How best to react? On the one hand the collaborative economy presents ‘considerable potential for competitiveness and growth’ not forgetting jobs. On the other hand, this economy raises several critical questions surrounding responsibility over protecting users, how to apply fiscal rules, and of course the status of workers. The European Commission doesn’t want to set rules that are so restrictive that they squeeze the collaborative economy outside of the EU. So at this stage additional regulations are out of the question but the European Executive intends, via its ‘European agenda for the collaborative economy’ that was published on 02 June, to clarify the manner in which to apply current European rules, notably as regards qualifying the notion of the ‘worker’.
According to estimates, gross revenue in the EU from collaborative platforms and providers was estimated to be €28 billion in 2015 and this could rise to an estimated €572 billion. In its 02 June press release called ‘A European agenda for the collaborative economy’the EC is trying to encourage the development of this economy and in order to do so is looking to “address concerns over the uncertainty about rights and obligations of those taking part in the collaborative economy.” For Brussels, the answer doesn’t lie in adopting new rules but rather in providing legal guidance and policy orientation to the public authorities on how governments should apply existing EU law on the five key subjects including access to the market, responsibility, user protection, applicability of fiscal rules, and the status of workers in order to ‘ensure the balanced and sustainable development of the collaborative economy.’
As regards employment status, the document recalls that EC law, even though fragmented and based on minimal rules, is based on the notion of the employer being defined as a person engaged in a working relationship. The working relationship, which implies the provision of services by one party in favor of the other, under the other party’s direction, and provided against remuneration is qualified according to three criteria: the subordinate relationship, the nature of the work, the remuneration provided. In an effort to clarify, the European Commission underlines “that for the criterion of subordination to be met, the service provider must act under the direction of the collaborative platform, the latter determining the choice of the activity, remuneration and working conditions.” Additionally the service provider, given the contractual relationship the provider of the underlying service is “not free to choose which services it will provide and how”. According to the document there is no need for the platform to continuously manage or monitor in order for the relationship to qualify as employment. The nature of the activity is not meant to be purely ‘marginal and/or on an accessory basis’. Nonetheless it is not because the length of employment is short, is on a discontinuous basis, or even has low levels of productivity that it should be excluded from qualifying as an employment relationship.
On the basis of this assessment the European Commission invites the governments to ‘assess the adequacy of their national employment rules considering the different needs of workers and self-employed people in the digital world as well as the innovative nature of collaborative business models,” and to “provide guidance on the applicability of their national employment rules in light of labor patterns in the collaborative economy.”
In addition the European Commission advises the Member States against accumulating overly restrictive rules that may hinder the potential of the collaborative economy (for example, licensing Uber Pop in France in Belgium) to apply the fiscal rules (if necessary through simplification and clarification).