Judicial Decisions of European Courts
Judicial Decisions of European Courts
Workers deserve economic security between jobs. Yet exclusionary and under-resourced unemployment insurance systems leave jobseekers struggling to get by.
MODULE 04
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At the end of 2021, the European Commission introduced a comprehensive proposal for a Directive to regulate platform work in the 27 Member States of the region. The initiative was supported by research from various fields. In the field of law, Christina Hiessl, professor of labor law at the Catholic University of Leuven (Belgium), was responsible for researching the decisions of the region's courts. At the time, Hiessl's research analyzed more than 100 (one hundred) court decisions and 15 (fifteen) administrative decisions from European countries and concluded that there was a tendency for courts to reject the classification that various platforms made of their workers as self-employed, recognizing an employment relationship or a similar category.
The European Commission's proposed directive was concerned with the high number of lawsuits involving digital platforms and drew on Hiessl's research to highlight the need to prevent a deterioration in labor legislation and working conditions. Recently, after a long negotiation process, the European Union directive was approved, becoming the most comprehensive regulation of platform work.
Updated in February 2024, Christina Hiessl's research published in Platform Work: Regulation or Deregulation? analyzes more than 800 judicial and administrative decisions in 18 (eighteen) European countries on the issue of employment relationships in various platform-based jobs and the so-called gig economy and continues to point to a trend toward reclassifying workers as platform employees or a similar category.
What Hiessl indicates is that in 267 cases, workers were considered employees of digital platform companies, while in 109 cases, they were also classified as employees, but of subcontracted companies. In a smaller number of cases, 88, they were classified as self-employed, in 38 cases as workers in an intermediate category between employee and self-employed, in 11 cases as temporary agency workers, and in two cases as employees of the clients who used the platforms.
In Hiessl's database, considering only cases strictly related to platforms (therefore excluding cases related to the gig economy), there are eight countries with final court decisions:
Spain
In the courts of last resort, Spain has the highest number of decisions, especially since the Supreme Court's strong stance on the food delivery sector in September 2020. There are seven decisions recognizing the employment relationship of workers in the food delivery sector through platforms/apps. In private transportation managed by apps, two decisions recognized drivers as employees of a subcontracted company. In parcel delivery, two decisions indicated workers as employees of subcontractors, one as an employee of the platform, one as an employee of a temporary employment agency, and one as a self-employed worker (see pp. 106-118 - Christina Hiessl et al., Platform work: regulation or deregulation? The example of Europe (Boitempo, São Paulo, 2024).
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France
In the courts of last resort, Spain has the highest number of decisions, especially since the Supreme Court's strong stance on the food delivery sector in September 2020. There are seven decisions recognizing the employment relationship of workers in the food delivery sector through platforms/apps. In private transportation managed by apps, two decisions recognized drivers as employees of a subcontracted company. In parcel delivery, two decisions indicated workers as employees of subcontractors, one as an employee of the platform, one as an employee of a temporary employment agency, and one as a self-employed worker (see pp. 106-118 - Christina Hiessl et al., Platform work: regulation or deregulation? The example of Europe (Boitempo, São Paulo, 2024).
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Switzerland
In May 2022, the Federal Court recognized the employment relationship in a case concerning the food delivery sector (2C_575/2020) and in another case concerning the private platform-based transport sector (2C_34/2021).
Netherlands
In May 2022, the Federal Court recognized the employment relationship in a case concerning the food delivery sector (2C_575/2020) and in another case concerning the private platform-based transport sector (2C_34/2021).
Germany
In May 2022, the Federal Court recognized the employment relationship in a case concerning the food delivery sector (2C_575/2020) and in another case concerning the private platform-based transport sector (2C_34/2021).
Italy
In May 2022, the Federal Court recognized the employment relationship in a case concerning the food delivery sector (2C_575/2020) and in another case concerning the private platform-based transport sector (2C_34/2021).
United Kingdom
In May 2022, the Federal Court recognized the employment relationship in a case concerning the food delivery sector (2C_575/2020) and in another case concerning the private platform-based transport sector (2C_34/2021).
Hungary
In May 2022, the Federal Court recognized the employment relationship in a case concerning the food delivery sector (2C_575/2020) and in another case concerning the private platform-based transport sector (2C_34/2021).
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Thus, in the 30 cases that reached the final instances, 19 recognized the employment relationship with the platforms; in five (5) cases, the workers were considered employees of third parties (subcontracted or employed by a temporary employment agency); in two cases, intermediate categories between self-employed and employees (worker and lavoro eteroorganizzato) were indicated; and in four cases, platform workers were considered self-employed.
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