First compromises on platform work + Discussion on Data Act + Supply Chain Act

Dear reader,

Around 28 million Europeans worked for digital platform companies such as Google and Uber in 2020. 5.5 million of them are misclassified as self-employed, according to Commission estimates. Negotiations are currently underway on the Platform Work Directive, which aims to improve people’s working conditions. The deliberations of Parliament and Council are taking an unexpectedly long time. However, the first compromises are now emerging in Parliament, as Markus Grabitz reports.

There is also still a lot of need for discussion on the Data Act – as shown by the more than 1100 amendments in the Committee on Industry, Research and Energy alone. Today, the Data Act is on the agenda of the Committee on the Internal Market and Consumer Protection. The industry has made clear demands – as Corinna Visser summarizes.

In the News, we also report on the key points of the Council’s position on the Supply Chain Act and the Commission’s proposal on the Packaging Regulation.

Your
Sarah Schaefer

Platform work: Parliament forges first compromises

By

Markus Grabitz

The first compromises are emerging in the European Parliament in the negotiations on the Platform Work Directive. Most controversial in European Commissioner for Jobs and Social Rights Nicolas Schmit’s draft are the criteria for when a platform is an employer and the mechanism for gaining an employment relationship with entitlement to minimum wage, social security and the right to paid leave.

In the European Parliament, according to information from Europe.Table in the report by Elisabetta Gualmini (S&D), it will come down to a clarification in Article 4 on the “presumption” that triggers an employment relationship. By way of background, the Commission had proposed a reversal of the burden of proof. According to this, in the future, the platform worker would no longer have to prove that they are employed by a platform, but the platform would have to prove that this is not the case.

In 2020, around 28 million Europeans were working for digital platform companies. The Commission estimates that there will be 43 million platform workers in the EU by 2025. The vast majority of platform workers are self-employed. 5.5 million of them are misclassified as self-employed, the Commission estimates. The Commission wants to strengthen the rights of platform workers. The European Parliament has already drafted an own-initiative report on this (INI Brunet).

Platforms are allowed to comment

According to the envisaged compromise in Parliament, there will be two options for this: Either the platform worker challenges their status, or a national authority, in Germany, for example, the Finanzkontrolle Schwarzarbeit (Financial Control of Clandestine Employment), complains to the platform about irregularities in the classification of the people who work for the platform. But once this mechanism is triggered, the platform should be given the opportunity to prove otherwise. This would have a suspensive effect. No platform worker would therefore be classified in an employment relationship subject to social security contributions before the platform could take a stand on the matter.

On the one hand, this helps employees in precarious employment. On the other hand, self-employed people who want to remain independent would benefit. Self-employed people would be free to decide when they work, whether they work and whether they want to accept an order at all. The platform could then also not prohibit them from building up their own customer base.

EMPL Committee vote not until Dec. 12

On Wednesday, the experts want to continue negotiations in the EMPL Committee, therefore, contrary to what was initially planned, the Gualmini report will now only be voted on in committee on Dec. 12. Dennis Radtke (CDU), shadow rapporteur and social policy spokesman for the EPP, emphasizes the importance of the proposal: “The directive offers the chance to help those who have so far not had access to elementary things like minimum wages and social insurance.” In addition, he says, it’s about creating fair conditions for competition: “Those who play by the rules shouldn’t be the ones left out in the cold.” For Uber, for example, there must be more rules of the game than just the road traffic regulations, he said.

The Council has not yet clarified its position. Last week, the EU ambassadors were unable to reach a general alignment. The German government also does not yet have an agreed position. According to reports, Minister of Labour and Social Affairs Hubertus Heil (SPD) and the Green-led ministries are in favor of the directive, while the FDP is opposing it.

Initially, it was said that France rejected the proposal. Now it is heard that a blockade is not to be expected in the Council after all. Luxembourg, Belgium and the Netherlands – after all, member states with liberal participation – as well as Spain are in favor of the proposal. The Czech Republic and other Eastern European states are skeptical. In Brussels, it is said that an agreement in the Council will take time. Whether it will succeed under the Swedish Council presidency (January to June) is not guaranteed.

BDA and Bitkom are skeptical

The Confederation of German Employers’ Associations (BDA) criticizes the Commission’s proposal, saying it pursues the right goal but goes well beyond it. “It cannot be that entrepreneurs who are solo self-employed are forced into employment relationships against their own interests, which are difficult to refute in court.” This would also have far-reaching consequences for businesses.

The BDA also rejects proposals that would extend the definition of digital work platforms to the entire economy: “Companies that organize their work processes digitally should not be considered platforms. That is absurd and contradicts any understanding of a modern, digitizing world of work.”

The digital association Bitkom cautions that the answer to the question of when an employment relationship exists between a platform and someone working there needs to be more closely adapted to the market realities of the platform economy: Many want to retain their flexibility and not become dependent employees: “The directive must ensure that self-employed platform workers who want to be self-employed are not automatically classified as employees,” says Adél Holdampf-Wendel.

Data Act: main discussion points

By

Corinna Visser

More than 1100 amendments in the Committee on Industry, Research and Energy (ITRE) alone show that there is still a lot to discuss in the Data Act. Today, Tuesday, the Data Act (DA) is on the agenda in the Committee on the Internal Market and Consumer Protection (IMCO). MEPs will debate the opinion of Adam Bielan (ECR).

ITRE rapporteur Pilar del Castillo Vera (EPP) presented her draft in mid-September. Until Nov. 9, the political groups could submit amendments (parts 1, 2, 3, 4). The vote in the ITRE Committee is expected in February/March 2023.

Commission has focused too much on the consumer market

The consumer Internet is firmly in the hands of the big gatekeepers from the USA. European industry, on the other hand, sees great opportunities in the industrial Internet: “In Europe, we have all the assets we need to win this market for ourselves,” companies say. However, the Commission’s proposal is too inspired by the consumer market. The consumer market has a completely different structure and follows different mechanisms. The amendments tabled by shadow rapporteur Damian Boeselager (Greens/EFA) also go in this direction.

The companies, therefore, still see a great need for action here. In particular, they would like to see the possibility of regulating more things contractually.

In addition, companies fear for their trade secrets if they have to share data. They would like to be able to impose at least certain contractual requirements on how the secrets are handled – without which there will be no data sharing. That could create more trust in sharing data, they claim. Angelika Niebler (CSU), among others, also argues this way. ZVEI warns that if trade secrets are not protected in a technically and legally secure manner, investment incentives would be lost.

Too much overlap with other regulations

Another demand from the industry is that the Data Act be more clearly distinguished from other legal acts – also to create legal certainty. The companies see overlaps, for example, with the Digital Markets Act (DMA), which already regulates market-dominant companies.

Also, data sharing obligations in the DA are unlikely to conflict with the provisions of the Data Governance Act or the GDPR. In principle, the Data Act is not about personal data, but the distinction is not always clear. Data produced by a car is different from data produced by a wind turbine. Companies would like more clarity here. Sergey Lagodinsky’s amendments for the LIBE Committee also go in this direction.

Cloud change

The Data Act is also intended to regulate the switching of a cloud provider in order to avoid lock-in effects. There are different views on how long such a change should take. The industry argues that it takes much longer for companies to switch providers than for consumers because the IT systems are more complex and the data volumes involved are larger. Companies should be able to agree on the periods and durations customary in the B2B market.

The companies are also critical of the functional equivalence proposal – among other things, customers often want to switch precisely because another provider offers different functions. What the industry needs, they say, are tools, interfaces and standards that can be used to make the switch work.

Also in dispute is the level of switching fees, which the Commission wanted to eliminate altogether after a period of time. Any excessive cloud switching fees charged by dominant companies should be addressed by the rules of the DMA, argues a company representative.

Council delivers progress report – no new compromise

The dossier is still being negotiated in the Council’s preparatory bodies. The Czech presidency has already prepared a second compromise paper and is expected to present a progress report to the ministers at the upcoming Transport, Telecommunications and Energy Council on Dec. 6. Consequently, it will no longer bring the dossier to a common orientation and will hand it over to the Swedish presidency.

Germany has not yet finalized its position

The German government has issued a preliminary statement, but it does not yet address all the issues – for example, cloud switching is missing. The German government expressly reserves the right to make additions. Initially, it is prioritizing five points:

Differentiation from and coherence with the General Data Protection Regulation (GDPR) and other data-relevant European legal norms
Differentiate data access and use regulations more strongly between B2C and B2B applications
Fairness control for contractual terms and conditions to be interpreted more in accordance with legal standards of review (analogous to Directive 93/13/EEC)
Create an appropriate balance between the interests of the public sector, business and citizens in data collection by the public sector
Consideration of special interests of research in the substantial public interest

Western Balkans summit: EU calls for clear commitment

The six states in the Western Balkans are to make a clear commitment to the European Union in the face of geopolitical tensions. “Cohesion with the EU is a clear sign of the partners’ strategic alignment, more than ever as Russia escalates its war in Ukraine,” reads a draft of the final declaration of the EU-Western Balkans summit on Dec. 6, published by Contexte. It, therefore, reiterated the expectation that countries would join the EU’s Common Foreign and Security Policy and also adopt sanctions against Russia.

The message is directed primarily at Serbia, which is trying to maintain its close ties with Moscow despite the Russian attack on Ukraine. But the EU is also demanding more commitment from the other aspirants for membership. The EU remains the region’s most important investor, trading partner and main financial backer, the statement said. “The extraordinary scale and scope of this support needs to be made more visible by partners in their public debate and communication so that citizens can see the concrete benefits of partnership with the EU.”

The summit is to take place in a week’s time in the Albanian capital Tirana. At the beginning of November, Chancellor Olaf Scholz had already invited the heads of state and government of Serbia, North Macedonia, Albania, Bosnia-Herzegovina, Kosovo and Montenegro as well as several EU governments to Berlin. There they agreed, among other things, on closer cooperation in energy policy and new financial aid. tho

Supply Chain Act: Council to adopt position

Member states are expected to go beyond the German Supply Chain Act when it comes to due diligence requirements for companies. At the Competitiveness Council on Thursday, the economy ministers in the EU Council want to adopt their position for the final negotiations with the European Parliament.

A compromise is on the table, which found a majority among the Permanent Representatives on Friday. One of the points still in dispute, however, is the extent to which the financial sector should be involved. France is trying to keep the sector completely on the outside, according to Brussels, and is trying to organize a blocking minority for it.

The key points of the Council position:

The Council also advocates the introduction of civil liability for companies in the event of violations of human rights due diligence obligations. Private international law should be modified in such a way that the de facto granting of justice is substantially improved, according to sources in the German government. In particular, it would then no longer be necessary to sue in courts in EU member states according to the law of the place where the damage occurred. In the past, this had made legal protection virtually impossible and led to the dismissal of victims’ lawsuits against the German textile discounter Kik in a high-profile case.
Climate and sustainability plans are to become mandatory for large companies.
In addition, the directive is to address the entire value chain. The so-called downstream of products will also be included, albeit only slightly. Company-related risks are to be addressed with regard to disposal and recycling.

The German government was unable to prevail in its position of creating a safe harbor for companies. With this, Berlin wanted to create incentives for companies to go beyond regulation in implementing sustainable supply chains. In return, they should not have to accept liability in the event of incidents due to slight negligence. Representatives from German business support this approach, while civil society believes it is a mistake.

Protecting human rights in the supply chain – that is a stated goal of the European Works Council and the World Works Council that has now been formed at Daimler Truck, the world’s largest commercial vehicle manufacturer. “The newly established body forms a strong platform to protect workers’ rights down to small suppliers and human rights in the supply chain as a whole,” said Michael Brecht, head of Daimler Truck’s General Works Council. cd/mgr

Packaging Regulation: Commission plans stricter requirements

Next Wednesday, the Commission will present its proposal for the Packaging Regulation. The legislative text is intended to set standards and quotas to make packaging more sustainable and reduce packaging waste. Europe.Table has a draft of the text from Nov. 24.

It states that from 2030 at the latest, producers must design packaging materials so that they can be recycled (design-for-recycling criteria). From 2035, they must also demonstrate that the packaging can be recycled on a large scale.

Among other things, the text of the law will specify what percentage of the packaging material may consist of recycled plastic. From 2030, for example, the following minimum values are to apply:

30 percent for contact-sensitive packaging consisting mainly of PET;
10 percent for contact-sensitive packaging made of plastic other than PET. The exception is single-use bottles. For these, a 30 percent quota applies;
35 percent for all other packaging materials made of plastic.

Until 2035, a few exceptions apply, for example, for medical devices.

Plastic requirements difficult to meet, says Europen

It is already clear that these requirements will be difficult to achieve. In a statement issued on Nov. 19, the European packaging association Europen described the Commission’s plastic proposals as unrealistic. At that time, a first draft of the law had been leaked. In fact, recycled plastic is currently still a very rare commodity: producers either have problems procuring the necessary quantities or they cannot afford the prices.

Europen also describes other elements of the Commission’s proposal as “inadequate”: The Commission risks endangering the existence of packaging producers.

For their part, environmental NGOs criticize the Commission for not being ambitious enough, for example, with regard to the targets for reducing packaging. Member states are to reduce this per capita by 5 percent by 2030, 10 percent by 2035 and 15 percent by 2040.

The Commission’s measures do not have to be implemented by the member states first because it transforms the directive currently in force into a regulation. However, the member states can determine the penalties for violations of the regulation. These should be effective, proportionate and dissuasive. cw

ITRE postpones vote on buildings directive

The ITRE will not adopt its report on the Energy Performance of Buildings Directive (EPBD) today as originally planned. There is no new date yet, but the vote is expected for January, Europe.Table learned from the environment of the rapporteur Ciarán Cuffe (Greens).

The reason for the postponement was not initially known. However, it can be assumed that the Parliament first wants to analyze the general orientation of the Council at the end of October. The member states want to significantly weaken the renovation obligations. For example, the Council wants to delete stricter obligations for individual existing buildings.

In addition, new position papers are appearing all the time. Yesterday, an alliance of gas associations advocated hybrid solutions from renewable energies and gas heating instead of relying mainly on heat pumps. The German government’s National Hydrogen Council also published a study on the role of hydrogen in the heating market. ber

Energy crisis: Italy plans 50 percent excess profits tax

Italy plans to skim 50 percent of excess profits next year in the energy crisis when large corporations have unusually high revenues. That’s according to a draft of the government in Rome for the 2023 budget, which the news agency Reuters was able to view. Companies that profit from increased oil and gas prices are likely to be burdened.

The Italian government expects the tax to raise a good €2.5 billion. This is based on European Commission requirements and replaces a similar special levy for this year.

The 50 percent is to take effect if a company’s energy revenues in 2022 are at least ten percent above the average level for 2018 to 2021. However, there is a cap in place at 25 percent of net assets at the end of 2021. According to previous plans from the Italian Ministry of Finance, the special levy was actually supposed to be 35 percent and was based on profits rather than the revenue of the groups. In addition, the term was limited to July 2023.

In Germany, Federal Minister of Finance Christian Lindner (FDP) recently said the special levy was on thin ice legally. However, he said, he would have to implement European law. The Finance Ministry in Berlin is therefore planning a special levy equivalent to the European law minimum of 33 percent. In Germany, the profits of affected companies in 2022 and 2023 must be 20 percent higher than the average profit for the years 2018 to 2021. Companies in the oil, gas, coal and refinery sectors will be affected. rtr

Lagarde: inflation peak probably not yet reached

The European Central Bank (ECB) is keeping all doors open for interest rate hikes in the fight against inflation, according to its president Christine Lagarde. How much further the ECB will have to go and how quickly it will have to get there will depend on a wide variety of factors, Lagarde said Monday in a hearing before the EU Parliament’s Economic and Monetary Affairs Committee (ECON) in Brussels. These included the economic forecasts of ECB economists, the depth of the economic crisis, wage developments and inflation expectations.

Lagarde expressed skepticism about considerations that inflation has already peaked. “That would surprise me.” She added that ECB economists still saw clear “upside” risks – financial jargon for the risk that inflation readings could come in higher than expected. “Interest rates are and will remain the main instrument to fight inflation,” Lagarde said. “We are not done with inflation, we still have work to do.”

The ECB’s next interest rate meeting will take place on Dec. 15. At this meeting, the euro watchdogs will have new forecasts from ECB economists on inflation and growth.

“We are determined to bring inflation down to our medium-term target,” Lagarde said. The ECB targets two percent inflation as the optimal level. But in October, fueled by a surge in energy prices following Russia’s attack on Ukraine, inflation was 10.6 percent.

According to Lagarde, the ECB will present the principles for reducing its bond holdings from the APP program in December. With this program, worth billions of euros, the ECB had attempted to stimulate the economy from 2015 onward. Currently, maturing bonds from that program are still being fully replaced. “It is appropriate that the balance sheet is normalized over time in an appropriate and predictable way,” the ECB chief said. rtr

€265 million fine against Meta in Ireland

Following the publication of personal data of up to 533 million Facebook users, parent company Meta must pay a fine of €265 million in the Republic of Ireland. This brings the total fines for Meta in the EU state to
€910 million over the past 14 months.

The Irish Data Protection Commission (DPC) said Monday it had concluded its investigation, which it began in April 2021 following the publication of names, phone numbers and email addresses on a hacking forum. The data protection authorities of the other EU states had cooperated with the Irish authority and agreed with its decision.

Facebook said it was reviewing the ruling. Criminals would have skimmed (scraped) the publicly available data before September 2019 and then posted it online on platforms. However, Facebook’s systems had not been hacked.

It is the fourth time since September 2021 that the Irish authority has imposed a heavy fine on Meta. At that time, the subsidiary WhatsApp had to pay €225 million for violations of data protection rules. This was joined in March 2022 by another fine of €17 million against the parent company, also for data protection violations. In September, the DPC imposed a fine of €405 million on Instagram for serious violations of data protection rules for children.

Meta has appealed against both the Instagram and WhatsApp decisions. Now judges must decide. A ruling is considered a precedent for future investigations of data law violations.

For a long time, the Irish Data Protection Commission was discredited for taking lax action against violations by large IT corporations from the US. International tech companies like Meta are important employers in Ireland. Hundreds of jobs are on the line there following the networking giant’s decision to cut numerous jobs worldwide. dpa

Stefan Schnorr – the digital strategist

Stefan Schnorr is State Secretary at the Federal Ministry for Digital and Transport.

Stefan Schnorr has been involved with digitization since the 1990s. Back then, when he was appointed to the Rhineland-Palatinate Ministry of Justice from his judgeship, one of his first tasks was to set up the first Internet connections in the ministry’s press office. The days of screeching modems are long gone, but the subject still excites Schnorr.

The 59-year-old Schnorr comes from a small town in the Oberbergische Kreis district in the south of North Rhine-Westphalia. He has been State Secretary at the Federal Ministry for Digital and Transport since 2021, where he is responsible for digitization. He had been responsible for digital issues at the Ministry for Economic Affairs and Climate Action since 2010. Despite being close to the FDP, he rose to the position of department head under SPD politicians before Volker Wissing brought him to the BMDV. His rise reflects the increasing relevance of digital issues. “In the past, many saw it as a fun topic that a few experts would deal with. It hadn’t yet arrived in people’s minds at the time,” Schnorr says. Now he is responsible for key parts of digital policy – from broadband expansion and government coordination to data strategy and G7 and EU coordination, Volker Wissing relies on Schnorr.

Germany as a pioneer

The current government is taking digitization much more seriously and creating the right framework conditions. “We have formulated clear goals and intermediate steps with our digital strategy.” This will enable the government to check exactly which goals need to be readjusted. In 2023, the ministry wants to draw up an interim balance sheet for this. Schnorr sees Germany as a pioneer in digitization – with one exception. “Where we have some catching up to do is in the digitization of public administration,” says the State Secretary.

In other areas, Germany is initiating many processes internationally. He said the German government has repeatedly reminded people that the EU must remain open to technology and should not rush regulations. “We have to have the right discussions first so that we have a solution that will bear. If we have the AI regulation and the Digital Services Act sensibly designed, then we will have achieved that.”

EU rules also apply to Twitter

Overall, Schnorr is satisfied with the EU’s role. With laws like the General Data Protection Regulation (GDPR), he says, the EU has a leadership role. “The Americans scolded us at the time, and shortly thereafter, California adopted the GDPR almost word for word.” In the meantime, many US states have passed similar laws, he said.

With laws like the DSA, Germany and the EU also led the movement to combat hate speech on the Internet. The change of ownership at Twitter doesn’t change that either, he said. “All major online platforms must comply with the legal requirements in the EU, and this also applies to Twitter. If this is not done, there will be consequences.”

Schnorr does not use Twitter himself. He says you can’t explain important issues in just a few words, as you are quickly misunderstood. But he does follow the debates on the platform. Otherwise, he participates in most technical innovations and praises the smartphone as an irreplaceable device. However, he doesn’t use voice assistants, as “they gave me too many wrong answers to my questions.” Robert Laubach

Boris Johnson had it so good in his youthful days as a correspondent in Brussels: He quoted non-existent sources, referred to his colleagues as “experts close to the negotiations,” and even invented the odd debate. But above all, he had a talent for turning trifles into big dramas. Remember the crooked bananas?

We at Europe.Table do things quite differently, of course. We research until dawn, try to understand EU texts even in the smallest detail, torture ourselves through incomprehensible press releases and we don’t avert our eyes, not even from tough communication videos of the Commission.

But sometimes, yes sometimes, even a Europe.Table journalist would like to be a Boris Johnson. For example, when she reads through 110 pages of extraordinarily technical regulations (Boris would never do this, of course, not even with his own laws; after all, Prime Minister Boris is now only “Boris tout court”) and suddenly comes across a detail that is so beautiful after all.

Namely this: The EU Commission wants to dictate to you (yes, to you, dear readers, not to your company, not to your association, to you personally!) in the future just how many plastic bags you use per year. After that, it’s over, otherwise your home country will get into trouble with Miss von der Leyen. So if you’re still struggling to figure out what your New Year’s resolution will be this time around, here’s what you would usually do: Research various diets. Promise to never drink alcohol again, ever. Maybe read the latest EU laws…

Look no further, we have the perfect resolution right here: to consume no more than 40 plastic bags a year. Miss von der Leyen wants it that way. And will be watching you very closely from 2025 onwards.

It would have made a nice lurid news story: The Commission President counts your plastic bags. Scandalous! But we’re not Boris. We prefer to calmly analyze what the plastic bag push is all about. We leave populism to others. If we were Prime Minister, we would do the same. Charlotte Wirth

EUROPE.TABLE EDITORS

Till
Hoppe

Charlotte
Wirth

Falk
Steiner

Timo
Landenberger

Corinna
Visser

Lukas
Knigge

Eric
Bonse

Sarah
Schaefer

Manuel
Berkel

Lisa-Martina
Klein

Markus
Grabitz

Stephan
Israel

Claire
Stam

Dear reader,

Around 28 million Europeans worked for digital platform companies such as Google and Uber in 2020. 5.5 million of them are misclassified as self-employed, according to Commission estimates. Negotiations are currently underway on the Platform Work Directive, which aims to improve people’s working conditions. The deliberations of Parliament and Council are taking an unexpectedly long time. However, the first compromises are now emerging in Parliament, as Markus Grabitz reports.

There is also still a lot of need for discussion on the Data Act – as shown by the more than 1100 amendments in the Committee on Industry, Research and Energy alone. Today, the Data Act is on the agenda of the Committee on the Internal Market and Consumer Protection. The industry has made clear demands – as Corinna Visser summarizes.

In the News, we also report on the key points of the Council’s position on the Supply Chain Act and the Commission’s proposal on the Packaging Regulation.

Your
Sarah Schaefer

Platform work: Parliament forges first compromises

By

Markus Grabitz

The first compromises are emerging in the European Parliament in the negotiations on the Platform Work Directive. Most controversial in European Commissioner for Jobs and Social Rights Nicolas Schmit’s draft are the criteria for when a platform is an employer and the mechanism for gaining an employment relationship with entitlement to minimum wage, social security and the right to paid leave.

In the European Parliament, according to information from Europe.Table in the report by Elisabetta Gualmini (S&D), it will come down to a clarification in Article 4 on the “presumption” that triggers an employment relationship. By way of background, the Commission had proposed a reversal of the burden of proof. According to this, in the future, the platform worker would no longer have to prove that they are employed by a platform, but the platform would have to prove that this is not the case.

In 2020, around 28 million Europeans were working for digital platform companies. The Commission estimates that there will be 43 million platform workers in the EU by 2025. The vast majority of platform workers are self-employed. 5.5 million of them are misclassified as self-employed, the Commission estimates. The Commission wants to strengthen the rights of platform workers. The European Parliament has already drafted an own-initiative report on this (INI Brunet).

Platforms are allowed to comment

According to the envisaged compromise in Parliament, there will be two options for this: Either the platform worker challenges their status, or a national authority, in Germany, for example, the Finanzkontrolle Schwarzarbeit (Financial Control of Clandestine Employment), complains to the platform about irregularities in the classification of the people who work for the platform. But once this mechanism is triggered, the platform should be given the opportunity to prove otherwise. This would have a suspensive effect. No platform worker would therefore be classified in an employment relationship subject to social security contributions before the platform could take a stand on the matter.

On the one hand, this helps employees in precarious employment. On the other hand, self-employed people who want to remain independent would benefit. Self-employed people would be free to decide when they work, whether they work and whether they want to accept an order at all. The platform could then also not prohibit them from building up their own customer base.

EMPL Committee vote not until Dec. 12

On Wednesday, the experts want to continue negotiations in the EMPL Committee, therefore, contrary to what was initially planned, the Gualmini report will now only be voted on in committee on Dec. 12. Dennis Radtke (CDU), shadow rapporteur and social policy spokesman for the EPP, emphasizes the importance of the proposal: “The directive offers the chance to help those who have so far not had access to elementary things like minimum wages and social insurance.” In addition, he says, it’s about creating fair conditions for competition: “Those who play by the rules shouldn’t be the ones left out in the cold.” For Uber, for example, there must be more rules of the game than just the road traffic regulations, he said.

The Council has not yet clarified its position. Last week, the EU ambassadors were unable to reach a general alignment. The German government also does not yet have an agreed position. According to reports, Minister of Labour and Social Affairs Hubertus Heil (SPD) and the Green-led ministries are in favor of the directive, while the FDP is opposing it.

Initially, it was said that France rejected the proposal. Now it is heard that a blockade is not to be expected in the Council after all. Luxembourg, Belgium and the Netherlands – after all, member states with liberal participation – as well as Spain are in favor of the proposal. The Czech Republic and other Eastern European states are skeptical. In Brussels, it is said that an agreement in the Council will take time. Whether it will succeed under the Swedish Council presidency (January to June) is not guaranteed.

BDA and Bitkom are skeptical

The Confederation of German Employers’ Associations (BDA) criticizes the Commission’s proposal, saying it pursues the right goal but goes well beyond it. “It cannot be that entrepreneurs who are solo self-employed are forced into employment relationships against their own interests, which are difficult to refute in court.” This would also have far-reaching consequences for businesses.

The BDA also rejects proposals that would extend the definition of digital work platforms to the entire economy: “Companies that organize their work processes digitally should not be considered platforms. That is absurd and contradicts any understanding of a modern, digitizing world of work.”

The digital association Bitkom cautions that the answer to the question of when an employment relationship exists between a platform and someone working there needs to be more closely adapted to the market realities of the platform economy: Many want to retain their flexibility and not become dependent employees: “The directive must ensure that self-employed platform workers who want to be self-employed are not automatically classified as employees,” says Adél Holdampf-Wendel.

Data Act: main discussion points

By

Corinna Visser

More than 1100 amendments in the Committee on Industry, Research and Energy (ITRE) alone show that there is still a lot to discuss in the Data Act. Today, Tuesday, the Data Act (DA) is on the agenda in the Committee on the Internal Market and Consumer Protection (IMCO). MEPs will debate the opinion of Adam Bielan (ECR).

ITRE rapporteur Pilar del Castillo Vera (EPP) presented her draft in mid-September. Until Nov. 9, the political groups could submit amendments (parts 1, 2, 3, 4). The vote in the ITRE Committee is expected in February/March 2023.

Commission has focused too much on the consumer market

The consumer Internet is firmly in the hands of the big gatekeepers from the USA. European industry, on the other hand, sees great opportunities in the industrial Internet: “In Europe, we have all the assets we need to win this market for ourselves,” companies say. However, the Commission’s proposal is too inspired by the consumer market. The consumer market has a completely different structure and follows different mechanisms. The amendments tabled by shadow rapporteur Damian Boeselager (Greens/EFA) also go in this direction.

The companies, therefore, still see a great need for action here. In particular, they would like to see the possibility of regulating more things contractually.

In addition, companies fear for their trade secrets if they have to share data. They would like to be able to impose at least certain contractual requirements on how the secrets are handled – without which there will be no data sharing. That could create more trust in sharing data, they claim. Angelika Niebler (CSU), among others, also argues this way. ZVEI warns that if trade secrets are not protected in a technically and legally secure manner, investment incentives would be lost.

Too much overlap with other regulations

Another demand from the industry is that the Data Act be more clearly distinguished from other legal acts – also to create legal certainty. The companies see overlaps, for example, with the Digital Markets Act (DMA), which already regulates market-dominant companies.

Also, data sharing obligations in the DA are unlikely to conflict with the provisions of the Data Governance Act or the GDPR. In principle, the Data Act is not about personal data, but the distinction is not always clear. Data produced by a car is different from data produced by a wind turbine. Companies would like more clarity here. Sergey Lagodinsky’s amendments for the LIBE Committee also go in this direction.

Cloud change

The Data Act is also intended to regulate the switching of a cloud provider in order to avoid lock-in effects. There are different views on how long such a change should take. The industry argues that it takes much longer for companies to switch providers than for consumers because the IT systems are more complex and the data volumes involved are larger. Companies should be able to agree on the periods and durations customary in the B2B market.

The companies are also critical of the functional equivalence proposal – among other things, customers often want to switch precisely because another provider offers different functions. What the industry needs, they say, are tools, interfaces and standards that can be used to make the switch work.

Also in dispute is the level of switching fees, which the Commission wanted to eliminate altogether after a period of time. Any excessive cloud switching fees charged by dominant companies should be addressed by the rules of the DMA, argues a company representative.

Council delivers progress report – no new compromise

The dossier is still being negotiated in the Council’s preparatory bodies. The Czech presidency has already prepared a second compromise paper and is expected to present a progress report to the ministers at the upcoming Transport, Telecommunications and Energy Council on Dec. 6. Consequently, it will no longer bring the dossier to a common orientation and will hand it over to the Swedish presidency.

Germany has not yet finalized its position

The German government has issued a preliminary statement, but it does not yet address all the issues – for example, cloud switching is missing. The German government expressly reserves the right to make additions. Initially, it is prioritizing five points:

Differentiation from and coherence with the General Data Protection Regulation (GDPR) and other data-relevant European legal norms
Differentiate data access and use regulations more strongly between B2C and B2B applications
Fairness control for contractual terms and conditions to be interpreted more in accordance with legal standards of review (analogous to Directive 93/13/EEC)
Create an appropriate balance between the interests of the public sector, business and citizens in data collection by the public sector
Consideration of special interests of research in the substantial public interest

Western Balkans summit: EU calls for clear commitment

The six states in the Western Balkans are to make a clear commitment to the European Union in the face of geopolitical tensions. “Cohesion with the EU is a clear sign of the partners’ strategic alignment, more than ever as Russia escalates its war in Ukraine,” reads a draft of the final declaration of the EU-Western Balkans summit on Dec. 6, published by Contexte. It, therefore, reiterated the expectation that countries would join the EU’s Common Foreign and Security Policy and also adopt sanctions against Russia.

The message is directed primarily at Serbia, which is trying to maintain its close ties with Moscow despite the Russian attack on Ukraine. But the EU is also demanding more commitment from the other aspirants for membership. The EU remains the region’s most important investor, trading partner and main financial backer, the statement said. “The extraordinary scale and scope of this support needs to be made more visible by partners in their public debate and communication so that citizens can see the concrete benefits of partnership with the EU.”

The summit is to take place in a week’s time in the Albanian capital Tirana. At the beginning of November, Chancellor Olaf Scholz had already invited the heads of state and government of Serbia, North Macedonia, Albania, Bosnia-Herzegovina, Kosovo and Montenegro as well as several EU governments to Berlin. There they agreed, among other things, on closer cooperation in energy policy and new financial aid. tho

Supply Chain Act: Council to adopt position

Member states are expected to go beyond the German Supply Chain Act when it comes to due diligence requirements for companies. At the Competitiveness Council on Thursday, the economy ministers in the EU Council want to adopt their position for the final negotiations with the European Parliament.

A compromise is on the table, which found a majority among the Permanent Representatives on Friday. One of the points still in dispute, however, is the extent to which the financial sector should be involved. France is trying to keep the sector completely on the outside, according to Brussels, and is trying to organize a blocking minority for it.

The key points of the Council position:

The Council also advocates the introduction of civil liability for companies in the event of violations of human rights due diligence obligations. Private international law should be modified in such a way that the de facto granting of justice is substantially improved, according to sources in the German government. In particular, it would then no longer be necessary to sue in courts in EU member states according to the law of the place where the damage occurred. In the past, this had made legal protection virtually impossible and led to the dismissal of victims’ lawsuits against the German textile discounter Kik in a high-profile case.
Climate and sustainability plans are to become mandatory for large companies.
In addition, the directive is to address the entire value chain. The so-called downstream of products will also be included, albeit only slightly. Company-related risks are to be addressed with regard to disposal and recycling.

The German government was unable to prevail in its position of creating a safe harbor for companies. With this, Berlin wanted to create incentives for companies to go beyond regulation in implementing sustainable supply chains. In return, they should not have to accept liability in the event of incidents due to slight negligence. Representatives from German business support this approach, while civil society believes it is a mistake.

Protecting human rights in the supply chain – that is a stated goal of the European Works Council and the World Works Council that has now been formed at Daimler Truck, the world’s largest commercial vehicle manufacturer. “The newly established body forms a strong platform to protect workers’ rights down to small suppliers and human rights in the supply chain as a whole,” said Michael Brecht, head of Daimler Truck’s General Works Council. cd/mgr

Packaging Regulation: Commission plans stricter requirements

Next Wednesday, the Commission will present its proposal for the Packaging Regulation. The legislative text is intended to set standards and quotas to make packaging more sustainable and reduce packaging waste. Europe.Table has a draft of the text from Nov. 24.

It states that from 2030 at the latest, producers must design packaging materials so that they can be recycled (design-for-recycling criteria). From 2035, they must also demonstrate that the packaging can be recycled on a large scale.

Among other things, the text of the law will specify what percentage of the packaging material may consist of recycled plastic. From 2030, for example, the following minimum values are to apply:

30 percent for contact-sensitive packaging consisting mainly of PET;
10 percent for contact-sensitive packaging made of plastic other than PET. The exception is single-use bottles. For these, a 30 percent quota applies;
35 percent for all other packaging materials made of plastic.