directive when it comes to the more classic working conditions.

The third component is slightly more complicated as it is linked to the opening words of the definition: ‘any person performing platform work’. It is clear that this expression replicates the much broader framing concept discussed in section 2. But it is also clear that, in spite of this elision, the two sets of personal scope-framing concepts remain distinct and do not simply collapse into each other. The most obvious explanation for the use of these words in the context of the ‘platform worker’ definition is that, mindful of the prevalent employment status misclassification marring platform work, EU lawmakers wanted to ensure that the employer obligations towards ‘platform workers’ could not be avoided simply by labelling them as ‘self-employed’. In order to achieve that, it was thought appropriate that ‘any person performing platform work’ should, in the first instance, be considered for the protections referred to by the Directive, but that only those who have (or are deemed to have) an employment contract or relationship would be able to claim them. We elaborate further on this point in the following sections by reference to the key provisions of the Directive that deploy this particular definition, namely, Articles 4 and 5.

Overall, and to conclude this section, it is fair to say that the concept of ‘platform worker’ can be referred to as ‘narrower’, but only by comparison to the much broader, and effectively universalistic, concept of ‘person performing platform work’ discussed in section 2 above. This comparison aside, the definition of ‘platform worker’ contained in the PlWD is much broader than any other definition of worker contained in the other EU social acquis Directives, barring of course the anti-discrimination instruments briefly mentioned in the closing paragraphs of the previous section. It is broader than the – already broad – personal scope of the TPWCD, as it includes both those who have a contract or relationship or those who are ‘deemed’ to have one. And just to make sure that employers cannot exclude working people from the rights the Directive grants to ‘platform workers’ simply by mischaracterising them as genuinely self-employed contractors, the wording of the definition gives even those who may have been misclassified a chance to prove that, in reality, they have an employment relationship. Ultimately, this may well be the only real difference between the two definitions of ‘person performing platform work’ and ‘platform worker’. The former includes in its scope at least some genuinely self-employed ,whereas the latter does not.

This in turn raises a number of interesting questions in respect of the scope of the (very few) provisions that the Directive reserves exclusively to ‘platform workers’, such as, for example, Article 12 on health and safety. Is it possible or desirable to confine these rights exclusively to workers that are ultimately capable of establishing that they have an employment contract or relationship? Should they not also be granted to the broader category of ‘persons performing platform work’, regardless of their employment status? A particular concern arises specifically in respect of health and safety at work rights, especially in consideration that the European Committee for Social Rights has repeatedly pointed out that Article 3 of the Social Charter (the right to safe and healthy working conditions) also applies to the self-employed, ¹⁹ and that some EU instruments also grant, selectively, certain health and safety rights to the self-employed. ²⁰ In section 6 we will see how the Directive attempts to remedy the exclusion of persons performing platform work from, for example, the information and consultation rights typically conferred to workers representatives, by, for example, Directive 2002/14/EC.

4. Who is entitled to have their employment status correctly determined under Article 4, and to what effect?

Article 4 plays a crucial role in the architecture of the PlWD. Its purpose is to guide and facilitate the determination by Member States of the correct employment status of ‘persons performing platform work’. However, Article 4(1) also clarifies that while Member States must ‘have appropriate and effective procedures in place to verify and ensure the determination of the correct employment status of persons performing platform work’ (emphasis added), this is with a view to ascertaining the existence of 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’. The latter words would be a near verbatim reproduction of the ‘platform worker’ formula, if it were not for the fact that Article 4(1) specifies that such a determination must occur ‘including through the application of the legal presumption of an employment relationship pursuant to Article 5’, thus potentially broadening its application further. So, in this respect, the purpose of this provision is quite clear: it seeks to facilitate the reclassification of bogus self-employed contractors as workers or employees of the platform employer.

Article 4(2) refers to a number of criteria and principles of interpretation in order to facilitate the correct determination of employment status. These are the fairly established ‘primacy of facts’ principle (‘shall be guided primarily by the facts relating to the actual performance of work’ – this principle is also present in the definition of the general scope of the Directive, contained in Article 1(2)), but also the very novel criterion of the ‘use of automated monitoring systems or automated decision-making systems in the organisation of platform work’. These are broad and expansive principles. When a person’s work is organised through the use of platform-based automated monitoring systems or automated decision-making systems (as happens, crucially, for most of those performing platform work, well beyond ‘platform workers’ in the narrow sense) then their work relationship should be classified as an ‘employment relationship’. And this is ‘irrespective of how the relationship is designated in any contractual arrangement that may have been agreed between the parties involved’, another consequence of the ‘primacy of facts’ principle.

The Directive explores at length the concepts of automated monitoring and decision-making systems (defined in Article 2(1)(h)-(i)) and Article 7), but does not clarify what ‘organisation’ means. Paragraph 44 of the Preamble uses the expression ‘organisation of work assignments’, and paragraph 66 notes that ‘the elements regarding the organisation of work that make it possible to determine the correct employment status … could be in the possession of the digital labour platform and not easily accessible to persons performing platform work’. However, the concept is somewhat reminiscent of that referenced in Italian Law Decree n. 101/2019, which included ‘the modalities of the execution of the performance of work through platforms, including digital ones’ in the definition of lavoro etero-organizzato. We venture to suggest that the idea of ‘organisation of work’ goes beyond the mere organisation of work assignments, and should include other organisational tasks in respect of matters such as remuneration, pay increments, ‘surges’, rotas, breaks, working time, account monitoring, suspension, the reputational use of rating systems, and, in reality, anything that a platform-based automated system does to shape the ‘performance’ or ‘provision’ of work more generally. When the reality of platform work suggests that algorithms shape, in any way, or form decisions about any of these aspects of work, then that should be a strong indication that the work should be classified as employment.

No less importantly, Article 4 does not refer to more traditional, and narrower, criteria and tests such as ‘control’ and ‘direction’, or to strict ‘personality’ or ‘subordination’ requirements, or economic dependence criteria, such as the expectation that the remuneration received from one platform constitutes the main source of income of the worker. These are not excluded and may still be relied upon by national courts or decision-makers as ‘defined by the law, collective agreements or practice in force in the Member States’. But, we believe, the main principle introduced, i.e., ‘the use of automated monitoring systems or automated decision-making systems in the organisation of platform work’, points beyond the paradigms of subordination, hetero-direction and economic dependence, and towards a broader paradigm of (technological) ‘hetero-organisation’. If our analysis is correct, then it is worth pointing out that, whenever deployed, the principle of hetero-organisation has had a beneficial and expansive impact on the scope of labour rights. ²¹

Overall, Article 4 is an extremely important provision, and one that is central to the regulation of platform work, but is equally central to the overall architecture of the Platform Work Directive. Its most obvious effect is that of suggesting to Member States some new and broad criteria for the correct determination of the employment status of all persons performing platform work as platform workers with an employment contract or relationship. This is extremely important. Even though the vast majority of the PlWD rights apply to both employees and the self-employed, it is clear that the bulk of both national labour rights and EU labour rights still apply to employees and workers, but not to the self-employed. So, by facilitating the reclassification, under national law, of persons performing platform work as employees or workers, Article 4 performs a dual expansive function. On the one hand it speaks to Member States, and effectively expands their national definitions of ‘employee’ and ‘worker’ when these apply to ‘platform work’, ensuring that all national labour rights (crucially also those that do not derive from EU law, but are exclusively national) are applied to a broad range of ‘employment relationships’ (and essentially to what the Directive would define as ‘platform workers’). On the other hand, it also speaks, we believe, to the Court of Justice, prompting the latter – should any interpretative question about the scope of the Directive arise – to look also at the criteria contained in Article 4 in order to reach its conclusions. In this respect, it is also worth noting that Article 4 appears to entirely supersede the somehow narrower and problematic reasoning that the Court had laid down in C-692/19 Yodel ²² with regard to some forms of platform work. The emphasis in this Article on the ‘primacy of fact’ principle, with the particular reference to the use of automated monitoring systems or automated decision-making systems in the organisation of platform work, ‘irrespective of how the relationship is designated in any contractual arrangement that may have been agreed between the parties involved [emphasis added]’, in fact, seem irreconcilable with the criteria in Yodel.

Therefore, we posit, Article 4 performs (or is likely to perform) a dual gatekeeping function. It ensures that national labour standards (regardless of whether they are of EU origin or not) are applied to a broad range of platform workers as defined by national courts, that will have to take the Article 4 criteria into consideration when reaching their deliberations on employment status. It also ensures that the Directive's rights are applied to a broad range of ‘platform workers’ as defined by the Court of Justice. This second function has the potential of both defining who will be a platform worker for the purpose of, say, Article 12 of the Directive, but also – and crucially – the potential of defining who is a platform worker for the purposes of enjoying EU rights contained in other EU Directives, for example, the rights contained in the Working Time Directive 2003/88 or the TPWC Directive 2019/1152, both of which are expressly referenced in Paragraph 10 of the Preamble. These gatekeeping functions of Article 4 will be likely magnified by the correct implementation of Article 5, to which we now turn to consider.

5. Employment status and legal presumption: Scoping questions

There is hardly a provision of the PlWD that has attracted greater attention, and greater controversy, than Article 5, the provision introducing the rebuttable, ‘legal presumption’ of employment status between digital labour platforms and persons performing platform work. This is a provision that went through multiple drafting processes, and that at some point appeared capable of derailing the very adoption of the Directive, only for a last-minute political consensus to crystallise around its current formulation. As far as the back and forth and political negotiations surrounding this particular provision go, we refer to the trailblazing work of Aloisi and Rainone. ²³

As it stands, Article 5 displays at least three key characteristics that deserve further examination. Firstly, it is clear that the purpose of this presumption, as finally formulated, is not to introduce a rebuttable presumption on the basis of criteria set out in the Directive itself, but rather to instruct Member States to introduce a legal presumption ‘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’ (Article 5(1)). This may seem an otiose consideration, but it is worth mentioning, given that the original intention of the Commission ²⁴ was to introduce a presumption based on five criteria revolving around the idea of ‘controlling the performance of work’. In the original proposals, if two of these five criteria were satisfied, the presumption of employment status would apply, shifting the burden of the rebuttal on to the presumed employer, the digital labour platform. The final version of the presumption dispenses with this ‘two out of five’ principle and defers more to Member States, who are asked ‘establish an effective rebuttable legal presumption of an employment relationship that constitutes a procedural facilitation for the benefit of persons performing platform work’ (Article 5(2)).

Secondly, whereas the presumption is introduced as ‘a procedural facilitation for the benefit of persons performing platform work’ (Article 5(2)), such a presumption ultimately – and in our view, rather unfortunately – applies ‘where facts indicating direction and control … are found’ (Article 5(1)). However, it is also essential to note that the presumption is clearly designed to operate to the benefit of all persons performing platform work (see also Article 5(4)). Fortunately, the precise definition of the concepts of direction and control is not solely the prerogative of national courts, as they need to be understood ‘with consideration to the case-law of the Court of Justice’. There seems to be a noticeable contrast between the narrow subordination approach espoused by Article 5, and the much broader ‘technological hetero-organisation’ approach that shapes Article 4, discussed above, for the purposes of verifying and ensuring ‘the determination of the correct employment status of persons performing platform work’ (Article 4(1)).

Clarifying the relationship between Articles 4 and 5 will thus be an important, if complex, task that can only be left to the Court of Justice. In that respect, it is worth noting that Article 4(1) specifies that the ascertainment of the existence of an employment relationship shall be performed ‘including through the application of the legal presumption of an employment relationship pursuant to Article 5’. Obviously, such a reference to Article 5 cannot be construed as a Trojan horse to introduce subordination through the backdoor so as to limit the impact of the broader hetero-organisation principle underpinning Article 4. The opposite is in fact far more likely. That is to say that in order to comply with the Directive's obligations that ‘the legal presumption does not have the effect of increasing the burden of requirements … to determine [the] correct employment status’ (Article 5(2)), once Member States implement Article 4, any legal presumption may also have to defer to the primacy of fact and technological hetero-organisation principles. Unless they do so, some crucial provisions in the Directive would potentially be dependent on 27 different presumptions solely operated on the basis of national criteria, something which would inevitably have ‘the effect of increasing the burden of requirements on persons performing platform work or their representatives in proceedings to determine their correct employment status’. In light of this, it seems to follow that the rebuttal of the legal presumption under Article 5(1) at the national level should not simply depend on the failure to meet criteria such as ‘control and direction’, strict ‘personality’ or ‘subordination’, as designed by national laws, since this would risk subjecting the implementation and enforcement of the Directive to a variable geometry of personal scopes shaped by traditional national legal notions that fail to account for the specificities of platform work clearly recognised in Article 4.

Thirdly, and finally, as cursorily referenced above, the rebuttable presumption applies ‘in all relevant administrative or judicial proceedings where the determination of the correct employment status of person performing platform work is at issue’ (Article 5(3)), and the power to initiative such proceedings is vested both in persons performing platform work (Article 5(4)) and in any ‘national competent authority’ (Article 5(5)). What is clear, also from the wording of Paragraph 31 of the Preamble, is that this presumption was not designed to operate ipso jure (i.e., automatically and by law) with all platform employers having to automatically reclassify the contracts with their platform workers as contracts of subordinate employment, but will instead require somebody to initiate judicial or administrative proceedings to ascertain that status. The Directive clarifies that the presumption does not apply retroactively, but only from 2 December 2026 (Article 5(6)), though crucially ‘including for contractual relationships entered into before and still ongoing on that date’ (paragraph 33 of the Preamble).

Overall, Article 5 of the Platform Workers Directive is undoubtedly and innovative provision but also one that falls short of the classification challenges posed by the rise of the ‘gig-economy’, a growing set of economic activities that have proved themselves uniquely capable of obfuscating the concept of work, at least as traditionally understood from the viewpoint of subordination and the standard employment relationship. It is likely that some of the inadequacies of this provision can be mitigated through the interplay with the more innovative and comprehensive principles contained in Article 4, but there is no doubt that this will be an aspect of the Directive that, sooner rather than later, the Court of Justice will be asked to reflect on.

6. Duplicating rights and entitlements to extend the protective scope of the Directive

In the introduction we pointed out that some provisions of the PlWD are exclusively addressed to ‘platform workers’ as opposed to the broader category of ‘persons performing platform work’. Section 3 above already discussed Article 12, the Directive's provision on health and safety, as an example of an Article exclusively designed to apply to ‘platform workers’, noting the rather infelicitous choice by reference to the broader personal scope of application of Article 3 of the European Social Charter that the Committee on Social Rights understands as also applying to the self-employed.

In this section we identify two examples of provisions that are similarly confined to ‘platform workers’, but where the Directive's drafters have decided to mitigate the restrictions arising from this narrower scope by introducing additional and separate provisions that, in effect, confer the same or equivalent rights to the broader category of ‘persons performing platform work’.

A prime example of this approach is Article 13, which grants a number of information and consultation rights stemming from Directive 2002/14 to ‘platform workers’ representatives’, as per Article 13(3). The ‘information’ portion of these rights in Article 13 is not entirely inconsistent (and in fact is very similar) to those ‘transparency’ rights that Article 9 of the PlWD - for all purposes fairly detailed ‘information’ rights - also attributes to the broader category of ‘persons performing platform work’. Not all ‘transparency/information’ rights contained in Article 9 are systematically extended to ‘persons performing platform work’, with Article 9(4) providing that ‘Digital labour platforms shall provide workers’ representatives, in a comprehensive and detailed form, with the information referred to in paragraph 1 with regard to all relevant systems and their features’ (emphasis added). But even then, other provisions such as that in Article 15 (Specific arrangements for representatives of persons performing platform work other than platform workers’ representatives) intervene to extend some of these rights (and other rights) to ‘Representatives of persons performing platform work’, albeit limitedly to ‘the protection of their personal data’. Undoubtedly, these provisions do not reproduce a mirror image of the established information and consultation rights that the acquis confers on workers and worker representations, for the purpose of extending them to all ‘persons performing platform work’ and their representatives. And, arguably, none of these extension mechanisms and provisions automatically materialise into the deeper form of labour-capital interaction that Article 4(4)(e) of Directive 2002/14 ascribes to the notions of consultation ‘with a view to reaching an agreement’. However, it is evident that the EU legislator has sought to mitigate some of the strictures arising from the traditional scope of application of the EU social acquis on information and consultation, and has sought to grant at least some information rights to the broader category of persons performing platform work.

An additional example of this approach, reinforcing its not so exceptional nature, is Article 25 – Promotion of collective bargaining in platform work, prompting Member States to ‘take adequate measures to promote the role of the social partners and encourage the exercise of the right to collective bargaining in platform work, including measures with regard to the determination of the correct employment status of platform workers and to facilitate the exercise of their rights related to algorithmic management set out in Chapter III’. But for the avoidance of doubt, Paragraph 29 of the Directive's Preamble refers expressly to the ‘collective agreements between solo self-employed persons and digital labour platforms relating to working conditions’ noting that they too can ‘serve as useful guidance’ (as long as they do ‘not undermine the objectives pursued by this Directive, in particular the correct classification of persons performing platform work with regard to their employment status’). There is, perhaps in a rather more oblique way and through the Preamble, another attempt here to ensure that rights that are typically understood as employee or workers’ rights are also enjoyed, at least in some form or shape, by self-employed persons. This is no small accomplishment, considering the limitations of some of the Treaty legal bases on social dialogues and working conditions, but also considering a certain cultural resistance, in certain policy quarters, towards extending even fundamental labour protections beyond employment.

This particular expansive approach is, we venture to suggest, entirely consistent with EU law, and very much in line with the overall approach of the Directive to the question of employment status and its personal scope provisions. While the Directive, for the reasons explained in sections 1 and 3, does reserve some rights to the more traditional concept of worker employed under contracts or employment relationships, other rights - in fact the majority of the rights contained in the Directive, including some rights such those in Article 4 with a fundamental ‘gatekeeping’ function - apply more broadly, to all ‘persons performing platform work’. And as noted in paragraph 16 of the Directive's preamble, this dual personal scope is entirely consistent with its purpose ,which is ‘to improve the working conditions of platform workers and to protect the personal data of persons performing platform work. Both objectives are pursued simultaneously and, while mutually reinforcing and inseparably linked, one is not secondary to the other’.

7. Metalegomena: The personal scope of Directive 2024/2831 and the draft EU Directive on algorithmic management and the ILO standard-setting on platform work

This article has so far observed that one of the most distinctive and innovative approaches of the Directive is to extend a wide range of rights to ‘persons performing platform work’ and to mirror the provisions that apply only to platform workers, through complementary provisions that extend, if not the letter, the spirit of the Directive to all individuals who perform platform work, without distinction based on employment status. We believe these are crucial steps, which can pave the way for additional and future legal and policy initiatives. Among them, it is certainly worth citing the new initiative of the European Parliament, which is seemingly set to invite the European Commission to propose a draft Directive on ‘algorithmic management in the workplace’. ²⁵ In this context, the initial report of the European Parliament appears to extend some of the provisions of this potential Directive to ‘solo self-employed persons’, defined as individuals ‘who [have] no employment contract or employment relationship, and who [rely] primarily on [their] own personal labour for the provision of the services concerned’. Appealing as this solution may appear, we feel we ought to express some caution and the concern that it risks collapsing the very broad notion of ‘person performing [platform] work’ into the narrower, but also different, idea of ‘solo self-employed’. The European Parliament is, of course, to be applauded for recognising that the scope of labour protections in the 21st century can no longer depend on a rigid binary divide between employment and self-employment. ²⁶ However, we are of the view that it would be preferable to replicate the distinction adopted by the Platform Work Directive and use formulations such as ‘workers’ and ‘persons performing work’, rather than referring exclusively to ‘solo self-employed persons’. We prefer this approach because, unlike distinguishing between ‘workers’ and ‘solo self-employed persons’, it is more universalistic and, crucially, less likely to foster the possible emergence of a problematic third category between employment and self-employment within the EU social acquis, because the category of ‘persons performing work’ would also include workers, who would thus be part of the same set rather than belonging to a separate category. ²⁷

Another important process likely to be influenced by the Platform Work Directive and its scope is the two-year negotiation at the International Labour Conference for the adoption of an ILO Convention and Recommendation on Decent Work in the Platform Economy. ²⁸ We cannot help but notice that the European Union and its Member States, in the first round of negotiations in June 2025, seemed to have adopted a very favourable approach in respect of extending protection against algorithmic management to all persons working for digital labour platforms, regardless of their employment status. But at the same time, it adopted a very rigid approach when it came to extending basic labour rights, including the fundamental principles and rights at work of the ILO, to all working persons, including those not in an employment contract or relationship. ²⁹ This seems particularly unfortunate because, being drafted to apply to the vast majority of countries in the world, the definition and scope of a Convention and Recommendation cannot be over-restrictive and must take into account the fact that in many countries around the world, the vast majority of people at work are informal workers or are classified, in one way or another, as self-employed. For this reason, the Fundamental Conventions of the ILO almost invariably apply to all workers without distinction based on employment status, something that can also be said also of most technical Conventions of the ILO. ³⁰ Admittedly, one potential exception is the Occupational Safety and Health Convention, 1981 (No. 155), now a Fundamental Convention. However, as regards the negotiating position of the EU and its Member States, we have observed in this article that most European countries are bound to protect the occupational health and safety of self-employed workers under the European Social Charter, and that the EU itself has extended such protection to self-employed persons through a distinctive piece of legislation concerning road transport – a sector that presents striking analogies with several prevalent forms of platform work. ³¹ Essentially, also, there is no restriction based on EU law to Member States adopting labour protections – including in respect of occupational health and safety, and beyond – for all workers, without distinction of employment status, as is shown by the longstanding practices of several EU countries, including France, Italy, Germany, and Spain. ³²

As the ILO becomes increasingly involved in the effort to regulate platform work at a supranational and international level, we would like to elaborate briefly on the state of that debate, by reference to the proposed resolution and conclusions on this agenda item, reached at the 2025 International Labour Conference. ³³ The conclusions adopted by the ILO constituents seem, on the one hand, to include a broad definition of ‘digital platform worker’, defined as ‘a person employed or engaged to work: (i) for the provision of service organized and/or facilitated by a digital labour platform; (ii) for remuneration or payment; (iii) regardless of their classification of status in employment’ (emphasis added). ³⁴ On the other hand, that very definition refers to ‘service organized and/or facilitated by a digital labour platform’. We believe this is in striking contrast with the definition of digital labour platform adopted by the Platform Work Directive and by the EU Guidelines on the collective bargaining of solo self-employed, both of which indicate clearly that the organisation of work is an ‘essential and necessary component’ of the concept of a digital labour platform.

We have elaborated on the concept of ‘organisation’ in the PlWD by reference to Article 4. ‘Organising’ and ‘facilitating’ are not synonymous terms. Here, we would like to caution against the fact that the significance of this definitional divergence should not be underestimated. During the 2025 discussion, the Employers’ Group lobbied extensively for an ILO-level recognition that platforms merely facilitate services – i.e., offer matching supply and demand of services – without organising the work itself. This is the same narrative that digital platforms such as Uber relied on in their early labour litigation, and which was overwhelmingly rejected by courts across jurisdictions, including the judgment of the London Employment Tribunal cited in the opening paragraphs of this article, as well as in a landmark judgment of the Court of Justice of the EU, among many others. ³⁵ The words ‘organised and/or facilitate’ are in many ways the product of those efforts, but an inadequate compromise position. A definition at the ILO level that blurs the two concepts risks downplaying the organisational function of platforms, and risks reviving and legitimising the ‘service facilitator’ narrative at the international level, allowing platforms to argue in domestic and regional forums – including EU forums – that even the ILO does not convincedly consider digital labour platforms to be organisers of work.

It is possible to speculate that the Employers’ Group at the ILO may have proposed the broadest possible definition of both digital labour platforms and platform workers, ostensibly in the name of consistency, but almost as a Trojan horse, and with the ultimate objective of diluting the material scope of the instrument. As things stand, the current proposed definitions risk encompassing even individuals merely offering their services via, say, social media platforms. It is hard to imagine that the ILO's tripartite constituency would agree to extend minimum wages, working time limits and fundamental labour rights to all such workers, and it is even more unlikely that it will see any employers’ responsibilities accruing upon the social medial platforms through which they ‘advertise’ their services. The likely outcome is that most meaningful protections will end up being pushed into the Recommendation rather than the Convention – mirroring the fate of ILO Convention No. 181, whose overbroad scope regarding private employment agencies led to a Convention with little bite, and confined substantive protections for temporary agency workers to Recommendation No. 188.

This over-extensive definition seems, in fact, to be poised to allow for the argument that an ILO Convention and Recommendation based on mere facilitation of work cannot provide the same protective standard as EU measures, precisely because the ILO instruments would embrace a much broader and looser scope. This argument, if accepted by the ILO Constituents, risks seriously undermining the coherence and normative strength of both regimes, potentially making it nigh impossible for EU Member States to ratify the ILO Convention. Moreover, it may expose platforms operating in the EU to the unfair competition of other platforms, that would benefit from the unduly more lax provisions of the ILO standards.

One possible way forward would be for the ILO to adopt a definition stating that a digital labour platform falls within the scope of the Convention only if it both organises and facilitates work – and the same approach should apply to the definition of platform workers. Of course, we do not believe that ILO standards must be shaped according to EU legislation, but such a sharp contrast in core definitions arguably risks undermining coherence in the interpretation and application of both the Directive and any future ILO instrument on platform work.

8. Conclusions

In this article, we have sought to demonstrate that beyond the formal distinction between ‘platform workers’ and ‘persons performing platform work’ as defined in Directive 2024/2831, the relationship between these two categories – and the provisions that apply exclusively to one or other or both – is far more interrelated and complex than it may appear at first glance. We have argued that the legal presumption introduced by the Directive reflects important elements of innovation and endorses a broad and generous approach to the definition of employment status for platform workers. While this generous stance, particularly evident in Article 4, may appear at odds with the seemingly narrower formulation of Article 5, we have suggested that the Court of Justice of the European Union – whose interpretative guidance will likely be sought shortly after national implementation – will be well placed to reconcile these apparent tensions. As argued in section 5 above, it will be essential for the Court to ensure that restrictive national applications of the presumption do not hollow out Article 4 and frustrate the Directive's protective aims by rendering the operative definition of ‘platform workers’ an empty shell.

The Platform Work Directive does not merely respond to the regulatory challenges posed by algorithmic management and the fragmentation of employment status – it also articulates a sophisticated and expansive approach to the question of the personal scope of labour regulation that affirms the EU's capacity to lead in developing more universal and forward-looking labour standards. By grounding rights in the reality of personal work rather than in formal status, the Directive offers a model for supranational regulation that addresses the realities of contemporary labour markets, where vulnerability and the need for protection extend well beyond the contract of employment and employment relationships. At a time when much of the regulatory agenda appears to be drifting toward retrenchment and deregulation, the Directive reasserts a commitment to social ambition – despite the political compromises that diluted parts of its content and the reality that its provisions could have gone further. Whether this progressive stance marks a renewed trajectory for Social Europe or will prove to be a singular exception amidst broader deregulatory reflux remains to be seen. But either way, the Directive calls on current and future policymakers to take seriously the promise – rather than merely the rhetoric – of inclusive, future-proof labour rights.

What is certain, in any case, is that the scope of protection for platform workers will remain central to policy, legal, and scholarly debates for years to come. We believe it is essential that the expansive and innovative reach of the Platform Work Directive discussed in this article is not diluted – neither at national level, nor in the development of international labour standards.